England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM The Crown Court at Wood Green
Mr Recorder P Herbert
T20060762

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/02/2008

MR JUSTICE UNDERHILL:

1. On 16 May 2007 in the Crown Court at Wood Green, before Mr Recorder Herbert, the Appellants Mervyn Lamaletie (aged 28) and Karen Royce (aged 48) were each convicted on a single count of inflicting grievous bodily harm contrary to sec. 20 of the Offences Against the Person Act 1861. In the case of Lamaletie the jury was unanimous; in the case of Ms. Royce the decision was by a majority of 10 to 2. On 8 June 2007 Lamaletie was sentenced to eighteen months imprisonment, and Royce to eleven months imprisonment suspended for two years with an unpaid work requirement of 200 hours. Ms. Royce was also ordered to pay £500 by way of costs and £500 by way of compensation. Both appeal against conviction with leave of the single judge.
2. The essential facts of the case can be summarised as follows. The complainant was a minicab driver, Mr Yadessa. At about 11 p.m. on 5 August 2006 he drove the Appellants, who had met for the first time earlier that evening, from a pub in Wood Green to Ms. Royce's flat in Islington. When they arrived at their destination a row broke out about the fare. Ms. Royce said that she had not got any money in her bag and would have to go into the flat to get some. Mr Yadessa was not happy about that. The altercation became violent and culminated in Mr Yadessa receiving blows to the face which broke both his right and his left jaw. It was the prosecution's case that it was Ms. Royce who struck the first blow, hitting Mr Yadessa with her handbag, and that Lamaletie then struck the heavy blows which caused the injuries in question and that both were throughout the incident acting together so as to be participating in a joint enterprise. The defendants' cases were not identical as to detail, but in substance both Lamaletie and Ms. Royce said that it was Mr Yadessa who was the aggressor throughout the incident and that any force that was used by them was in order to defend themselves or their property.
3. At trial the principal witness for the prosecution was Mr Yadessa, who gave evidence essentially in line with the case for the Crown as outlined above. The only other eye-witness was a neighbour who observed the incident from his flat and then came down into the street to see what was happening. There was evidence from the officers who attended the incident, but only after the fight was over. Evidence was given of the Appellants' answers in interview.

Lamaletie's Appeal

4. Lamaletie's appeal is based on the Recorder's decision to permit the Crown to adduce evidence of his bad character under sec. 101 of the Criminal Justice Act 2003. He had a fairly extensive criminal record, with some 13 convictions for 27 offences, including six convictions for offences of violence. The question had been raised more than once in the pre-trial period whether a bad character application was to be made, and the Crown had repeatedly disavowed any intention to do so. Part at least of the reason for this reluctance appears to have been that, for reasons which are unclear, the Crown was unable to obtain any details of the convictions beyond the bare descriptions of the offences appearing on the standard antecedents print-out: the absence of such details, it seems to have been thought, made it impossible to seek to introduce the evidence under gateway (d). But Mr Benson of counsel, who was newly instructed for the trial, applied on the second day of the trial (having intimated an intention to do so on the previous day) for the admission of evidence of Lamaletie's bad character under gateway (g), that is on the basis that he had "made an attack on another person's character": the attack in question consisted of his answers in interview, in which he had described Mr Yadessa as having initiated an unprovoked attack on himself and Ms. Royce. Because the detailed facts underlying the previous convictions remained unavailable, he disavowed any intention to rely on the offences of violence as demonstrating a propensity to commit such offences. The Recorder decided to allow the six convictions for violence to be put in evidence, but on the express basis that he would direct the jury that they should take them into account only for the purpose of assessing Lamaletie's credibility.
5. On the basis of that ruling, Lamaletie made formal admissions of convictions for the following offences:

•    an offence under sec. 41A of the Public Order Act 1986, for which he had been fined £150, together with orders for compensation and costs, in May 2000;

•    an offence of common assault (committed on bail), for which he was sent to prison for three months in September 2001;

•    an offence of assault occasioning actual bodily harm and one of common assault, for which he received a total sentence of six months imprisonment in November 2002;

•    an offence of assaulting a constable, for which he was imprisoned for four months in 2003;

•    another offence of assaulting a constable, for which he was again sent to prison for three months in January 2006;

•    an offence of affray, for which he was sent to prison for eight months in March 2006.

