England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		31st March 2006

MR JUSTICE FULFORD:

Introduction

1. This appeal, brought with the leave of the single judge, has a narrow but important focus. First, it is submitted the appellant's conviction is unsafe because during the course of the summing-up the judge misdirected the jury as to the approach they should take in relation to his previous convictions for violence (following guilty pleas), in that he directed them that this previous offending was relevant, inter alia, to the appellant's credibility. (It is to be noted at the outset both the appellant and the respondent agree his convictions were not relevant to that issue.) Second, it is submitted by the appellant that on the issue in the case to which it is accepted by the parties the convictions did relate, namely self-defence, the directions were vague and unhelpful.
2. Given this court is invited to consider those issues alone, we are able to set out the background circumstances more briefly than otherwise might have been the case if this appeal had raised more wide-ranging issues.
3. It was on 3rd May 2005 at the Crown Court at Lewes before Judge Niblett and a jury that the appellant, now aged 18, was convicted of an offence of causing grievous bodily harm with intent contrary to s. 18 Offences Against the Person Act 1861. Given their decision on that count, the jury were not asked to reach a verdict on the alternative count of unlawful wounding contrary to s. 20 of the same Act.
4. Previously, on 23rd December 2004, the appellant had pleaded guilty to a further count of unlawful wounding (that offence having occurred on 12 June 2004). Bearing in mind matters we canvass later in this judgment, it is necessary to set out the brief facts in relation to that other offence of unlawful wounding.

12th June 2004

5. On Saturday 12th June 2004 the appellant, whilst at a party, had a disagreement with another young man called Streeter during which he struck Mr Streeter using a knuckleduster; the latter thereon collapsed and fainted. The appellant had inflicted a large laceration which led to some 20 stitches.
6. Notwithstanding the seriousness of that attack, when, on 14th June 2005 the judge imposed a sentence of four years' detention for the s. 18 offence, for reasons we will explain hereafter, he imposed no separate penalty for this offence of wounding.

