England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		16th May 2006

1. LORD JUSTICE AULD: On 6th October 2005, before His Honour Judge Steiger QC and a jury, the appellant, Marvin Isichei, was convicted of two offences of assault occasioning actual bodily harm and an offence of robbery. On 21st October 2005 Judge Steiger sentenced him to one year's imprisonment for each of the offences of assault occasioning actual bodily harm and five years' imprisonment for the robbery, all the sentences to be served concurrently and also concurrently to a sentence of imprisonment that he was already serving. Mr Isichei was acquitted by the jury on another count of robbery said to have arisen out of the same incident.
2. He appeals against conviction and sentence by leave of the single judge.
3. The prosecution case and evidence were in summary as follows. At about midnight on 24th/25th November 2004 two first year university students, Ffion Harvey and Michelle Hancock, went to a bar in Manchester city centre known as the Lucid Bar. Whilst there they saw two black men whom Michelle Hancock was later to describe as their assailants. There was a video recorder in the Lucid Bar that showed one of the black men to have an appearance consistent with that of Isichei.
4. At about 2 in the morning the two girls, with three white men whom they had met in the bar, went in a taxi to a club called the Circle, but found it closed. They decided to look for another club and got into another taxi. Once in the taxi, one of the men mentioned ringing someone he called Marvin. He spoke to someone on his mobile telephone. As a result of, or, at any rate, at the end of the call, the man who had made it suggested they go to a club called the Press Club. That is where they went.
5. The potential relevance of that remark, as it was canvassed at trial, was that it supported, with other evidence, the identification of Isichei as one of the robbers, since his first name is, as we have indicated, Marvin. As will appear, its admissibility as part of the prosecution case was and is disputed.
6. When the five arrived at the Press Club, they found it was open, but the doorman would not let them in. On Ffion Harvey's evidence, the same white man rang Marvin again. On Michelle's evidence there was no such second telephone call. On the evidence of both of them, a black man came out of the club, and, after some conversation with the doorman, he let the girls in, but not the three white men. Once inside, the girls saw the two black men whom they had seen at the Lucid Bar.
7. Shortly afterwards, the two girls left the Press Club on their own to walk towards the station. On their evidence, while they were walking a taxi drew up and the two black men whom they had seen at the Lucid Bar and the Press Club got out. Ffion said that one of them said he want his "coke" back which she took to be a reference to cocaine. In cross-examination she conceded as a possibility that he might have used another word sounding something like it, say coat. Michelle's evidence was that he definitely used the word "coke", and that he mentioned at some point that he wanted cocaine. They said that they told the two men they did not know what he was talking about. One of them grabbed Ffion Harvey and said he would strip her naked. According to Michelle he pushed Ffion to the ground and he removed her, Michelle's, ear rings. That was the subject of the other count of robbery, of which he was acquitted. The two men then took the girls to a bank cash dispenser where they assaulted them, the subject of the charges of assault occasioning actual bodily harm. As a result, Ffion withdrew £200 from the dispenser and gave it to, or threw it, at one of the men. A good deal of this was recorded on the bank's external CCTV recorder, showing one of the black men to have an appearance consistent with that of Isichei.
8. The two girls then hailed a taxi and told the taxi driver what had happened. They then spoke to a police officer from a passing car that the taxi driver flagged down.
9. Later the next day, 26th November, the two girls made witness statements to the police that were broadly consistent, one with another, save that, initially, Michelle did not say that they had seen the two black men in the Lucid Bar, but only later on that night. Subsequently, she made a further witness statement saying she had seen both of them in the Lucid Bar.
10. On 18th February 2005 Isichei was arrested and interviewed. He told the police that he had not been working in the previous November and did not remember where he had been on the night of 25th/26th November. He acknowledged, however, that he had often been to the Lucid Bar and the Press Club.
11. On 25th February 2005 the police conducted a video identification parade for each girl. Ffion identified Isichei as the man who had let them into the Press Club and as one of their attackers. Michelle did not identify him as one of them, saying that she was not certain, but her evidence was that the person who had been in the Lucid Club and the one who had let them into the Press Club was one of them.
12. The defence case was mistaken identification. Isichei gave evidence to the following effect. In September 2004 he had set up a company called Iceberg to recruit people to work in clubs. In November 2004 his girlfriend was about to have a child by him and he had not stayed out as late as he had usually done. He had frequented the Lucid Bar and the Press Club. He could not say that he had not been in the Lucid Bar on the night in question, but he had not been a party to the robbery and the assaults. As to the CCTV recordings at the Lucid Bar and the bank, he maintained that the representations of one of the men did not include him.
13. Two issues arise on this appeal, both of them Mr Mark Monaghan for Isichei raised on his behalf before the judge. The first arises out of an application by Mr Andrew Long for the prosecution at an early stage to adduce evidence of Isichei's bad character in the form of a conviction for having been concerned some six and a half years' before, in the importation of cocaine, an application that the judge granted. The second issue arose from an application by Mr Monaghan to exclude as inadmissible hearsay the evidence of the girls of the reference to Marvin, the relatively unusual first name of Isichei, by one of the white men when telephoning to find a club that was open after they left the closed Circle Club. The judge refused that application.
14. As to the first of those matters, proof of Isichei's conviction of having been concerned in the unlawful importation of cocaine, the prosecution's application by Mr Long was made pursuant to section 101(1)(d) of the Criminal Justice Act 2003 as:

