England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		21st December 2006

1. LORD JUSTICE KEENE: On 23rd March 2006, in the Crown Court at Croydon, before His Honour Judge Tanzer, the appellant was convicted on three counts. Those were possession of a firearm with intent to cause fear of violence, contrary to section 16A of the Firearms Act 1968, and then counts 2 and 3, offences of criminal damage, contrary to section 1(1) of the Criminal Damage Act 1971. He was sentenced to 5 years' imprisonment on each count, those on counts 2 and 3 to run concurrently with each other and with the sentence on count 1. In fact the sentences on counts 2 and 3 were unlawful because the value in question was less than £5,000, with the result that the maximum sentence available on each of those counts was 3 months' imprisonment. He now appeals against conviction by leave of the Single Judge on one ground and has given notice that he seeks to renew on another ground where leave to appeal against conviction was refused.

2. The charges arose out of events on the evening of 21st July 2004. There was no doubt that someone on that evening had discharged a gun, almost certainly a shotgun, at two cars belonging to Mr O'Riordan who ran a car workshop and car sales firm in South Norwood. The cars were damaged as a result. There was evidence of an earlier dispute between the appellant and Mr O'Riordan over a white Clio van which the former had bought from Mr O'Riordan. The appellant had complained about the brakes.

3. At about 9.45 pm on 21st July, Mr McAuliffe, the publican of a pub called the Two Brewers, located near to Mr O'Riordan's premises, heard two loud bangs outside and, when he opened the door, he saw a man standing by the alley holding a sawn-off shotgun. The man discharged a shot and then walked back past Mr McAuliffe. As he did so, he shouted out: "Tell that Irish cunt I'll be back." He described the man as slim, mid-thirties to forties and 5 feet 7 to 5 feet 8 and wearing a baseball cap. Mr McAuliffe said he was able to get a view of him. Indeed, subsequently Mr McAuliffe picked out the appellant 2 months later at an identification parade held on 21st September 2004.

4. A customer in the pub, Mr Russell, also went outside and saw a man with a shotgun. Mrs McAuliffe also saw a man outside but neither she nor Mr Russell identified the appellant at an identification parade.

5. The appellant gave evidence and denied that he was the person responsible for the shooting. He agreed that he was unhappy about the Clio van which he had bought, but said he was probably at home on the evening of 21st July. He also said that he had been into the Two Brewers pub at the time of buying the Clio. He also made allegations about having been effectively "fitted up" by the police.

6. The critical issue consequently was that of identification. But on the opening day of the trial the prosecution, having given the appropriate notice, sought to have put before the jury details of a previous conviction of the appellant. The application was made under section 101 of the Criminal Justice Act 2003 and referred to a conviction of the appellant, in June 1984, for possession of a firearm without a certificate, contrary to section 1(1) of the Firearms Act 1968. There was little detail available at that stage of the trial about the circumstances of that offence, save that it took place on 28th March 1984 and that the appellant had been in possession of a single-barrelled shotgun, with the barrel shortened to less than 24 inches.

7. The judge ruled that that conviction was admissible under section 101(1)(d) of the 2003 Act, that is to say, he ruled that it passed through gateway (d) because it was "relevant to an important matter in issue between the defendant and the prosecution." The judge relied on section 103(1) and in particular paragraph (a) of that subsection. The relevant provision reads as follows:

   "For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include-

   (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."

   The judge referred in his ruling to this Court's decision in the case of R v Hanson [2005] 2 Cr App R(S) 21, [2005] EWCA Crim 824, and noted that it was a single conviction in the present case relied upon to show propensity. Nonetheless he concluded that possession of a sawn-off shotgun was something which could be seen as amounting to unusual behaviour in the sense in which those words were used in Hanson. He clearly had in mind the passage in that case where the court said, at paragraph 9, this:

   "There is no minimum number of events necessary to demonstrate such a propensity. The fewer the number of convictions the weaker is likely to be the evidence of propensity. A single previous conviction for an offence of the same description or category will often not show propensity. But it may do so where, for example, it shows a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged (compare Director of Public Prosecutions v P (1991) 93 Cr App R(S) 267 at 279 [1991] 2 AC 447 at 460E to 461A). Child sexual abuse or fire setting are comparatively clear examples of such unusual behaviour but we attempt no exhaustive list. Circumstances demonstrating probative force are not confined to those sharing striking similarity. So, a single conviction for shoplifting, will not, without more, be admissible to show propensity to steal. But if the modus operandi has significant features shared by the offence charged it may show propensity."