21 August 2004

7. As regards the s. 18 offence, it was alleged by the prosecution that on 21st August 2004 the appellant delivered a blow to the face of the complainant, Michael Roberg, whilst they were both on the seafront at Brighton, with such force that Mr Roberg's cheekbone was fractured below his left eye. It was the Crown's case that the appellant had used a large pebble or stone from the beach which he held within his clenched fist.
8. The appellant accepted he had struck the complainant but suggested that he had been acting in lawful self-defence. Furthermore, he denied he had a pebble or stone in his hand.
9. The central issue for the jury therefore was whether or not the appellant may have hit the complainant in lawful self-defence, and in deciding that issue a factual matter of importance was whether he had hit him with a stone in his hand.
10. Turning to the evidence in somewhat greater detail, Michael Roberg told the jury that he and three friends travelled from London to Brighton for a stag weekend. They arrived fairly late in the evening and they visited a succession of public houses and he thought he had drunk six pints of lager before the incident with which we are concerned. They also went on to a nightclub during the evening where he consumed three single measures of vodka with coke. He said their party was jovial and there were no signs of aggression on part of any of them. Before they returned to their hotel the friends decided to go down to the beach. On the lower promenade they saw a group of teenagers who seemed to be having a fairly serious argument and Mr Roberg noticed that one of the youths was about to hit another over the head with a bottle. Whilst Mr Roberg was trying to disperse the crowd, one of the youths came running out of the crowd having grabbed, Mr Roberg thought, a rock from the beach (although he did not see him do this) and after they exchanged some words this youth hit him in the face. At one stage his friend Andrew Friel was holding his (that is Roberg's) hands behind his back whilst telling him not to get involved. He said he did not provoke the youth, although he accepted during cross-examination that at one stage before he was hit he raised his hands in the air, in order, he said, to indicate the direction in which he wanted the youth to go. He agreed that after he had been hit he tried to kick his attacker.
11. He attended at a series of hospitals and had an operation the following week at the University College Hospital where bruising and swelling around his left eye was noted, which was accompanied by blurred vision. His nose was bleeding and he had a cut to his left cheek. X-rays showed a fracture to the orbit (the bone surrounding the eye) on the left side and displacement of the cheekbone. As a result Mr Roberg underwent surgery and a titanium plate with silicone sheets was inserted. In the doctor's opinion the injury had been caused by considerable force; it was consistent with either a fist being used on its own or with some form of implement such as a stone. The victim has continued to suffer a loss of sensation in the area of his left cheek.
12. Matthew Waldram gave evidence that he had drunk six pints of lager and three or four shots of vodka as well as some alcopops at the night club. He said he was drunk but there was a happy atmosphere amongst the party throughout the evening. He saw the fight on the lower esplanade and he noticed two groups of teenagers standing around two people who were grappling with one another. For his part he decided not to get involved. Next, he saw a third youth pick up a bottle which he swung at one of those fighting. The bottle missed and smashed on the ground. The youth then disappeared onto the beach, as did Michael Roberg and Andrew Friel. He then saw Andrew Friel grappling with Mr Roberg telling him not to get involved as seemed to be his intention, although Michael Roberg had not said or done anything antagonistic. He then saw a youth, who he was 80 per cent sure was the same person who had swung the bottle, come over and punch Mr Roberg in the face. At about this time Michael Roberg raised his arms although Andrew Friel held on to him. Following the punch, Mr Roberg slumped a little and then started to shout back at the youth. The police then arrived and the youth ran straight into the arms of a police officer. Throughout the incident he did not see Mr Roberg do or say anything to the youth who had hit him.
13. Adam Friel gave evidence that he had had a similar amount to drink as the others. When they got down to the lower promenade he saw the large group of local boys and noticed that two of them were having a scrap. He saw a youth from the larger of the two groups smash a large vodka bottle, seemingly with the intent of using it against one of the other group. He tried to step in because he feared that the youth would use the bottle but was stopped by another youth who said "No, it's a fair fight". In any event the bottle was dropped to the ground where it smashed and someone shouted that the police were coming. This seemed to cause the group to disperse. He then turned around to see Mr Roberg shouting at one of the youths standing close by. There was an exchange of words, including swear words, between the two of them. His brother Andrew Friel then went up to Michael Roberg and grabbed him by his biceps as if to pull him back and the youth hit Mr Roberg in the cheek using a pebble. The pebble was a large and dark-coloured which he saw when it was dropped, although he accepted in his statement he said he did not see what happened to it. He described it as being smaller than a fist and the attacker held it with his fingers curled around it.
14. Andrew Friel gave evidence that he was beside Mr Roberg and he saw one of the youths punch him in the face with a fist although he did not notice anything in the attacker's fist. As he had had a lot to drink his recollection was quite vague. Once the punch had been thrown, or indeed immediately before it, he said he may have been trying to move Michael Roberg back by holding on to his shoulders. He thought Mr Roberg was trying to calm things down and that he was trying to hit away the appellant's hands. In the event he stopped Michael Roberg from falling over and the latter lunged forward immediately after he had been punched.
15. Police Constable Janet Percival, having arrived, heard someone say "A lad hit my friend in the face. My friend didn't do anything. I know what he looks like and I can identify him." She was about to take details from the man when he said: "That's him. There's the one who hit my friend. The small lad there. That's him." She then saw the appellant, whom she noticed had glazed eyes which were bloodshot and fixed. She could clearly see his jumper had a large bloodstain on the front of the shoulder which was later acccepted to be Mr Roberg's blood. The appellant was arrested by another officer as he tried to run away and he said under caution: "I haven't assaulted anyone".
16. When interviewed the appellant did not answer any of the questions put to him.

