England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Thursday, 24th August 2006

1. LORD JUSTICE HUGHES: This appellant was convicted at the Chelmsford Crown Court of manslaughter.
2. His appeal raises the question as to whether his co-accused was entitled to cross-examine upon a previous conviction for wounding.
3. There were originally in the case three defendants. One pleaded guilty. The manslaughter consisted of pushing a man into deep lake water.
4. The victim, a Mr Watts, was a man of 44, unfortunately suffering from a handicap so that his mental age was approximately 8 or 9. On a Saturday afternoon in March he emerged from a Lakeside public house, went onto a pontoon jutting out into the lake, took all his clothes off and sat down on the pontoon, dangling his feet in the water.
5. He attracted the attention of passers-by. Many watched him. Some called jocular remarks. He was made fun of and somebody, not one of the defendants, took away his clothes and ran off.
6. Among the things called out were shouts of "push him in". The victim was heard to say that he could not swim. Among those who saw all of this were the present appellant, Lawson, and his cousin, Quirk, who were together, and also the third defendant, King, who was not known to either of them. King went down to the pontoon and spoke to Watts. He can be seen to give him a cigarette. As he came back off the pontoon, the other two defendants were approaching it and he turned and returned with them, down to the end of it, close behind Watts. When all three defendants were close behind Watts, laughing and joking, Lawson, who was probably closest to him, made a pushing action by extending his hands and, more or less immediately afterwards Quirk stepped forward a pace and pushed Watts into the water. Very sadly, he never surfaced alive.
7. The appellant and Quirk made off as soon as that was done. King remained on the pontoon, plainly, from the camera coverage, anxious. He then left, but a little later he went back to the scene, by which time police officers were there, and he identified himself to the police as having been there and concerned with what had happened.
8. The Crown case was that all three defendants were party to the offence by encouragement to push the dead mean into the water. Quirk, who had physically pushed him, eventually pleaded guilty shortly before the trial, leaving this appellant, Lawson, and the other youth, King, to be tried. Each of those two contended that he had nothing to do with pushing Watts into the water and had not meant that it should happen.
9. This appellant was shown by closed circuit television camera coverage to have made the pushing gesture to which we have referred. In interview with the police he initially claimed not to have seen Quirk push the man in. His account, however, changed during the series of interviews. At one stage, part way through, he admitted that he had contemplated putting the man into the water but said that he had internally intended that nothing should be done about it. In his final interview he accepted, on more than one occasion, that he and Quirk had agreed to push the man in, though he asserted that he had privately changed his mind before the deed was done.
10. At trial, it was his case that that last admission had been a false one, made because he was anxious to get out of the police station. He admitted the pushing gesture but said that it was merely miming by way of joke, and he said that he had had no idea that Quirk would then do as he did.
11. King was with the other two, close behind Watts when Watts was put into the water. His evidence at the trial was that he did not want the man put in and that he stayed in the hope that his presence would discourage the others from doing it.
12. The defences of the two defendants who were tried were not entirely consistent. It was part of King's evidence that when he passed the appellant and Quirk, who were en route to the pontoon, he had asked them if they were going to push the deceased into the water and that he had received from this appellant the answer "too right".
13. For his part, the appellant had told the police in his last interview and he gave evidence that when King returned from speaking to the deceased, the appellant had asked him what he had been doing on the pontoon, and received the answer from King that he had been going to push the man in but had "bottled out" of it.
14. Each therefore gave an account of incriminating conversation with the other at the point where they met and just before they returned together and with Quirk to the end of the pontoon. Each denied the evidence of the other about his own remark.