8. The judge showed that he was aware of the age of the previous conviction in question but he weighed that against the fact that, in his experience, sawn-off shotguns were not that common. He applied his mind to the fairness of admitting this evidence, both under section 101(3) and under section 78 of Police and Criminal Evidence Act 1984. He concluded that its probative value outweighed the prejudice and ruled that the evidence could properly be put before jury.

9. Other than the fact that the judge does not appear to have expressly addressed the question of whether propensity was an important matter in issue, the structure of his ruling is not open to any real criticism. He had regard to all the relevant statutory provisions as well as to the age of the previous conviction and the fact that it was a single conviction.

10. The challenge advanced on behalf of the appellant as to that ruling is relatively simple. First and foremost Mr Saunders submits that one conviction 20 years earlier of this kind could not properly be held to establish, in the circumstances of this case, a propensity to commit offences of the kind charged, in particular, the firearms offence under section 16A. It is emphasised that this was a single conviction for a firearms offence, but while it was said in Hanson that propensity may be shown by a single conviction, that requires a "tendency to unusual behaviour". Mr Saunders contends that nothing here showed any similar modus operandi as between the 1984 offence and the firearms offence charged in 2004. He observes that all that the judge knew about the earlier offence was that the appellant had been in possession of a sawn-off shotgun, with no detail as to how he came to possess it and with no suggestion that it had been used, unlike the present alleged offence.

11. Reference is also made on behalf of the appellant to the passage in paragraph 11 of Hanson, where it was said that:

    "Old convictions, with no special features shared with the offence charged, are likely seriously to affect the fairness of proceedings adversely, unless, despite their age, it can properly be said that they show a continuing propensity."

    It is the reference there to "continuing propensity" upon which emphasis is laid by Mr Saunders. It is stressed that there was nothing here to show that there was any continuing propensity over the intervening 20 year period. The admission of this evidence, it is contended, may well have deeply influenced the jury in arriving at the verdicts which they reached.

12. For the Crown, Miss Purnell contends that the judge properly exercised his discretion. He had been entitled to regard possession of a sawn-off shotgun as sufficiently unusual to show a propensity. He approached the issue in the appropriate way, dealing also with fairness and giving proper directions to the jury. Miss Purnell emphasises what is said in the case of Hanson and other cases about the reluctance of this Court to intervene with decisions of trial judges on this particular issue. It is submitted on behalf of the prosecution that here the judge's decision was not plainly wrong.

13. It is also argued that the previous conviction in 1984 might have gone in at trial under gateway (g), once the defence proceeded to attack the police witnesses. On that basis also it is said the convictions cannot be regarded as unsafe.

14. We begin by observing that the task which the trial judge faces in dealing with an application under section 101(1)(d) is not solely a matter of exercising a discretion properly so described. The first stage of the task is more properly to be seen as an exercise of judgment, when the judge has to determine whether the defendant's bad character is relevant to an important issue between him and the Crown, in this case to whether he has a propensity to commit offences of the kind charged. Having said that, we accept that in making that judgment the trial judge is to be allowed a certain latitude. As indeed was said in Hanson itself at paragraph 15, if a judge has directed himself or herself correctly, this Court will be very slow to interfere with a ruling as to admissibility. That approach has since been endorsed in the case of R v Renda [2006] 1 Cr App R24, [2005] EWCA Crim 2826 Indeed we are unaware of any reported case on propensity and gateway (d) where this Court has overturned the judge's ruling.

15. However, there may still be circumstances where a judge has patently erred. In Hanson, the Court made it clear that, if the judge's judgment as to the capacity of prior events to establish propensity is plainly wrong, then this Court will intervene (see paragraph 15). In effect, that is describing a situation where, on the facts, it was not properly open to trial judge to arrive at the conclusion which he reached. The question in the present case is whether the judge's ruling comes into that category.