The Defence Case

17. The appellant's case, as described by him in evidence to the jury, was that he had had nothing alcoholic to drink during day, although he went out with friends in the evening and they went to a night club where he drank two or three alcopops. When he left the nightclub at 2 am, the atmosphere in the club was good; he said he was in high spirits and not much affected by alcohol. He came upon the scene we have already described in which two people were fighting watched by a large crowd. He did not get involved in the fight and denied any suggestion of using a bottle or picking one up. He saw someone try to break it up and indeed the two people stopped fighting. As they did so, four men came downstairs and went into the group. As the appellant walked away one of the four men came up to him and started shouting at him, trying to argue with him. The appellant said he had just wanted to go home. He told the man he was not involved in the fight but the latter continued to shout at him and repeatedly threw his hands up towards the appellant's face. He was scared to turn away as he thought the man might jump on him. He felt intimidated and believed the man was going to punch him. In those circumstances, (but only in self-defence) he threw a punch at the man; thereafter, the man tried to get at him but was unable to do so because someone was holding him back. He stressed the man was not being held when he (the appellant) hit him. Moreover, he said that when he hit the man he had nothing in (or on) his hand, apart from the ring he was wearing. He then walked away with a friend but after they had gone 20 to 30 metres he saw the police. The appellant at that stage tried to speak to a woman police officer to explain what had happened but someone pointed him out and she then tried to arrest him. He said he ran away because the officer would not let him explain himself.

The Bad Character Direction

18. A defendant's bad character is admissible if the criteria set out in the Criminal Justice Act 2003 is made out (see section 101 and following). Once admitted it is incumbent on the judge to give the jury a careful and focused direction as to its true relevance. Bearing that in mind, we turn to the directions the judge gave the jury on this issue. He told them:

"The next matter of law that I come to, members of the jury, and I think it is the last before I turn to my summary of the evidence, does arise from a very recent change in the law, the introduction of the Criminal Justice Act 2003, members of the jury, which I hold up the whole Act so that you can see it, the extent of the changes in the law that have recently come about. This particular aspect is one or two sections of the Act, because until this change came about, members of the jury, you would not have heard about this defendant's previous convictions. In this case you have heard evidence that the defendant has a bad character, in the sense that he has two criminal convictions recorded against him, and I will just remind you of those. On 23rd December of last year at this very Crown Court, for an offence of unlawful wounding, contrary to section 20 of the 1861 Act, he entered a guilty plea in relation to an offence committed on 13th June last year. On 19th April, so just a couple of weeks ago, at the Brighton Magistrates Court, for an offence of assault occasioning actual bodily harm he entered a guilty plea, that offence being committed on New Year's Day of this year.

It is important that you should understand why you have heard this evidence and how you may use it. I say at once, members of the jury, echoing and reinforcing what I know Mr. Wainwright has just said to you, that you should clearly not place undue reliance on these previous convictions. Evidence of bad character cannot be used simply to bolster a weak prosecution case, if that were to be your view of the prosecution case in this trial, and certainly cannot and must not be used to prejudice your minds against the defendant. You have heard of his bad character because, in this case, it may help you to resolve an issue that has arisen between the defendant and the prosecution, namely, self-defence.

You may also use the evidence of the defendant's bad character in the following ways: firstly, if you think it right, you may take it into account when deciding whether or not his evidence to you was truthful. A person with a bad character may be less likely to tell the truth, but it does not follow that he is incapable of doing so, and, of course I must point out and do point out that he pleaded guilty to both the other allegations which he faced in recent months. You must decide to what extent, if at all, his previous convictions help you when judging his evidence.

Secondly, if you think it right you may also take his previous convictions into account when deciding whether or not he committed the offence with which he is now charged. You must decide to what extent, if at all, his character helps you when you are considering whether or not he is guilty of this charge. Bear in mind that his bad character cannot by itself prove that he is guilty. It would therefore be wrong to jump to the conclusion that he is guilty just because of his bad character. There it is, members of the jury. Again, I hope I have made that direction clear to you."

Section 101 Criminal Justice Act 2003

19. By s. 101 (d) of the Criminal Justice Act 2003, bad character is admissible if: "it is relevant to an important matter in issue between the defendant and the prosecution." An important matter in issue by virtue of section 103 includes section 103(1):

"(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;

(b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect."

Furthermore, by section 103(2) the following is provided:

"Where subsection (1)(a) applies, a defendant's propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of-

(a) an offence of the same description as the one with which he is charged, or.

