England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		31 July 2007

1. LORD JUSTICE HUGHES: This appeal is directed to the direction which was given to the jury in a case in which the defendant's bad character was admitted by the trial judge, pursuant to section 101(1)(g) of the Criminal Justice Act 2003, on the grounds that he had made an attack on another person's character.
2. The appellant was charged with robbery. There was a second charge of assault on the same victim about a month afterwards. The defendant and the victim lived in the same large block of flats. According to the victim the appellant, whom he did not know, had waylaid him in the lift, pressed a knife to his neck and, assisted by another youth who was neither identified nor caught, had taken his money and his phone from his pocket, together with a gold chain from round his neck. The victim could not tell the police who it was who had done it. However, according to him he subsequently saw the appellant in the area of the flats. Eventually, about a month later, there was the further incident in which, according to the victim's account, he was pushed at, threatened and spat upon. Immediately after that he was able to get the police to go to a flat which he believed he had seen his assailant enter and there on the stairwell outside it the police found and arrested the appellant.
3. When he was interviewed the following morning the appellant said that he did not know the complainant and he had never had anything to do with him. He suggested it was probably a case of mistaken identity. He said that he would have been either at his parents' home or at the bookmakers at the relevant time. There followed that afternoon a video identification procedure for the complainant. The complainant identified the appellant as the person responsible for both attacks upon him.
4. At the trial the appellant's case was different to the one that he had advanced in interview. He said now that he did know the complainant, at least to this extent. On the occasion of the alleged robbery he, the appellant, had been with some friends. They had been approached by the complainant and his girlfriend. The complainant had asked the appellant and his friends if they had any crack cocaine to sell. That having drawn a blank, the complaint had successfully gone off and found a supplier of such drugs nearby. Having done that, said the appellant, the complainant had invited the appellant back to his flat to "chill out". As a result he and his two friends had spent three or four hours that afternoon drinking and smoking in the complainant's flat. The complainant had been smoking the crack which he had bought. There had been no robbery. What had happened, according to the appellant, was that as they were leaving one of his friends had quite independently of him helped himself to the mobile phone and the chain which had been left lying about on an occasional table. The appellant contended that he had nothing whatever to do with that. The appellant accepted that he had lied in interview in saying that he did not know the complainant and he gave as a reason for that that he had been protecting the friend who had stolen the chain and, moreover, he had not wanted his girlfriend to know that he had spent the evening, among other things, smoking cannabis.
5. As to the second assault the appellant's case was that it was pure invention and he had not seen the complaint at all on that day.
6. That case was properly put to the complainant when the complainant gave evidence. The appellant was a man of bad character in that he had convictions for disorder, assaults on policemen, harassment, criminal damage and driving with excess alcohol. Those were offences committed over a period of about two-and-a-half years prior to the present allegations and within about three years or so of the trial.
7. The Crown applied to adduce this evidence of bad character under section 101(1)(g) on the ground that the appellant had made an attack on the character of the complainant. On the appellant's behalf it was conceded that such an attack had been made and that accordingly the gateway was passed. The Recorder was, however, asked to exercise his discretion under section 101(3) not to admit the evidence. He rejected that submission. He concluded that the evidence would not have such an adverse effect upon the fairness of the proceedings that it should be excluded. He rightly observed that the case depended very largely on which of the complainant on the one hand and the appellant on the other was telling the truth. He went on, in giving his decision, to say this:

"This is a case where the credibility of the prosecution's principal witness is plainly to the fore. It is going to come down to whether the jury are sure that he has told the truth when he says that the defendant robbed him ... and assaulted him. ... or whether they think it is or may be true, as the defendant now says, that the phone was simply taken by somebody else and all this has been made up to cover up what has occurred.

Plainly, the questions which were put to the victim about his interest in obtaining crack cocaine and having earlier that day crack cocaine were put to undermine the credibility of the victim, and to cast doubt in the minds of the jury as to whether they should believe him, if he was the kind of person, as they suggest, who was interested in obtaining Class A drugs and had earlier that day bought them. For what other reason can those questions have been put?

It seems to me that to admit these convictions, as the prosecution ask me to permit, would not have such an adverse effect on the fairness of the proceedings that I ought not to admit it, so that the jury may know the character of the person on whose behalf allegations -- which were stoutly denied -- but allegations which were made against the victim, plainly with the intention of damaging him in the eyes of the jury; and accordingly I admit his bad character."