15. This appellant was 20 at the time of trial. Between the incident which we have been describing and the trial he had committed and been convicted of an offence of unlawful wounding. That offence consisted of striking someone on the head with a bottle in the course of an altercation at a New Year's party.
16. King was 16 at the time of trial and of good character. When counsel for King cross-examined this appellant, he put to him that he was not a man of good character, rather that he had a conviction for assault. Contrary to Rule 35.5 of the Criminal Procedure Rules no notice had been given either formally or informally of the intention to adduce bad character evidence.
17. We are, of course, conscious that we have not heard from counsel for King but we should say that we are quite unable to understand how that came to happen. It was directly contrary to the Rules which are recent in origin but quite apart from it is directly contrary to every good practice of advocacy, as it has been understood for generations. It may have had the result that the appellant did not consider the possibility that his conviction would go into evidence before he decided whether to go into the witness-box. That seems to us to be a possibility which can be overstated. However, whether that was so or not the unannounced cross-examination certainly meant that the jury heard something which, at that stage, it had not been decided it was entitled to hear. The risk was accordingly taken of a serious trial being compromised or aborted if the judge subsequently held that it was material which should not have been before the jury and that the trial could not continue. In the circumstances, we are wholly unsurprised by the judge's description of this conduct of counsel as reprehensible.
18. That quite unnecessary history gives rise to the first ground of appeal. It is contended that in the absence of notice the judge should not have allowed the question to be asked or the evidence to stand as admitted. We sympathise with those who had to respond to this situation but we entirely agree with the way that the judge dealt with it. He had a discretion under Rules 35.8 to allow evidence of bad character to be adduced, notwithstanding that the required notice had not been given, by permitting notice to be given orally or in a different form to that prescribed, and he had power to shorten time for it. It must be implicit in the power to shorten time that it can be shortened to any degree, and thus dispensed with.
19. While the Rules are there to be complied with, it does happen, not infrequently, that something is said in the course of trial which either creates for the first time the occasion for bad character evidence to be arguably admissible or leads to a different view being justified as to whether an attempt to adduce it should be made.
20. This very experienced judge took into consideration the fact that notice had not been given before Lawson decided to give evidence. That, however, as we have said, was of limited force. First, one would have expected him to be advised that it was a possible eventuality. Second, under the Criminal Justice Act 2003, if the evidence of Lawson's conviction was admissible in the hands of King it could have been adduced as part of King's case whether Lawson gave evidence or not. It is no longer the law that the only way in which such evidence can be adduced is by cross-examination as used to be the case under the Criminal Evidence Act 1898.
21. The judge concluded that the evidence should be admitted. He limited its relevance to the issue of Lawson's truthfulness about King and he directed the jury carefully that it had no bearing on whether Lawson had himself committed the offence or not. In short, he held it went to truthfulness but not to propensity to offend as charged.
22. The correctness of his decision that it did not go to propensity to offend as charged has not been queried by either party on this appeal. We say no more about it except that whilst it was a conviction for an offence of violence, it is readily understandable that on the facts of this case it was held incapable of showing a propensity to commit an offence of this kind, which might be seen as a quite different kind of misconduct and recklessly dangerous rather than aggressive.
23. The substantial ground of appeal is that the evidence of this conviction was wrongly admitted as relevant to truthfulness. As this Court has had occasion to say before, the Criminal Justice Act 2003 introduces a wholly new scheme for the admission of evidence of bad character. The previously existing common law and statutory rules are abolished. The correct approach is not to start with what the old law would have been, but to address the law as it is set out in the new Act. Section 101(1)(e) provides:

(1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if-

...

(e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant."

24. Section 112(1) then provides by way of definition that

"... 'important matter' means a matter of substantial importance in the context of the case as a whole."

24. Was there, in this case, such an issue? In our judgment, there was. The issue was whether or not King had said that he had intended to push Watts in and had said that at or about the time that he turned and returned with Quirk and Lawson to the end of the pontoon. With it went the issues whether or not he, King, was now lying or truthful when he said that he had not uttered any such remark, and whether Lawson was or was not truthful when he said it had been said.
25. It seems to us that that did not cease to be an important issue for either of two reasons which have been advanced. First, it is suggested that even if King had said what was alleged by Lawson that would not by itself constitute the offence of manslaughter. That is no doubt true because, if Lawson's evidence was accepted, King was saying he had had the intention but had abandoned it before the deed was done. That does not alter the fact that Lawson's evidence remained evidence which, if it was accepted by the jury, was likely to reinforce the Crown's case against King, which was of course that he had resumed the intention to push Watts in when he returned to the pontoon with the other two.
26. Secondly, Lawson, in giving the evidence that he did, added that he did not think that King had done anything wrong, and did not take it that King still had the intention to push Watts in. That also, as it seems to us, does not prevent the important issue to which we have referred from arising. There was, after all, every danger that the jury might conclude that those qualifications put on his evidence by Lawson were untruthful because, if he had said anything else, it would mean that he was accepting that he had gone to the end of the pontoon expecting King to push Watts into the water. By contrast, the jury might well think that Lawson's evidence about what King had first said was not tainted by self-protection and was therefore likely to be true. So the issue whether that part of Lawson's evidence was true remained, and its importance to King made it, we are satisfied, an important issue in the context of the case as a whole. Once Lawson had given evidence that King had said this, Lawson's truthfulness or credibility in saying so became an important matter in issue in the case.
27. In order for the evidence of his conviction to be admissible, two further conditions had to be met:

(a) because it was a question of Lawson's truthfulness or credibility as a witness, the bad character evidence could be adduced only if the nature or conduct of his defence was such as to undermine the defence of King (see section 104(1)); and

(b), if that condition was satisfied, the bad character evidence had to have substantial probative value in relation to the issue of Lawson's truthfulness or credibility. For that see section 101(1)(e).

28. It is apparent that there is an element of overlap between the questions whether there arose an important matter in issue between the defendants, whether the defence of Lawson undermined that of King and whether the proposed evidence had substantial probative value. This, as it seems to us, will often be the case but it remains necessary for the question to be addressed seriatim.
29. This evidence given by Lawson did undermine King's defence. It was an important part of King's defence that he had never contemplated touching Watts, that he had only gone near out of curiosity, that he had done no more than offer him the kindness of a cigarette and that it was Lawson who had spoken of pushing him in whilst he, King, was simply an innocent bystander. If accepted, Lawson's evidence, however qualified, that King had made the remark alleged undermined that defence. We are satisfied that it did not cease to undermine it for either of the two reasons which we have previously analysed.
30. Once gateway (e) is passed there is no discretion in the judge to exclude bad character evidence as there is where application is made by the Crown under gateway (d) or (g). Nevertheless, although discretion does not enter into it, an exercise of judgment is called for, because if objection is taken to the evidence being adduced, the judge must determine whether it has substantial probative value in relation to the important matter in issue which arises. That applies to a case where the bad character evidence is advanced as going to credibility or truthfulness, just as it does when the evidence is advanced as going to propensity to offend as charged.
31. This is one of several respects in which the law relating to the admissibility of the bad character evidence has been changed by the Criminal Justice Act 2003. Under the previously existing provisions of the Criminal Evidence Act 1898 section 1(3)(iii) formally 1(f)(iii), once defendant A had given evidence against defendant B, which included any case in which the nature or conduct of his defence undermined that of B, there was no restriction upon what could be put to him in cross-examination. The earlier statute proceeded by providing the defendant with a shield against cross-examination as to bad character, but then stipulating that he lost that shield in certain circumstances of which this was one. The new statute proceeds by a different route. Cross-examination as to credit is no longer unrestrained. Whether evidence of bad character is adduced by cross-examination of the defendant or otherwise, it must have substantial probative value in relation to the issue.
32. This Court pointed out in R v Hanson [2005] 2 Cr App R 21, 299, paragraph 13 that untruthfulness is not synonymous with dishonesty, and that a previous conviction for an offence of dishonesty will not necessarily be capable of establishing a propensity for untruthfulness. The Court was there considering applications made by the Crown to adduce evidence of the bad character of the defendant on trial. In such a case, particular attention has to be paid if the evidence is suggested to be relevant only to truthfulness or credit, to the danger that the jury may even subconsciously and despite careful direction be influenced by the evidence on the question of propensity to offend and thus directly as to guilt. Whether upon examination of the test of relevance under gateway (d), or on application of the discretion under section 101(iii), it remains essential that a cautious test of admissibility should be applied to applications of this kind made by the Crown in relation to the character of the defendant who is on trial.
33. It does not, however, follow that previous convictions, which do not involve the making of false statements or the giving of false evidence are incapable of having substantial probative value in relation to credibility of a defendant, when he has given evidence which undermines the defence of a co-accused. No doubt in this case also there exists the risk that a jury may subconsciously and despite direction be influenced by the evidence on the question of propensity to offend as charged as it exists in the case of an application made by the Crown against a defendant on trial. But it remains nevertheless wholly rational that the degree of caution which is applied to a Crown application against a defendant who is on trial when considering relevance or discretion should not be applied when what is at stake is a defendant's right to deploy relevant material to defend himself against a criminal charge. A defendant who is defending himself against the evidence of a person whose history of criminal behaviour or other misconduct is such as to be capable of showing him to be unscrupulous and/or otherwise unreliable should be enabled to present that history before the jury for its evaluation of the evidence of the witness. Such suggested unreliability may be capable of being shown by conduct which does not involve an offence of untruthfulness; it may be capable of being shown by widely differing conduct, ranging from large scale drug - or people - trafficking via housebreaking to criminal violence. Whether in a particular case it is in fact capable of having substantive probative value in relation to the witness' reliability is for the trial Judge to determine on all the facts of the case.
34. It is quite apparent from the shape of this Act that although it uses the expression "propensity for untruthfulness" in both section 103(1)(b) in relation to prosecution applications and in section 104(1) in relation to applications by co-accused, it addresses the various different occasions on which bad character may arguably be admissible separately and provides a different framework of rules for each situation.
35. R v Osborne was one of a series of cases decided by this Court, Sir Igor Judge P presiding, under the title of R v Renda [2006] 1 Cr App R 24, at page 380. Osborne was a case in which the Crown had been permitted at trial to put to a defence witness his previous conviction for a single offence of serious violence, which had resulted in a 2 year sentence of imprisonment. The defendant was charged with robbery committed at a public house. His defence was that the allegation was trumped up by the licensee, to cover deficiencies in his till and other irregularities in his conduct of the house. The defence witness in question had given evidence to support the suggestion that the licensee was guilty of such irregularities. At paragraph 59 of the its judgment this Court said this:

"Welsh [that is the witness] had as recently as February 2003 been sentenced to two years' detention for an offence of serious violence. The judge agreed with the Crown that he could be cross-examined about it. The evidence of the conviction fell within s 100, particularly germane to the fundamental question whether or not a robbery had taken place. Without knowing of Welsh 's character, the jury would have been deprived of important evidence of substantial probative value in relation to the issue of the credibility of Welsh' s evidence on the vital question whether Mr Cleverley had fabricated his complaint, or whether in truth he was rightly to be regarded as a victim.

We cannot find any principled basis for interfering with the judge' s decision."

36. We have been helpfully referred in addition by Mr Caudle to R v M [2006] EWCA Crim 1126. That must remain its sole identification at least for the time being because this Court has ordered a retrial which may not yet have taken place. There the defendant was charged with an offence contrary to section 18 of the Offences Against the Person Act. The issue was self-defence. He had two recent previous convictions for aggressive violence. The Crown successfully applied to adduce evidence of them before the jury. The judge directed the jury that that evidence went both to propensity to offend as charged and to truthfulness. This Court allowed the appeal on the basis that although the evidence was relevant to propensity to offend as charged, that is to say that the defendant acted on the present occasion aggressively or in self-defence, it did not go and could not go to truthfulness.
37. Understandably Mr Caudle drew our attention to that decision. However, in that case, the proposition that convictions could not go to truthfulness or credit was presented to this Court as a matter of agreement. It was not the subject of argument. The Court was not referred to the decision in Osborne, which we have just cited. It was moreover a case of a Crown application in relation to the defendant on trial. It was not either an application by one side or the other in relation to a witness, as Osborne was, or an application by one accused in relation to a co-accused whose evidence undermined his case.
38. On behalf of the Crown in the present case Mr Levett accepted, as it seems to us wholly correctly, that not every past conviction or other episode of bad character on the part of a witness whose truthfulness or credibility is in issue will be capable of having substantial probative value on that question. The judge must address on the differing facts of each case the question whether the evidence proposed is capable of having substantial probative value, not some possible theoretical relevance to the issue which arises. Where the issue is truthfulness or credibility, he must address the question of whether it is capable of having substantial probative value in relation to that issue. If the evidence has such value, there is no discretion to exclude it. If it has not, it cannot be admitted. We accept that it may well be that, for example, a single conviction for an offence of shoplifting especially some time ago might not be held to be capable of having substantial probative value on an issue of truthfulness or credibility. As in other areas of the application of this part of the Criminal Justice Act 2003, the feel of the trial judge will often be critical. This Court is unlikely to interfere unless it is demonstrated that he is plainly wrong or Wednesbury unreasonable. We endorse on this point the words of Sir Igor Judge in Renda at paragraph 3.
39. We should add for completeness out of deference to submissions made to us that we do not accept the proposition that if a defendant has a history of bad character which the judge holds not to be capable of having substantial probative value on the issue of his truthfulness or credibility, so that the application to adduce evidence of it fails, then it follows that that defendant is entitled to a conventional good character direction. It does not follow. The good character direction is appropriate to those who are, or who the judge rules may be treated as if they are, those without known bad character of any kind. It does not extend automatically also to those whose bad character exists, but is not of sufficient probative value or relevance to be admitted against them. Still less does it extend to those whose bad character is excluded as a matter of discretion.
40. Wherever a co-accused proposes to adduce bad character evidence under gateway (e), he should always, without exception, alert counsel for the other defendant to his intention. That is so that the latter can take objection, if he properly can, and it is that the judge can rule, after proper argument on both sides, whether the evidence is admissible or not. That requirement that counsel be alerted is not a substitute for the notice called for by the Criminal Procedure Rules, where the possibility of such an application can be anticipated. It is, however, a practice which must be observed even in any case where the Criminal Procedure Rules notice either has not or could not have been given.
41. In the present case, the unannounced cross-examination of Lawson put the judge in a very difficult position. We are quite satisfied for the reasons which we have explained that he was right to rule that the conduct of Lawson's defence had been such as to undermine King's defence and that an important matter arose in issue between the defendants, namely whether King had said what was alleged and thus whether Lawson was truthful about it.
42. It is no doubt because argument arose without proper forethought on the part of counsel for King and thus without proper scope for consideration by counsel for Lawson, or the judge, that the judge did not address the questions which arose in the manner which we have indicated. It looks as if he was referred to Archbold and to the reference there contained to the decision of the House of Lords in R v Randall [2004] 1 Cr App R(S) 26. But it seems from what we can tell that he had no more material to go on and no more assistance than that. The judge said this:

"In those circumstances, I have come to the conclusion that the learned editors of Archbold are correct in referring to the decision of House of Lords in R v Randall... I read: 'It seems likely that the courts will adopt the R v Randall test to gateway (e) where there is an important matter in issue between co-defendants to where they directly blame each other and exculpate themselves. Evidence of bad character of one of the defendants will be said to have substantial probative value in relation to that issue if it tends to show that version of the facts put forward by one defendant is more likely to be true than the version of the other defendant.'

So I allow those questions to be asked because, in my view, they ago to the truth of them. They do not (and I wish [counsel] to pay a particular close attention to this), go to propensity to commit acts of violence and he is not entitled to suggest to the witness or to make any submission to that effect to the jury in his final speech."