6. In his summing-up the Recorder dealt with the question of Lamaletie's previous convictions as follows:

If I can turn to Mr Lamaletie, you have heard that he is a person of bad character in the sense that he has the six criminal convictions for offences of violence that you had read out to you.

It is important that you should understand why you have heard that evidence and how you may use it. You heard that evidence because he made a fundamental attack on the character of Mr Yadessa and effectively said, "I wasn't the assailant at all, it was all Mr Yadessa's fault and he made, in effect, an unprovoked attack on both parties." And therefore, it was in that regard that I gave the prosecution the permission to refer to his previous convictions in the limited way that I did so.

You can therefore use the evidence of previous convictions that you had read out to you in one regard and one regard only. If you think it right you may take into account when deciding whether or not the defendant's evidence to you was truthful. A person with a bad character may be less likely to tell the truth, but it does not follow that they are incapable of doing so. You should not place undue reliance upon previous convictions in any event, and you certainly do not convict people because they have previous convictions. Equally, people of good character can commit criminal offences; people with criminal convictions can behave and be wholly innocent of any criminal charge.

One linking factor is, there is clearly a link that there has been a history of Mr Lamaletie being untruthful in relation to offences of violence. But you are not asked to regard it as to anything other than going to his credit, whether he has been truthful about what has happened or not.

7. Lamaletie appeals principally on the basis that the Recorder was wrong to admit the evidence of his previous convictions, though there is also a complaint about the terms of the summing-up as it relates to them. Ms. Jacobs' submissions on his behalf were under three heads.
8. First, she submitted that nothing that Lamaletie had said in interview amounted to an "attack on [the complainant's] character" within the meaning of sec. 101 (1) (g). The defence of self-defence necessarily involved an allegation that the complainant committed an assault, or at least had threatened to do so, and nothing that Lamaletie had said in interview went beyond that: it was no more than an "emphatic denial". She referred us to the decision of this Court in R v. Stone [2001] EWCA Crim 2379 ([2002] 1 Archbold News 1), which concerned the equivalent provisions of sec. 1 (f) (ii) of the Criminal Evidence Act 1898. We agree that, in the particular case of gateway (g), pre-2003 Act authorities may continue to be helpful. But, as is made clear in Stone, the position under the 1898 Act was not that the statute was not (to use the now modish term) "engaged" if the imputation on the character of a prosecution witness was a necessary part of the defendant's case: rather, that fact might be relevant to the exercise of the Court's discretion. As part of the exercise of that discretion it would be relevant to consider whether the imputation went beyond the minimum that was necessarily inherent in the defence raised - but there was no rule of law that that was the decisive criterion. In any event, whatever the position under the old law, it seems to us plain beyond argument that Lamaletie's answers in interview constituted an attack on Mr Yadessa's character within the meaning of sec. 101 (1) (g). Sec. 106 of the 2003 Act expressly provides that an allegation made in interview that another person has behaved "in a reprehensible way" is to be regarded as an attack on that person's character. Lamaletie had in interview alleged not simply that Mr Yadessa struck the first blow but that he "was attacking me everywhere": even the allegation that he had started the fight would probably be an allegation of reprehensible conduct, but Lamaletie in any event went further.
9. We do not therefore regard Ms. Jacobs' first ground as sustainable. It was of course open to the Recorder to take into account, as under the old law, the fact that the allegation was made in the context of raising a defence of self-defence as one of the considerations relevant to the exercise of his discretion under sec. 101 (3). Ms. Jacobs did not formulate this part of her argument as a challenge to the exercise of that discretion: her submission was, as we have said, that there was in truth no attack on Mr Yedassa's character. But even if she had put her case that way, we cannot say that the Recorder went outside the bounds of his discretion in this respect. He acknowledged the force of the point that Lamaletie ought not to be treated as having "put his character in" simply because he had alleged self-defence, but he considered that Lamaletie had gone further than that: in our view that conclusion was open to him.
10. We should add that Ms. Jacobs sought in her skeleton argument under this head to raise what seems to us to be on analysis a distinct point, namely that at the moment that the Judge made his ruling there was not yet any evidence of the "attack" relied on because the officer had not yet given evidence of Lamaletie's answers in interview: she referred to R v. Nelson [2006] EWCA Crim 3412. There is nothing in this point. As a matter of strict analysis, the Judge's ruling – which was no doubt made at the stage that it was simply so that everyone knew where they stood - was conditional on the evidence of the interview being given, as it was, before the jury was told of Lamaletie's convictions.
11. Ms. Jacobs' second ground was that the Crown's consistent position up to the start of the trial that it would be making no application under sec. 101 had given rise to a legitimate expectation on the part of Lamaletie that evidence of his bad character would not be adduced; and that in the light of that expectation the Recorder should not have acceded to the application. We do not agree. If the adducing of the evidence gave rise to no substantive unfairness, we can see no reason why the fact that the Crown had changed its position should by itself make any difference.
12. Ms. Jacobs' third ground was that, although in form the Recorder admitted the evidence of bad character only under gateway (g), i.e. as going to the relative credibility of Lamaletie and the complainant, the evidence was bound in practice to be regarded by the jury as evidence of a propensity on Lamaletie's part to commit offences of violence: thus the Crown was being permitted to adduce propensity evidence by the back door, in a case in which it had deliberately eschewed any application for such evidence to be admitted under gateway (d). The Recorder should therefore have refused to admit the evidence in the exercise of his discretion under sec. 101 (3). Ms. Jacobs reinforced that submission with two further points:

(1) She submitted that a mere list of convictions, which was all that the evidence in question consisted of, could not in truth be of any real assistance to the jury on the question of credibility.

(2) She drew attention to the final paragraph from the passage from the summing-up which we have set out at para 6 above. She pointed out that it was simply factually wrong to say that "there has been a history of Mr Lamaletie being untruthful in relation to offences of violence". That is somewhat oblique, but it could only mean that Lamaletie had pleaded not guilty to some or all of the offences; but (as Mr Benson accepted) that was something as to which the admissions were in fact silent – it was not known in any of the cases what his plea had been.

13. This ground of appeal needs rather more careful consideration. We agree that Lamaletie's antecedent history, as presented to the jury, was capable of being regarded as evidence of a propensity to commit offences of violence and therefore as making it more likely that he was the aggressor in the confrontation with Mr Yadessa. But for the peculiarities of the present case, summarised at para 4 above, it would have been wholly unobjectionable for the jury to use the evidence in that way. The Crown would almost certainly have applied for evidence of the convictions to be admitted under gateway (d) as well as (or perhaps instead of) gateway (g), and the application would almost certainly have been successful. Even if it had not done so, the evidence could still properly have been deployed to show propensity – a point explicitly made by Lord Woolf C.J. in R. v. Highton [2006] 1 Cr App R 7 ([2005] EWCA Crim 1985), at para. 10 (p. 132). Perhaps it would have been necessary for more details of the convictions to be obtained, as appears to have been believed in this case, though frankly we doubt it (see para. 14 below). The peculiarity of the present case, however, is that the Recorder stated that he would only admit the evidence on the basis that its relevance was limited to the issue of credibility and would direct the jury accordingly. That was a concession in Lamaletie's favour because the Crown lost the chance positively to invite the jury to rely on the convictions as evidence of a propensity to violence. But we do not believe that the fact that the direction to the jury might not be 100% effective gives him any cause for complaint. The Recorder's ruling in effect recreated the regime which applied under the old law. But even under the 1898 Act the fact that character evidence might incidentally demonstrate a propensity to commit the offences charged was not enough to preclude its admission under sec. 1 (f) (ii). In R v McLeod [1994] 1 WLR 1500, Gage J conducted a thorough review of the decided cases, concluding with an authoritative summary of what they established. His first point in that summary (at p. 1512 F-G) was as follows:

The primary purpose of the cross-examination as to previous convictions and bad character of the accused is to show that he is not worthy of belief. It is not, and should not be, to show that he has a disposition to commit the type of offence with which he is charged: see Reg. v. Vickers [1972] Crim. L.R. 101,  Reg. v. Khan and Reg. v. Barsoum.  But the mere fact that the offences are of a similar type to that charged or because of their number and type have the incidental effect of suggesting a tendency or disposition to commit the offence charged will not make them improper [our emphasis]: see  Reg. v. Powell  [1985] 1 W.L.R. 1364;  Reg. v. Owen,  83 Cr.App.R. 100 and Reg. v. Selvey  [1970] A.C. 304.

That in our view effectively disposes of Ms. Jacobs' primary point.

14. We wish to add that we are not convinced that gateway (d) was in truth unavailable in the present case. Contrary to what appears to have been thought, there is no rule that full details are necessary in every case where the Crown seeks to rely on previous convictions as demonstrating propensity: see R v Hanson [2005] 2 Cr App R 21, [2005] EWCA Crim 824, esp. at paras 12 and 17. We certainly accept that it is good practice for such details to be available in case they are required; but whether they are necessary in order for the jury fairly to assess their relevance to propensity will depend on the facts of the particular case. In the present case it is at least strongly arguable that the jury could draw a relevant conclusion from the simple fact, without more, that Lamaletie had no fewer than six convictions for offences of violence over a period of as many years.
15. Turning to Ms. Jacobs' second point, we do not accept that a "mere list of convictions" could not assist the jury on the issue of credibility. It is important to bear in mind that this is a case where the gateway relied on is (g). The conception underlying that gateway, as previously with sec. 1 (f) (ii), is that where a defendant has impugned the character of a prosecution witness the jury will be assisted in deciding who to believe by knowing of the defendant's character. As it was put by Devlin J. in the leading case of R. v. Cook [1959] 2 QB 340, at p. 347:

"… In the ordinary and normal case [the judge] may feel that if the credit of the prosecutor or his witnesses has been attacked, it is only fair that the jury should have before them material on which they can form their judgment whether the accused person is any more worthy to be believed than those he has attacked. It is obviously unfair that the jury should be left in the dark about an accused person's character if the conduct of his defence has attacked the character of the prosecutor or the witnesses for the prosecution within the meaning of the section."

For the purpose of that kind of exercise, what is relevant is "character" in a broad general sense; and we do not believe that it was ever the practice under the 1898 Act to consider the details of the evidence of bad character sought to be adduced. Such detail was unnecessary and potentially distracting. We do not believe that the position is different in a gateway (g) case under the 2003 Act: what, in essence, the jury here was being invited to put into the balance, when considering whether to believe the defendant's or the complainant's account of how the fight started was simply the fact that the defendant was a man with a significant record of offences of violence. In deciding whether to accept Lamaletie's account that Mr Yadessa was the initial aggressor and had "attacked him everywhere", the jury were entitled to take into account that significant record.