(b) an offence of the same category as the one with which he is charged."

The Submissions and our Analysis

20. Against that extract from the summing up and those statutory provisions succinct arguments have been addressed to us by Mr Wainwright for the appellant on the validity of the directions to the jury. As we summarised at the commencement of this judgment, it is submitted, first, the judge should not have directed the jury that they could take these convictions into account when deciding whether or not he had been truthful in his account in the witness box, and, second, the direction that the jury could take them into account when deciding whether or not the appellant was guilty of this offence was too vague in its terms and, in consequence, the jury did not receive the assistance on this issue to which they were entitled.
21. In amplification of those arguments, Mr Wainwright suggests that there was no evidence before the court to indicate the appellant had been untruthful in relation to either of his previous criminal cases. Indeed, as set out above, he pleaded guilty on both occasions to offences of violence in circumstances which did not involve dishonest or untruthful conduct on his part. In this regard "dishonesty" and "untruthfulness" are not the same thing: see R v Hanson [2005] EWCA Crim 824, and in particular the following passage from the judgment of the court given by Rose LJ, the Vice President of the Court of Appeal Criminal Division, at paragraph 13:

"As to propensity to untruthfulness, this, as it seems to us, is not the same as propensity to dishonesty. It is to be assumed, bearing in mind the frequency with which the words honest and dishonest appear in the criminal law, that Parliament deliberately chose the word 'untruthful' to convey a different meaning, reflecting a defendant's account of his behaviour, or lies told when committing an offence. Previous convictions, whether for offences of dishonesty or otherwise, are therefore only likely to be capable of showing a propensity to be untruthful where ... truthfulness is an issue and ... either there was a plea of not guilty and the defendant gave an account, on arrest, in interview, or in evidence, which the jury must have disbelieved, or the way in which the offence was committed shows a propensity for untruthfulness, for example, by the making of false representations."

22. In our judgment it is clear, as Mr Wainwright has submitted, the convictions of this appellant did not establish a propensity on his part to be untruthful. However, the judge did not suggest to the jury that they did or that they could be used for that purpose. Instead the judge directed the jury that they were relevant to the appellant's credibility. In other words, he suggested that a person with this particular bad character may be less likely to be honest/believable than a person of good character. Whilst it is undoubtedly the case that once bad character is introduced properly via one of the gateways created by section 101 it can have relevance (in appropriate circumstances) to issues beyond those that led to its admission, in this case it is difficult to understand how these convictions for violence (in relation to which the appellant had entered guilty pleas) could be said to have any meaningful impact on his credibility. As the Lord Chief Justice said in giving the judgment of the court in R v Carp, Highton and Nguyen [2005] EWCA Crim 1985 at paragraph 10:

"We therefore conclude that a distinction must be drawn between the admissibility of evidence of bad character, which depends upon it getting through one of the gateways, and the use to which it may be put once it is admitted. The use to which it may be put depends upon the matters to which it is relevant rather than upon the gateway through which it was admitted."

Indeed, when dealing with the individual appeal of Carp, the Lord Chief Justice at paragraphs 56 and 57 drew a clear distinction between convictions for dishonesty on the one hand (which may assist a jury on the issue of a defendant's truthfulness) and convictions for violence on the other, and he underlined the approach taken by this court in Hanson that the extent to which previous offending provides reliable evidence of a propensity to be untruthful all depends on the nature and circumstances of the convictions.