"... relevant to an important matter in issue between the defendant and the prosecution."

15. Mr Long maintained that the conviction was relevant to the issue of Ffion's and Michelle's claim that one of their attackers was Isichei, in that he had asked for cocaine, to the telephone call to Marvin and to Ffion's identification of him as one of the two attackers.
16. Mr Monaghan objected to the conviction being put in evidence, maintaining that it was not relevant to any important matter in issue in the case. It did not show a propensity to commit the offences in question, as would now continue to be admissible under the 2003 Act; and a single conviction did not, in any event, show a propensity to do anything. He submitted that, in any event, it was unfairly prejudicial to the defence case and should be excluded in the judge's residual discretion in section 101(3) of the 2003 Act, because it was inconsistent with the two girls' account, which contained no suggestion that they had cocaine at the time in question that the appellant might have wished to retrieve.
17. The judge ruled in these terms on Mr Long's application:

"My conclusions are that the matter in issue is not conventionally in these applications a propensity to commit the type of offence with which the defendant is charged. That is not the point. The matter in issue in the present debate is identity. The defendant says that he was not one of the two men who robbed the two female victims. It is of course relevant that the defendant is identified by one of the victims as being the culprit. It is further relevant that the two victims speak of Marvin as being the person spoken to by an unidentified male and a person later appeared in response to their telephone calls. It must also in my judgment be relevant that the defendant is connected to cocaine, when cocaine was the motive for these offences. Even though only one previous conviction is involved, it seems to me that the situation is such that that conviction would and could have been admitted, even under the old law, having, as it does in my judgment, positive probative force pursuant to the judgment in the well-known case of DPP v P."

18. He continued:

"... the jury will most certainly be told that the previous conviction does not in any way establish any propensity or disposition or make it any more likely that the defendant was one of the two robbers ..."

19. So, the judge made it clear in his ruling on admissibility that the evidence of the drug conviction was relevant not to propensity to commit offences of robbery and/or assault, but simply as to identification of Isichei as one of the robbers and attackers. Its relevance, as the passage we have cited shows, was that it showed Isichei was connected to cocaine in the sense of having an interest in the drug. The prosecution duly put the conviction, though not the sentence, before the jury.
20. After both girls had given evidence, differing slightly, as we have said, as to the reference by one of the black men from the taxi to cocaine, Mr Monaghan raised these matters with the judge. He suggested that the evidence of the previous conviction could only be relevant to the issue of identification and that, on the judge's ruling, the jury could only regard it as relevant if they were satisfied that the appellant had used the word coke and in doing so was referring to cocaine. If not, he submitted the connection could have no relevance, and all that would be left was unfair prejudice to the appellant, which no direction by the judge could overcome.
21. The judge responded by observing that there was no serious evidential basis for concluding that, if the appellant had said he wanted the coke back, it could be a reference to anything other than cocaine. However, he said that he would direct the jury that, if they thought it was a reference to something else, they should disregard it, a direction which he duly gave when directing them to the relevance of the conviction to the issue of identification.
22. This is how he dealt with that matter in his summing-up when identifying a number of features that he had catalogued as being potentially capable of supporting the prosecution case on identification:

"The third feature that is potentially capable of supporting her identification is the defendant's apparent connection to cocaine, because you know that he was convicted of being concerned in the importation of cocaine some five or so years ago. This is only a supporting circumstance, or capable of being a supporting circumstance if you are sure that cocaine was what the assailants were talking about. If for example you are sure the assailants were talking about a coat, or coca cola or anything else that rhymes with coke, you should disregard it because it would be irrelevant. But if you thought that the assailants were talking about cocaine for whatever reason, the fact that the defendant has been convicted of being concerned in its importation is some evidence that you are entitled to take into account if you see fit as supporting Ffion Harvey's identification."