43. Randall was a case which was really about propensity to offend as charged. It was a case where the offence must have been committed by one or other of the two defendants charged and each of them blamed the other. Accordingly Randall does not provide a definitive answer to the question that was posed before the trial judge and which is posed before us. As we have said, the judge did not have the benefit either of the sustained submissions which we have had or of the decision of this Court in Renda (Osborne). In the light, however, of those submissions and of that decision, we are satisfied that it is quite impossible to fault the judge in the conclusion to which he came. He was entitled to say that the evidence of the previous conviction was capable of having substantial probative value. As this Court observed in Renda, a crucial feature of these cases will always be the feel of the trial judge for the way that the case is developing, the way evidence is given and the conduct of cross-examination. In those circumstances that is sufficient to conclude the issue before us in this case and sufficient to dismiss this appeal.
44. We have, however, in any event reached the clear conclusion that even if we had decided that this conviction ought not to have been before the jury, this is nevertheless a conviction which is wholly safe. This jury was not allowed to think that the conviction made it any more likely that Lawson had committed the offence. It seems that counsel for King, having introduced it, made no further reference to it in his closing address to the jury. The jury had enquired with some perspicacity why it had been told of the conviction and what use it could make of it. It then received from the judge a very clear direction that it had no bearing at all on whether Lawson was guilty, but only had the limited relevance of going to whether he was truthful in what he had said about King. Although Lawson's defence undermined that of King in the manner which we have explained, this, unlike Randall, was not the kind of cut-throat case in which it had to be the case that one or other of the two defendants tried was guilty of the offence. The defences of these two men ran in parallel rather than in direct conflict. If King was not guilty, that did not make Lawson guilty. It left the jury to judge separately in his case whether he was a party to the push by Quirk or not. All that the conviction did, even if it had been wrongly admitted, was to weaken the evidence against King; it did not strengthen it against Lawson.
45. Quite apart from that there are other factors. The really important evidence in the case came in the form of closed circuit television coverage which was uncontradictable and which we have seen. That shows that Lawson approached Watts with Quirk, his cousin with whom he had spent the day and with King in close attendance. Immediately before Watts was pushed into the water Lawson was closest to his back, and makes the pushing gesture or movement. It may be that he looked towards the audience as he did so, but then almost immediately Quirk steps forward and pushes the man in. King at the time is just to one side, with his hands in his pockets. Quirk and Lawson immediately made themselves scarce. King remained looking anxiously at the water and apparently waiting for Watts to surface. Whilst in this case, of course, the jury might have convicted King also, there was plainly a proper basis for treating him differently. He had been independent of the other two, whom he did not know. He had been to speak to Watts and left him quite undisturbed. He remained after Watts went into the water at least initially, and he had come back and presented himself unasked to the police in order to tell them what had happened. Moreover, his account of what had occurred was consistent throughout. Lawson's was not and included a number of admitted lies. King had always denied any complicity in pushing Watts into the water. Lawson had admitted it in interview, in the presence of his solicitor, on more than one occasion. Quirk had photographed what happened on a video camera mobile telephone and there was evidence from the interviews that Lawson was aware of it and was party to it being done. In other words, King's acquittal does not in this case carry the implication that the jury ignored the judge's direction and convicted Lawson by treating his conviction as evidence of propensity to offend as charged. The combination of strong evidence and the very limited nature of the bad character evidence, would have convinced us in any event that this conviction is wholly safe.
46. We need to deal, briefly, with sentence. Lawson was 20 years of age. In passing sentence the judge confined himself to passing a sentence of 13 months (after allowance for time in custody) without stipulating its nature. In error, when that sentence was recorded in the Crown Court records, it appeared as a sentence of imprisonment. In view of the defendant's age, it should of course have been a sentence of detention in a young offender institution. There is and can be no challenge to its length, but the error needs to be repaired. We grant leave to appeal against sentence. We allow the appeal against sentence to the extent that we quash the sentence of imprisonment and substitute for it a sentence of 13 months' detention in a young offender institution. Accordingly to that extent the appeal against sentence is allowed and the appeal against conviction is dismissed.
47. MR CAUDLE: For completeness, Sir John also passed a consecutive sentence in relation to the section 20 matter.
48. LORD JUSTICE HUGHES: Consecutive?
49. MR CAUDLE: A total of 18 months. Initially he said 12 months plus 6. For a reason I cannot now remember, we juggled with the figures so my Lords might grant the identical appeal in relation to that sentence, in section 20 making it young offender institution?
50. LORD JUSTICE HUGHES: Let me have the details. You are quite right to remind us, Mr Caudle, I had not appreciated it. Thank you. Five months consecutive it was for the section 20 offence. Well, for clarification the same adjustment must be made to the sentence which was passed for the separate offence of unlawful wounding. That was 5 months. For the same reason the sentence of imprisonment is quashed and a sentence of identical length of detention in a young offender institution is substituted. The net effect for this appellant is that the length of his sentence remains 18 months and we are reassured to hear that he has in fact been detained in a young offender institution since his trial. Thank very much, Mr Caudle.
51. MR CAUDLE: Out of interest, my Lord is absolutely right that Sir John had no more assistance than Archbold when of course the jury were out and we had to deal with it in a hurry.
52. LORD JUSTICE HUGHES: Thank you very much.