23. The appellant's truthfulness was a central issue in the case, but these convictions would not have assisted the jury in reaching conclusions on that matter. Guilty pleas to these convictions for violence could not be said to be relevant to his credibility and therefore on the facts of this case we consider it inappropriate for the judge to have given this direction. (We interpolate to note that when on 29th April 2005 the judge delivered his ruling on the prosecution's application to admit the convictions, his reasons for admitting them related solely to their tendency to prove a propensity/a greater likelihood on the appellant's part to commit offences of this kind.)
24. However, credibility aside, these convictions were properly admitted. There was an undoubted issue between the prosecution and the appellant as to whether he had been acting in self-defence – indeed that was the focus of the trial – and in our judgment the appellant's recent convictions for unlawful violence were a relevant (background) factor which the jury could bear in mind when reaching their conclusions on that issue. The judge directed them that they must approach the convictions with care: as set out above, they were instructed they should not be given undue weight; they could not bolster a weak case; they should not create prejudice in the minds of the jury against the appellant; and alone they could not establish guilt. Against the backcloth of those directions, the jury were told they could take the earlier convictions into account when deciding whether the appellant committed this offence: in other words, did he hit Mr Roberg otherwise than in self-defence?
25. With respect to Mr Wainwright on his second ground of appeal, it is difficult readily to understand what more the judge could have said on the subject. The stark issue for the jury's evaluation was whether his previous admitted acts of violence assisted them on the central issue: was the appellant was acting defensively and lawfully rather than aggressively and unlawfully? Any further elaboration may well have served to confuse rather than elucidate.
26. It follows, in our judgment, these convictions were properly introduced into the trial, and save on the issue of credibility the judge's directions were balanced and appropriate. However, credibility was an issue of primary importance in the case and the judge should not have given an adverse credibility direction that had, as it seems to us, a real tendency to undermine the appellant's case on the sole real matter in issue in this trial, namely his truthfulness when he suggested he had acted in lawful self-defence. This was, in the circumstances, a material misdirection on a core issue. To use the language deployed by this court when considering breaches of the Code of Conduct under the Police and Criminal Evidence Act 1984, it was a misdirection of "significance and substance" which leaves us with very real concerns as to the safety of this conviction, which in the result cannot be upheld.

Result

27. As regards the outcome of this appeal, one possibility that was ventilated before us was whether it would be appropriate, having quashed the conviction under s. 18, to substitute a conviction under s. 20 of the Offences Against the Person Act (the alternative offence on which the jury were not asked to deliver a verdict). We are not able to accede to that proposal. As set out above, this misdirection on the part of the judge went to the central issue of whether this appellant may have been acting in self-defence; there is no sufficient distinction to be drawn between s. 20 and s. 18 in this regard such as would enable us to say that this misdirection would not potentially have had an adverse impact on the jury's decision as to whether self-defence provided a possible answer to a charge under s. 20. Although, self-evidently, intent is a particular ingredient of the offence charged under section 18, self-defence (which includes an assessment of the defendant's suggested state of mind) is an answer generally to any charge of assault from common assault through to an assault charged under s. 18. In demonstrating this point, it is instructive to set out part of the Judicial Studies Board specimen direction on self defence:

"You must first ask whether the defendant honestly believed that it was necessary to use force to defend himself at all …

If you are sure that the defendant did not honestly believe that it was necessary to use force to defend himself, he cannot have been acting in lawful self-defence, and you need consider this matter no further. But what if you think that the defendant did honestly believe or may honestly have believed that it was necessary to use force to defend himself?

You must then decide whether the type and amount of force the defendant used was reasonable. Obviously, a person who is under attack may react on the spur of the moment, and he cannot be expected to work out exactly how much force he needs to use to defend himself. On the other hand, if he goes over the top and uses force out of all proportion to the [anticipated] attack on him, or more force than is really necessary to defend himself, the force used would not be reasonable. So you must take into account both the nature of the attack on the defendant and what he then did…"