23. The apparent reversal of the burden of proof in two passages in that paragraph from the judge's direction is not a point that has been taken on the appeal and it was clearly a matter that would not have attracted the jury's attention in the context of the summing-up as a whole.
24. Then, continuing to the second passage where he dealt with this issue:

"And may I say one final word by way of legal directions about the defendant's conviction for being concerned in the importation of cocaine. That is only relevant to the issue of identification in the circumstances that I have just referred to. It is not evidence of any tendency or propensity to commit this or any other type of offence and you must not think that because the defendant has that conviction, that is of itself evidence that he committed this robbery. That would be unfair and improper and I so direct you."

25. Mr Monaghan has renewed his submissions made to the judge on this appeal. First, he returned to the point he made in submissions after the girls had given evidence, of the prejudice to Isichei if the jury could not be sure that he, or the assailant whom Ffion identified as him, had referred to coke when first accosting them. The prejudice in this respect, he argued, was that the jury would hear about the conviction before deciding whether, depending on their view of the girls' evidence, the reference was after all relevant. It was prejudice, he maintained, that could not be overcome by the judge's directions. It was a direction, he suggested, which was not, in any event, adequate, citing a passage from the judgment of the Vice President, Rose LJ, giving the judgment of this court in Edwards, Fysh, Duggan and Chohan [2005] EWCA Crim 1813 at paragraph 3.
26. Secondly, and equally importantly, Mr Monaghan has maintained that evidence of Isichei's previous involvement in an importation of cocaine some six or seven years before, would not have been admissible in the quite different context of these charges and evidence to support them as similar fact evidence under the old law as stated in the well-known authority of DPP v P.
27. Thus, he maintained, though not parcelled as propensity in the judge's direction, that is what it was essentially. He maintained that it could not, in the terms of section 101(1)(d) of the 2003 Act, be relevant to an important matter in issue. It would simply be part of a broader pre-2003 Act issue for this purpose. The Crown's real case for adducing this evidence, he maintained, was one of propensity as inclusively indicated in section 103(1)(a) and (2) of the 2003 Act, which a bracketing of cocaine importation and robbery and assaults, coupled with mention of cocaine, cannot satisfy. Again, he relied on prejudice. He relied on the analysis in this respect of the court in R v Hanson and others [2005] EWCA Crim 824 in the judgment of Rose LJ at paragraph 7 and 9.
28. If all else failed, he relied on the long interval of time, some six and a half years, between the two matters as a reason, by reference to section 101(4) and (3), for the judge to have excluded this evidence on the ground of its unfairness.
29. Mr Long's reply to those complaints was that they misrepresent the purpose of the evidence and the judge's declared reason in his ruling and in his summing-up to the jury for admitting it. It was not to use it as similar fact evidence, or as evidence of propensity, but because it was arguably relevant because it showed a connection with one of the robbers, who, on one reading of the evidence, committed the robbery to retrieve cocaine or payment in lieu. It was not necessary, Mr Long submitted, to categorise the evidence either as going to propensity, or identification in the similar facts sense of the use of that term. Its relevance was as part of the story going to proof of guilt.
30. The arguable connection he said, the relevance of it, was that it gave rise to an inference that Isichei was a cocaine dealer, which entitled the jury to consider whether it was a mere coincidence in this case of disputed identification that he had been involved in the past in the importation of cocaine.
31. Mr Long also maintained that the judge dealt accurately and adequately with the relevance of the previous conviction in his summing-up in the passage we have read. He added that the strictures of the Vice President in Fysh and others as to the need for a clear explanation as to their relevance were in a context where the evidence in question had been admitted to show propensity; not the case here.
32. In our view, and paying all due allowance to the complexities introduced into this area of law by the 2003 Act, this was not a direction as to propensity -- quite the reverse. It was expressly a direction as to identification through the medium of a connecting factor so as to place Isichei in a discrete category of person interested in cocaine, so as to tie it to the girls' evidence as to the mention of cocaine by one of their assailants. However you look at it, the connecting factor is one in which the prosecution sought to find a way to support the evidence of identification: not a propensity to commit robbery or assault.
33. The further question, which arises under section 101(3) of the 2003 Act, is whether, in introducing facts before the jury which showed at least a previous propensity to be involved in dealing in cocaine, may have prejudiced the case against Isichei to such an extent that any direction that he gave could not overcome it. In conventional terms the direction given by the judge, which we have read, was adequate. It is a matter to which we shall return when considering the overall scope for prejudice in the case.
34. The second issue raised in the appeal is the judge's rejection of Mr Monaghan's application, before either of the girls gave evidence, to exclude from it as inadmissible hearsay any reference to one of the white men, with whom they had gone to the Press Club, making a telephone call to the man called Marvin. The judge, as we have said, rejected that application, ruling that the matter was governed by the definition of "statement" in section 115 of the 2003 Act. He held that the word "Marvin" was not a statement amounting to hearsay within section 114 within that definition because it had not been said for the purpose of making anyone believe anything. He added that if he was wrong about that he would have held it to be admissible under section 114(1)(d) as being in the interests of justice. The judge adhered to that ruling following a subsequent request by Mr Monaghan that he should reconsider it.
35. Mr Monaghan has renewed his submissions made to the judge in his arguments in support of the appeal, first, that it is not a "statement" within section 115(3)(a) and (b) so as to qualify for admission under section 114(1).
36. Section 115(3)(a) and (b) read as follows:

"A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been --

(a) to cause another person to believe the matter, or

(b) to cause another person to act or a machine to operate on the basis that the matter is as stated."

37. Mr Monaghan submitted that the unidentified white man clearly had as one of his purposes causing the rest of the group to know and to accept that he was about to call someone called Marvin so as to bring it within section 115(3)(a).
38. Secondly, he maintained that the judge's fall-back expression of view that it would, in any event, have been admissible within section 114(1)(d), as within the interests of justice was not supported by the factors in section 114(2). Such a view, he said, would turn on a series of speculations, not least because the white man who had allegedly made the reference to Marvin had not been traced, involving consideration of the admissibility of oral hearsay dealt with in section 116 and because of differences in the evidence of the girls about that.
39. Mr Long submitted in reply that the prosecution sought to put this evidence in, not as to the truth of the fact that the white man actually called a man whose name was Marvin and who told him he was in the Press Club, but because, if accepted, it could lead to an inference that the person who came out to secure the admission of some of the party to the club was called Marvin, later said by both girls to be one of the robbers and identified by Ffion on the video identification parade as Isichei. There was, therefore, he said in the reference in the taxi to a man called Marvin a strand of evidence connecting one of the robbers with a relatively unusual first name, the same as that of Isichei.
40. Mr Long maintained, therefore, that the evidence was not hearsay within the definition of hearsay in section 115(2) and (3) of the 2003 Act, in that it was not a representation of fact or opinion and it was not made in order to cause another person to believe the matter, or to act upon the basis that the matter was as stated. In any event, he would have relied on the provision of section 114(1)(d) to have it admitted as hearsay in the interests of justice, bearing in mind the factors identified as going to that issue in section 114(2)(a) to (i), which, he submitted, militated in favour of its admission.
41. In our view, the judge may have been wrong in concluding that it was not a statement within section 115(3) and so governed by the Act. That would require a semantically correct and somewhat highly artificial application of the provision in this context in an analysis to what was essentially an inconsequential part of the story so far as the speaker on the telephone at the time was concerned. It is common sense that it is a possible inference that he spoke to Marvin, or someone whom he knew who was at the club, leading, as a result of the conversation, for them all to go there. But even if the man on the telephone had not, in the words of section 115(3)(a), had the purpose of causing the others in the cab to know that he was talking to Marvin, the evidence, if that were the case, would be, if anything, more probative than otherwise. Why should he care, if the story was true, what the others believed as to the truth of the person to whom he was talking or as to what was being said. Their only interest at the time was whether as a result of the telephone call they would be able to find another club to go to which was open. Whatever the position, it seems to us that the evidence about that was clearly admissible in the interests of justice under section 114(1)(d) as part of the story of a common sense series of events, the one leading from the other.
42. We turn now to the question of the safety of the convictions. There is a further and, in any event, critical consideration to which Mr Long referred and upon which he relied in his submissions. That is whether, even if the judge erred in respect of either or both of the matters of which Mr Monaghan complains, such error or errors would have made the convictions unsafe. He described the two pieces of evidence as comparatively minor strands in the context of the prosecution case and evidence as a whole. As to the other evidence going to identification, there was, he pointed out, first, the positive identification of Isichei by Ffion at the video identification parade with which Michelle's uncertainty was not inconsistent. There was also Michelle's recollection of seeing the same man in both premises. Second, the connection of Isichei to the Lucid Bar and the Press Club. Isichei had not denied that he was in the Press Club at the relevant time that night. Third, the video photographs from the Lucid Bar that night and at the scene of the robbery and assaults showed a man whose physical appearance was consistent with that of Isichei.
43. All those matters, which, as Mr Long pointed out, the judge clearly and accurately referred to in his summing-up, were the core of the prosecution case. The two matters in dispute were capable of being supportive of that core case, although individually or together they were not in themselves enough to found a conviction.
44. It seems to us, regardless of the judge's approach to the issue of the admissibility of the evidence of the previous conviction, there was a great deal in the prosecution case that could not have left the jury at any risk of being unfairly prejudiced by it.
45. First, there was the clear identification by Ffion some two or three months after the event in the video identification parade, which the jury plainly accepted. Her evidence was supported, as we have said, by evidence of Michelle consistent to the extent of identifying the same two men in the same two premises before the offence occurred that night.
46. Secondly, the previous conviction was a matter of a wholly different nature, albeit serious, some six years before; the significance of that difference not being lost on any jury, one would have thought, properly directed or not.
47. Thirdly, the issue of cocaine and Isichei's connection to it was already in play in this trial through the girls' evidence as to what Isichei said to them at the beginning of the assaults and in the course of them, an approach whether by pretence or in seriousness to seek the return of cocaine. So, the information as to the previous conviction did not burst upon the scene to introduce a connecting element of cocaine that was not already part of the prosecution case.
48. Fourthly, there is the clear indication, whatever the different issue, that the jury were not so prejudiced against Isichei as a result of hearing of the earlier conviction as not to acquit him on the additional charge of robbery in the indictment. They clearly looked at the matter analytically, issue by issue, and decided that in that respect, whatever his connection with cocaine, he was not guilty.
49. Lastly, and fifthly, are the directions, to which we have referred and which we have rehearsed, in which the judge clearly warned the jury of the precise limits of the relevance of the evidence of the previous conviction and not to treat it as one of propensity or to hold it against him in that way.
50. For all those reasons, we are satisfied that this jury, as English juries are expected to do, were able to put aside what was and what was not relevant to the issue of identification that they had to decide, and loyally followed the judge's direction as to how to do that. That is something we expect of our juries. The whole system is premised on the basis that juries will be loyal to and will understand the judge's directions when difficult matters of this sort arise as they frequently do in the course of trials.
51. For those reasons, the appeal is dismissed.
(Submissions made in relation to an appeal against sentence)
52. LORD JUSTICE AULD: There are two points Mr Monaghan raises in submissions in support of the appeal against sentence. The first is that the judge, in fixing on the figure of five years' imprisonment, said that he had taken into account the change in the law as to the regime for release on remission from sentence. Mr Monaghan submits that if he had taken that change into account in arithmetical terms correctly, allowing for the earlier certain date of release from a prison sentence, it would have meant that his starting point for the sentence was six years and eight months' imprisonment, which, he submitted, was too high a starting point.
53. We have considered the sentence of five years against the nature of the offence and its seriousness. Regardless of the route by which the judge purported to reach that sentence, we take the view that five years' imprisonment is not one which, under today's regime, could be considered in any way manifestly excessive or wrong in principle, and we reject that complaint.
54. The second complaint of Mr Monaghan is that it is said that the judge varied the sentence so that the period of five years started from the date of sentence rather than from the time that Isichei was recalled to serve the balance of a period of a previous sentence. Mr Monaghan derives that submission from the way in which the judge put it in his sentencing remark, saying, after referring to the time spent in custody in these and in other proceedings:

"... the least sentence appropriate on count 4, a sentence which will be concurrent with the balance of that you are serving, is five years' imprisonment, and on counts 1 and 2 12 months' concurrently. Take him down please."

55. It is not at all clear from the way in which the judge put it there, that he did intend, as Mr Monaghan suggests, that the sentence, unusually, would have been ordered to take effect retrospectively from the date of start of previous recall. It is equally consistent, it seems to us, with the sentence operating from the date on which it was made, but thereafter concurrently with the balance of the sentence to be served on recall. That is certainly how the matter should have been dealt with and how, we believe, the judge intended it to be dealt with.
56. We, therefore, dismiss the appeal against sentence.
57. MR LONG: My Lord, I don't know if I am right about this, I wonder if it is necessary for your Lordship to indicate that the time served to date will count against the appellant's sentence, notwithstanding his conviction appeal?
58. LORD JUSTICE AULD: Is it necessary to do that?
59. MR LONG: My Lord, it was last week in the court next door.
60. MR MONAGHAN: I would ask your Lordship to do that in the circumstances.
61. LORD JUSTICE AULD: For the avoidance of doubt.
62. SIR MICHAEL WRIGHT: And in an excess of caution.
63. LORD JUSTICE AULD: All right. We shall do that. Thank you for your assistance.