16. As Mr Saunders' has stressed, it is the combination of only one previous conviction being relied to show propensity and the passage of time since that conviction which must cause concern. There may be cases where the factual circumstances of just one conviction, even as long ago as 20 years earlier, might be relevant to showing propensity, but we would expect such cases to be rare and to be ones where the earlier conviction showed some very special and distinctive feature, such as a predilection on the part of the defendant for a highly unusual form of sexual activity, or some arcane or highly specialised knowledge relevant to the present offence. In cases with less distinctive features in common, one would require some evidence of the propensity manifesting itself during the intervening period in order to render the earlier evidence admissible as evidence of a continuing propensity.

17. Had the conviction for possession of a sawn-off shotgun in the present case been more recent than 1984, then the judge's ruling would have been more understandable, depending of course on the length of the intervening period. There are no hard and fast rules applicable in this area of law. We also acknowledge the point made by the judge that sawn-off shotguns are not that commonplace, though regrettably they are in the experience of this Court not that rare either. As this Court said in R v Avis [1998] 1 Cr App R 420, [1997] EWCA Crim 3355, such firearms have no lawful use. But we find it impossible to accept that one isolated instance of possession of such a weapon, when this appellant was aged 28, is capable of establishing a propensity on his part to commit firearms offences when he was aged 48. It was simply too slender a basis upon which such a propensity could be founded. In our view, this is a case where the judge was plainly wrong in deciding that that previous conviction was so capable. This evidence, in our judgment, should not have been admitted.

18. It remains to consider the effect of admitting this evidence on the safety of the convictions. There was here evidence of motive, and from the witness, Mr McAuliffe, evidence that it was the appellant who was responsible for the shooting. That identification, however, was by a single witness, who estimated the gunman's age at one point as being between 35 and 40, appreciably younger than this appellant, and who said that the man in question was wearing a baseball cap on this late evening in July which cannot have assisted in the clarity of the identification. One simply cannot know how much effect the evidence of the appellant's previous conviction had on the jury's deliberations, but we cannot say that they were bound to have convicted irrespective of this evidence.

19. It is right, as Miss Purnell contends, that the 1984 conviction might have gone before the jury through gateway (g), once there had been an attack upon the character of the police witnesses, but the judge would have had to apply his mind to that, which he never did, and Mr Saunders argues, it seems to us with some merit, that the defence case might have been conducted in a different way, had the appellant's character not gone in at the outset of the trial under gateway (d) as it did. Moreover, we bear in mind that if it had gone in under that gateway (gateway (g)) rather than gateway (d), the directions given by the judge to the jury would have been different. In the circumstances of this case the judge specifically posed to the jury the question: "Did he [that is to say the appellant] have a propensity to have sawn-off shotguns?" That would not have been a question which would have been appropriate for the jury to consider in the circumstances, had this gone in under gateway (g), unless the judge had concluded that it was capable of showing a propensity which, as we have indicated, in our judgment it was not.

20. In all those circumstances, we have come to the conclusion that these convictions are unsafe and cannot stand. We do not need therefore to deal with the appellant's renewed ground of appeal. We would only say this, in case any guidance on it might assist in any future proceedings. We have read the transcript of the PII proceedings which took place in chambers. We can see nothing there which leads us to believe that this prosecution failed in its duty of disclosure. In any event, for the reasons we have indicated, we allow this appeal and we quash the appellant's convictions.

21. LORD JUSTICE KEENE: Now, Miss Purnell, what is the Crown's position on the issue of retrial?

22. MISS PURNELL: I understand that through discussion with my learned friend that there is a medical position with regard to this appellant and it is something that I would be interested to hear about. At the moment, I have no clear instructions whether there is to be a retrial or not.

23. LORD JUSTICE KEENE: Mr Saunders, can you help on this?

24. MR SAUNDERS: My Lord, yes, it is a long and involved situation. I can assist with a brief medical report. In a nutshell, he has had heart disease for some time and has had several heart attacks and had various operations. That is combined with a difficult form of diabetes.

25. The learned judge in his sentencing remarks said this, with regard to his medical condition:

    "I accept, because of your physical condition, you may die in custody."

