England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Wednesday, 26th April 2006

1. LORD JUSTICE HOOPER: On 1st July 2005 in the Crown Court at Canterbury before Miss Recorder Jones and a jury, the appellant was convicted of using a false instrument with intent (count 1) and of attempting to obtain a money transfer by deception (count 2).
2. On 23rd April 2004 the appellant entered the Canterbury branch of the Halifax Bank and sought a loan. He did so partly in reliance on two forged documents, purportedly a driving licence and a gas bill. Mistrusting the "licence", staff called the police but the man had gone by the time they had arrived.
3. The documents were examined for fingerprints and the appellant's prints were found both on the gas bill and the account number paper. Furthermore, a member of the staff of the Halifax Bank in Canterbury identified the appellant as the man who had come into the branch seeking the loan.
4. On 28th April 2004, in other words five days later, the appellant attempted to open an account in a false name at a London branch of the Halifax Bank. On that occasion he also used a driving licence and a gas bill, albeit in a different name.
5. On 27th October 2004, and before his trial for the Canterbury offences, he pleaded guilty to two offences of using a false instrument.
6. His defence at the trial for the Canterbury offences was that he was in no way involved, albeit he accepted that the documents produced by the man in the Canterbury branch were in fact forgeries.
7. Unsurprisingly the prosecution at the trial for the Canterbury offences sought and was given permission to introduce the offences on 28th April. The prosecution relied on section 101(1)(d) of the Criminal Justice Act 2003 and also on section 103(1)(a). By virtue of section 103(1)(a) the matters in issue between the defendant and the prosecution included "the question whether the defendant has a propensity to commit offences of the kind with which he is charged..."
8. The Recorder gave a careful ruling allowing the prosecution's application. The Recorder said this as part of that ruling:

"I find that the previous conviction for using a false instrument five days later than the offence charged does establish a propensity to commit offences of that kind. It shows a tendency to unusual behaviour and the circumstances and features of the later offence bear a marked similarity to those of the offences charged."

9. To succeed in any appeal involving that ruling it will have to be shown that the learned Recorder either made an error of law or, alternatively, reached a conclusion on the facts which no reasonable tribunal could properly reach.
10. It is submitted by Mr Chambers on behalf of the appellant that the Recorder was wrong to conclude that the previous conviction did not establish a propensity to commit offences of the kind which were being considered in the trial. In our judgment it is not arguable that those previous convictions did not establish a propensity to commit offences of that kind.
11. Secondly, it is submitted that the Recorder was wrong in allowing in the previous convictions, given that the offences had occurred five days after the offences with which the trial was concerned.
12. At one point during the course of argument Mr Chambers seemed to accept that if the offences had occurred five days earlier then there would have been no argument. He subsequently withdrew this concession.
13. Does it then matter for the purposes of section 101 and 103 that the offences took place five days after the offences which are the subject matter of the trial? What the jury have to concentrate on is of course the defendant's propensity at the time that he is alleged to have committed the offences with which he is being tried. We can see no justification for saying that as a matter of law one is not entitled to determine propensity at the time of committing the offences by reference to offences committed thereafter. Whether or not offences committed thereafter assist the jury to decide on the issue of propensity is a matter for the jury subject always to the duty of the judge to ensure a fair trial (eg under section 101(3)). In those circumstances we see no merit in this appeal and it is dismissed.