8. Mr Marklew's principal argument in his original grounds on behalf of the appellant was to say that the discretion was wrongly exercised. Leave to argue that was refused by the single judge but in order to understand the submission in relation to the direction it is necessary to address the original submission, which was that the discretion was wrongly exercised for two reasons. First, it was said that it was wrongly exercised because the matters which were put in cross-examination were not gratuitous attacks on the complainant; rather, they were an integral part of the story which the defendant was advancing. Secondly, it was contended that the discretion was wrongly exercised because the convictions were not of a kind as to demonstrate either a propensity to offend as charged or a propensity to be untruthful. As we have said, the single judge refused leave on those points and Mr Marklew has not emphasised them in oral argument. We should, however, deal with them. As to the first of those arguments it may be relevant to the exercise of discretion if an attack on the complainant is an entirely gratuitous one. Gateway G is, however, not limited to such cases and the question is not relevant to whether the gateway is passed. The purpose of gateway G is to enable the jury to know from what sort of source allegations against a witness (especially a complainant but not only a complainant) have come. This court has said on more than one occasion that the new rules for the admission of bad character evidence do not mirror the former law and argument from the former law is usually unhelpful. We have, however, no doubt whatever that gateway G was formulated with the former law under the Criminal Evidence Act 1898 in mind. It was well established then that the fact that an attack on a witness was necessarily involved in the case which the accused chose to make was no reason not to enable the jury to assess the reliability and the truthfulness of that case by seeing the full nature of the source from which the allegation comes. We are sure that the same approach is implicit in gateway G. That Mr Marklew was duty-bound to put the questions that he did to the complainant and that he did his duty once his instructions from the defendant were as they were is nothing to the point.
9. As to the second argument, gateway G does not depend upon propensity to offend as charged or upon propensity to be untruthful in the sense of having a track record for untruthfulness. The purpose that it has is the one which we have identified. Of course it is well established that if a defendant's bad character admitted because gateway G has been passed does also go to show propensity to offend as charged or to be untruthful it is open to the jury to use it for the relevant purpose. For that see R v Highton and Others [2005] EWCA Crim 1985; [2006] 1 Crim App R 7. That, however, is not this case and such has not been suggested. It does not, however, follow, that it is admissible only if it also shows one or other of those propensities. To say that would be tantamount to saying that evidence which is admissible through gateway G ought to be excluded as a matter of discretion unless it also passes gateway D. There is clearly no warrant in the statute for construing it in that way - just the reverse. The Act plainly demonstrates that the gateways are independent, although of course in some cases more than one of them may be passed. The argument which we are addressing would, if accepted, deprive gateway G of much of its application.
10. The second argument was effectively encapsulated in the proposition that the appellant's convictions were irrelevant to his credibility. We do not think that they were. They may not have been such as to demonstrate a track record for untruthfulness. They would not have been independently admissible under gateway D if there had not been the attack on the credibility of the complainant that there was. But the attack on the complaint had been made. The relevance of the attack was that if it was true it provided a reason why the complainant should be disbelieved. When the jury was assessing the evidence of the two main parties to this trial it was judging the complainant's credibility against that of the accused. The attack having been made, it was entitled to have regard to the source from which came the accusations which might affect the jury's judgment of the complainant. It would be wholly artificial to say that this information about the appellant went to whether he was to be believed in what he said about the complainant being a user of crack cocaine and not to whether he was believed in what he said about how the complainant came to be parted from his chain and his mobile phone. We think that it is perfectly plain that, once admitted under gateway G, bad character evidence does go to the credibility of the witness in question. That accords with common experience. It is, among other things, the obverse of the reason why a defendant is entitled to plead his own good character in support of his claim that he should be believed. The reason why he is entitled to do that is because ordinary human experience is that people of proven respectability and good character are, other things being equal, more worthy of belief than those who are not. Conversely, persons of bad character may of course tell the truth and often do, but it is ordinary human experience that their word may be worth less than that of those who have led exemplary lives. Once gateway G is passed the consequence of the defendant's bad character falls to weighed with all the other evidence when the jury decides whether or not he has been proved to be guilty, and in doing so it may think him less worthy of belief because of his history. We ought to add that what is in issue here in relation to the exercise of discretion is of course whether this court should interfere with the judge's conclusion. This court will not interfere with the exercise of the judge's discretion under section 101(3) any more than it would under section 78 of the Police and Criminal Evidence Act or similar provisions unless the judge has either misdirected himself or had arrived at a conclusion which is outside the legitimate band of decisions available to him. There is not any question of either of those factors applying here. We ought to say that, like the single judge, we regard the Recorder's reasoning and decision as plainly right.
11. With that background, the ground upon which leave was given relates to the direction given by the Recorder to the jury. What he told them was this:

"You've heard in this case ... that the defendant has a bad character, in the sense that he has a number of prior criminal convictions. It's important that you understand why you've heard that evidence and how you may use it. You must not convict him only because he has a bad character. You have heard of his bad character because the defendant, through his counsel ... in cross-examination, made an attack on the character of [the complaint], by putting to him (although of course he strongly denied all of it) that he had asked the defendant whether he could buy a Class A drug, crack cocaine, from him, and, further, that he had actually brought crack cocaine earlier that day.

[The complaint] said that he'd never bought or taken any drugs on 10th June. [He] said that he had never bought or taken any drugs on 10th June or any other day in his whole life. You now know that the defendant, on whose behalf those allegations were put to [the complaint] has a number of criminal convictions. ... If you think it right, you may take his bad character into account in deciding whether or not the defendant's evidence to you from the witness box 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. You may weigh his convictions in the balance in deciding whether you believe his evidence to you yesterday and first thing today. But it is for you to decide to what extent, if at all, his character helps you when judging his evidence.

Bear in mind, as I have said, 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 he has a bad character. The defence point out that on all occasions in the past he has pleaded guilty, and incidentally, none of the offences of which he has previously been convicted are offences of dishonesty; but you may take them into account in the way that I've just described if you think it right; but it's a matter for you to judge."

12. The single judge in giving leave to argue the ground of appeal relating to that direction expressed the view that the judge's decision to admit the evidence was plainly right, though on the face of it his direction does not make sense. Addressing that observation, Mr Marklew's principal submission is that the direction does not make sense because it is impossible to reconcile the Recorder's reasoning in admitting the evidence with any argument about its relevance. That, however, is a complaint about the admission of the evidence rather than about the direction to the jury. That amounts to saying that because the evidence ought not to have been before the jury at all, on the grounds that it was irrelevant to any issue, no sensible direction about its use could have been given.
13. The single judge was, we think, concerned that this court should look at the fact that the jury was reminded that the appellant had always pleaded guilty and that his offences were not for dishonesty but were nevertheless told that his character could be taken into account when deciding whether his evidence was to be believed. For the reasons which we have already endeavoured to explain we do not think that it follows from the fact that the convictions were not for dishonesty and did not involve the giving of false evidence that they were therefore irrelevant to the credibility of the appellant. The Recorder, it seems to us, sufficiently and explicitly identified the purpose for which the evidence had been admitted. He told the jury precisely why they had heard about it, namely because of the attack upon the credibility of the complaint. We think that the Recorder was right to remind the jury that in mitigation of his bad character the defendant had shown that it had not included lying on his oath or the commission of offences involving the making of false statements. The defendant was, we think, entitled to have that made clear. However, for the reasons which we have endeavoured to explain, that did not mean that his credibility was not affected by his personal history which had been put in evidence.
14. Mr Marklew realistically substantially accepts that proposition in accepting, as he does, that the bad character evidence went to the reliability, as he puts it, of the complainant. That is another way of saying that it went, at least on the facts of this case, to whether he was telling the truth or not.
15. Today in oral argument, for the succinctness of which we are grateful, Mr Marklew has taken two additional points. He contends that whilst that is so, the Recorder in this instance did not sufficiently warn the jury against using the bad character evidence in a manner in which they ought not to use it. Says Mr Marklew, they should have been told in explicit terms that the evidence did not go to establish a propensity to untruthfulness and they should have been told in terms that the evidence did not go to establish a propensity to offend as charged. None of that had been raised either at the time of the summing-up or in the notice of appeal or until today, but if is right it is none the worse for that.
16. However, on inspection we are satisfied that those are criticisms without foundation. The learned Recorder was at pains to explain to the jury why they had heard this evidence and accordingly the use that could be made of it. He undoubtedly did tell them -- and explicitly -- that the history did not include a track record for false statement. As to propensity to offend as charged, that had never been raised; but the judge nevertheless carefully warned the jury that his bad character could not by itself prove the appellant was guilty. It seems to us that the Recorder in this instance sufficiently in common sense terms demonstrated to the jury the reason why the character of the defendant was in issue and the purpose for which it could be used. In those circumstances this appeal must be dismissed.