    It is obviously that serious. It may be helpful if I read out this letter and may be if I can -- sorry I did not get a copy--

26. LORD JUSTICE KEENE: What we would like to do in the first place is for you and the Crown to consult on this, because Miss Purnell and those instructing her have to make a decision as to whether they are applying for an order from this Court for a retrial. Whether we need to be given all the details may depend upon that. We are conscious that the appellant has been in prison now for, I think, nearly 9 months of a 5 year sentence. So, there is still quite a lot of that outstanding but that may be affected by the medical position.

27. We will rise for a couple of moments. If you simply let the Associate know when you are in a position to proceed, we will be within easy reach.
    (Short Adjournment)
28. LORD JUSTICE KEENE: Yes, Miss Purnell?

29. MISS PURNELL: I am most grateful for the time. I have had an opportunity to speak to those who instruct me. I have outlined the position with regard to Mr Murphy's medical situation. My instructions are to apply to the Court to invite the Court to order a retrial.

30. LORD JUSTICE KEENE: Yes. Right, thank you. Mr Saunders?

31. MR SAUNDERS: I resist the application in the particular circumstances of this case, particularly the defendant's medical situation but I invite the Court to bear in mind that these offences date back to 2004. My Lord, there has been quite some delay in bringing this case to trial because of his medical situation and, in my submission, it is going to be and extremely difficult period for Mr Murphy to have to go through, once again, the process of waiting for a trial, whether in custody or on bail, and at the end of the day, if there is conviction, then this will prolong the agony and indeed make the situation so far as the prospect of his dying in custody even more real. As I have said, the learned judge was quite clear having read the medical evidence that was a distinct possibility when he passed sentence.

32. Mr Murphy has, if I may read, complex physical health needs. This is May 05, but nothing has changed in effect. These include poorly controlled diabetes mellitus, for which he is requiring close observation and monitoring of blood sugar as well as specialist input. In relation to that it has been extremely difficult for Mr Murphy to cope whilst in prison. After 5 months of a precarious situation he has now his own medicine in his cell but his diet in prison is simply wrong and the prison service, unfortunately, are unable to provide him with any sort of diet that is appropriate to his diabetes.

33. LORD JUSTICE KEENE: That is a matter surely where representations can be made on his behalf to the prison authorities.

34. MR SAUNDERS: There is ongoing, one can imagine, there is an ongoing correspondence between Mr Murphy and the prison authorities. He had a heart attack in June; that in fact happened in hospital but the process of getting him to hospital from the prison took a very long time and he had had a heart attack at that stage, rather than suffering pain in his chest. He undoubtedly would have died then. But that, so there is the combination of diabetes and he has a stent in his left ventricle in his heart and terrible cerebral vascular stent. In February 05 he had a stroke which left him with residual weakness in the right side. Unwell on the ward, it is said he suffered falls and he required continuous observation. To summarise, he is an unwell man who is currently being medically investigated, and that, as I say, is at 05. In anticipation of the sentence, there was a report prepared for 31st March 06, in which he says: "Thank you for your letter..." Mr Murphy, as you are aware, has had numerous medical problems. His GP notes extend over five envelopes. He suffers from long-standing insulin dependent diabetes mellitus, severe coronary heart disease from which he has had at least three heart attacks in the past and coronary artery bypass surgery. In February 2005 he had a stroke, leaving his right side of weakness. He also has, of course, a long history of illicit drug abuse, problems with alcohol drinking, and an hepatitis C infection. He should be under the care of St Helier diabetic department but he has failed to keep his latest appointments with them. I am not going to elaborate why that was, that obviously is on record. He should be under the care of the cardiologist at St Helier hospital. He has failed to keep the last two appointments. I understand he has been in Springfield for detoxification and so on. I enclosed a list of medication he is on. He needs ongoing review by cardiologist and dermatologists, which because of the severity of his disease should mainly be hospital based. He is at risk of further heart attacks and stroke and therefore infection.