28. Self defence, therefore, involves a significant investigation as to what the particular defendant believed, and it follows we are not persuaded that a jury would necessarily have reached a verdict against this appellant under section 20 simply because that offence does not contain the ingredient of specific intent. Accordingly, in those circumstances and for those reasons, we are not minded to follow the suggested course.
29. We turn finally therefore to the consequences of our decision. Given that the section 18 conviction is to be quashed, the result is that because the judge imposed no separate penalty as regards the s. 20 offence committed on 12th June 2004, this appellant (subject to the issue of a retrial) will not have received any sentence in relation to that undoubtedly serious criminal offence of which he remains convicted. We fully recognise that the judge in this case was confronted with particular (indeed insuperable) sentencing difficulties because he resorted, entirely appropriately, to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 for the section 18 offence (which was unavailable for the s. 20 offence, thereby leaving no choice other than a sentence of this kind, see R v Lang [2001] 2 Cr App R (S) 39 and s. 106 A (7) of the Powers of Criminal Courts Sentencing Act 2000). However, in our view this case serves to demonstrate the general point that in most cases when judges are not similarly constrained, they should avoid the device of imposing no penalty when passing sentence for offences of significance which are before the court along with a main or first offence. Instead, judges should impose a condign penalty for each offence, whether or not they are to run concurrently with the main/first sentence. This case demonstrates that imposing no separate penalty may be contrary the interests of justice because if the conviction on the main/first offence is quashed there will be no penalty which the offender faces at all.
30. In conclusion, we quash the conviction for assault with intent to cause grievous bodily harm and that leaves outstanding the issue as to whether or not there should be a retrial.
31. LADY JUSTICE SMITH: Miss Ray-Crosby, what do you say about that?
32. MISS RAY-CROSBY: Could I ask for some short time, say two weeks, for those who instruct me to contact the witnesses.
33. LADY JUSTICE SMITH: Are you applying for a retrial in principle?
34. MISS RAY-CROSBY: My Lady, in principle, yes.
35. LADY JUSTICE SMITH: Because we cannot just give you two weeks before we make a decision. If we decide that in principle you should be entitled to a retrial, and obviously we will have to hear Mr Wainwright on that, it does not of course necessarily follow that one has to take place. You can always offer no evidence if you think that is an appropriate course. But do you apply?
36. MISS RAY-CROSBY: My Lady, yes. It is a serious matter.
37. LADY JUSTICE SMITH: It is. Mr Wainwright?
38. MR WAINWRIGHT: My Lady, in my submission the appellant having now served a considerable period of custody whilst awaiting this appeal and having been successful it would not be appropriate in the circumstances considering he is now an adult and these matters go back to 23rd December 2004.
39. MR JUSTICE DAVIS: In deciding whether or not there should be a retrial, can this court reasonably take into account the fact that no separate penalty was ordered on the other matter? Is it not something we are entitled to bear in mind?
40. MR WAINWRIGHT: It is something, but while it is something you may be entitled to bear in mind, the principal issue is whether a retrial in his particular case would be just and whilst that is an ancillary matter in my submission that should not override and in my submission this case does not merit a retrial.
41. LADY JUSTICE SMITH: Thank you. Mr Wainwright, we are of the view that bearing in mind all the circumstances that have been fully outlined in the judgment of the court we think that a retrial is called for and is appropriate. We therefore make the following directions. The appeal having been allowed and the conviction having been quashed we direct that a fresh indictment should be preferred. The appellant should be arraigned on the fresh indictment within two months of today. We direct that for the present time the appellant be held in custody, however, a bail application may of course be made to the judge of the Crown Court at arraignment. Representation orders for solicitor and junior counsel. The venue of the trial should be determined by one of the presiding judges of the south eastern circuit. I think those are all the directions that we are called upon to make. (Pause) I am receiving assistance from two sources. You first, Mr Wainwright. What did you want to say?
42. MR WAINWRIGHT: The only other matter that concerned me is the question of publicity in relation to the reporting of today's proceedings.
43. LADY JUSTICE SMITH: You are quite right to remind us that these proceedings should not be reported at all pending the conclusion of the retrial, if there is to be one, and of course you recognise from what Miss Ray-Crosby has said that it may be that the Crown will decide in all the circumstances not to proceed. Plainly it will depend upon the availability and willingness of their witnesses, but there must be no publicity until either the end of the trial or an announcement that there is not to be a trial.
44. MR WAINWRIGHT: I am obliged.
45. LADY JUSTICE SMITH: I have to specify the count on which the retrial is to take place. That is the allegation of wounding with intent to cause grievous bodily harm, which alleged offence occurred on 21st August 2004.
46. MR WAINWRIGHT: On the original indictment at trial there was also a count of section 20 on the face of the indictment. In my submission that should remain.
47. LADY JUSTICE SMITH: That should remain on the indictment. Thank you.