35. All this basically goes to the question of: (i) should he await a further trial, should he go through a further trial process and, perhaps more strongly, were he to be convicted, is it right in the circumstances that he should face the prospect of going back to prison in view of the learned judge's last observations? Of course, your Lordships have a discretion, but one of the considerations in the balancing act obviously is the defendant's situation and I am sure your Lordships are well familiar with how to carry out that exercise.
    (The Bench Conferred)
36. LORD JUSTICE KEENE: I am afraid, Mr Saunders, we are not persuaded by your advocacy on this issue. We take the view that this particular firearms offence was a serious offence and that it is in the public interest that your client should be retried. We will therefore specify that the appellant is to be retried on the same three counts which we have quashed his convictions on today. We direct a fresh indictment be preferred and that he be re-arraigned on that indictment within 2 months. He ought to have a representation order, of course, solicitor and counsel for the retrial.

37. We will not specify venue beyond saying that the venue is to be determined by the presiding judge for the southeastern circuit. What about between now and trial?

38. MR SAUNDERS: My Lord, he was on bail and attended during the trial.

39. LORD JUSTICE KEENE: Conditional bail, I imagine, of some sort.

40. MR SAUNDERS: It was conditional bail. He has an address to go to which is the address he was on bail at before, 184 Repton Road, in Orpington.

41. LORD JUSTICE KEENE: R-E-P-T-O-N.

42. MR SAUNDERS: My Lord, yes. He can live there. If your Lordship required some sort of control over his movements...

43. LORD JUSTICE KEENE: Was there a reporting condition? Miss Purnell, do you have details of this?

44. MISS PURNELL: I am afraid I cannot assist. May be if I look through enough of the transcript but I have not the original brief unfortunately.

45. MR SAUNDERS: I can assist.

46. LORD JUSTICE KEENE: Miss Purnell, is there any objection to bail of this man on the same central conditions as before?

47. MISS PURNELL: No.

48. MR SAUNDERS: He was not well for a while. He certainly had a residence condition but there were other conditions as well.

49. LORD JUSTICE KEENE: We may have them in his antecedents, let me see. At one stage he was remanded on bail to live and sleep at a particular address, to observe curfew hours between 19.00 and 6.00 hours and to present himself at the door, on request of a police officer during that time; not to contact any of the prosecution witnesses, some of whom were named; not to enter or come within one mile of Gloucester Road, South Norwood. At that time he had an address in Sutton, a guest house. No doubt that has changed subsequently.

50. MR SAUNDERS: My Lord, in principle if those are the conditions that the Court are thinking, of course, I will not disagree with them. The curfew, as I understand it, was from 7.00 pm.

51. LORD JUSTICE KEENE: 19.00 hours to 6.00 am.

52. MR SAUNDERS: May I suggest 9 o'clock.

53. LORD JUSTICE KEENE: Do you want to say anything about that, Miss Purnell?

54. MISS PURNELL: No, thank you.

55. MR SAUNDERS: I am sure Mr Murphy has heard what those proposed conditions are.

56. LORD JUSTICE KEENE: I will run through them again for the Associate. We will grant bail until the trial, on condition, first of all, that the appellant live and sleep at 184 Repton Road, Orpington. We will make an exception to that if he has to go into hospital at any stage. There will be a curfew condition to observe curfew hours between 21.00 hours and 06.00 hours and to present himself, on request, to a police officer during these hours. A condition not to contact directly or indirectly any prosecution witness, especially Mr O'Riordan or Mr McAuliffe or Mr Russell and the same conditions as before: not to enter or come within 1 mile of Gloucester Road, South Norwood. You are not asking, Miss Purnell, for reporting to a police station?

57. MISS PURNELL: Not in the circumstances, thank you.

58. LORD JUSTICE KEENE: You understand those conditions, do you, Mr Murphy? You know full well that if you break them that itself will be an offence. Do we need reporting restrictions pending retrial, Mr Saunders?

59. MR SAUNDERS: This case was widely reported in the local press at the time.

60. LORD JUSTICE KEENE: I cannot think that our judgment is going to get anything like the same coverage.

61. MR SAUNDERS: The Croydon Advertiser goes far and wide.

62. LORD JUSTICE KEENE: I meant in terms of column inches. The trial would have been much more interesting to readers of any local or national newspaper than the judgment of this Court on section 101(1)(d).

63. MR SAUNDERS: I do not think it is necessary.

64. LORD JUSTICE KEENE: I would have not thought so myself. Miss Purnell, are you content with that?

65. MISS PURNELL: I would not have thought so.

66. LORD JUSTICE KEENE: We do not seek to impose any reporting restrictions.