16. Ms. Jacobs sought to support this aspect of her submissions by reference to R. v. Meyer [2006] EWCA Crim 1126. That was a case of wounding with intent, where the defence was self-defence. This Court held that the Judge was wrong to direct the jury that two previous convictions for offences of violence (in relation to which the defendant had pleaded guilty) were relevant to credibility: see per Fulford J. at para 22. But we cannot find in Meyer any statement of general principle that a history of offences of violence was incapable of being treated as relevant to credibility. We read it – as it appears also to have been read in R v Campbell [2007] 2 Cr App R 28 ([2007] EWCA Crim 1472): see para. 46 of the judgment of the Lord Chief Justice (at p. 378) – as simply a decision on the facts of the particular case. Indeed we note that it appears to have accepted by the Crown in Meyer that the convictions in question were irrelevant to the issue of credibility (see para. 1). It should also be noted that Meyer was not a case in which any reliance had been placed on gateway (g). We think it highly unlikely that the Court was intending to lay down any rule inconsistent with the general practice as we have referred to it in para. 15 above.
17. As for Ms. Jacobs' final point, we agree that to a criminal lawyer the Recorder's use of the phrase "a history of Mr Lamaletie being untruthful" would most naturally be understood as meaning that he had pleaded not guilty to some or all of the offences about which the jury had been told; and we must for the purpose of this appeal assume that that was factually incorrect. That was an unfortunate slip. However, it seems to us extremely unlikely that that is how the jury will have understood his words, both because of their opacity and because of the context in which they occurred. It is not in fact at all clear precisely what the Recorder was trying to say in the short passage in which the phrase occurs; but it was certainly not directed to inviting the jury to consider whether any previous not guilty pleas made Lamaletie less credible as a witness. Indeed the overall message being conveyed was plainly that the jury should ignore the point to which he was alluding, whatever it was, and should stick to the general direction which he had just given.
18. We see no real possibility that the jury were misled. We therefore dismiss Lamaletie's appeal.We conclude this part of our judgment by observing that the unusual procedural history of this case has required us to become engaged in the somewhat artificial and unsatisfactory analysis required by the old law in this area. In most cases, however, this kind of exercise should be redundant, for the reasons powerfully explained in Campbell.

Royce's Appeal

19. At the conclusion of the hearing we announced that if Lamaletie's appeal succeeded so would Royce's appeal. We also said that if his appeal failed then her conviction under sec. 20 would, in any event, be quashed and a conviction for common assault substituted, with a consequential reduction in her sentence to 102 hours unpaid work as part of a community order (being hours which she had already completed). However, we reserved our reasons. They can be briefly stated as follows.
20. A number of points were made in Ms. Royce's original grounds of appeal. In the end, however, the argument before us focused on a point which was not clearly pleaded but which we encouraged Ms. Rawat to develop. It was never the Crown's case that Ms. Royce herself had struck the blows that caused Mr. Yadessa the serious injury which he suffered: its case against her was put on joint enterprise. The Recorder gave a direction in that regard which we need not set out here, but the question plainly caused the jury some difficulty because after they had been retired for some time they sent a note to the Recorder which asked, so far as relevant, "what degree of involvement is necessary for us to jointly convict on GBH ?". The Recorder, after discussing matters with counsel, dealt with the note by a further direction in the following terms:

I will repeat a direction in relation to joint responsibility firstly. The prosecution's case is that both defendants committed this offence of grievous bodily harm. Where a criminal offence is committed by two or more persons, each of them play a different part. But if they are in it together as part of a joint formal agreement to commit if they are each guilty. With [inaudible] agreement do not mean that there will not need be any formality about it. Any agreement to commit an offence may arise on the spur of the moment, and that is essentially how the Crown's case is put. Nothing need be said at all, it can be made with a nod and a wink or a knowing look. An agreement can be inferred from the behaviour of the parties, such as language and what they actually did.

The essence of joint responsibility for a criminal offence is that each defendant shared the intention to commit the offence and played some part in it, however great or small so as to achieve that particular end.

Your approach therefore, should be as follows. Looking at the case of either defendant you are sure that with the intention that I have mentioned each party committed the offence and took some part in committing it. Mere presence at the scene is not enough to prove guilt. But if you find a particular defendant was on the scene and intended and did, by his or her presence alone encourage the others, of that offence they would be guilty.

The Crown's case in relation to Miss Royce is that she swung her and shouting and swearing etc, racially abusive, but directly swung her handbag in the terms is seen to hit Mr Yadessa. He blocked that with his arm. If you believe that is part of a joint enterprise to commit harm, it does not necessarily have to be an intention to commit the extensive injuries that actually took place, but should be guilty of joint enterprise together with Mr Lamaletie. However, if that blow and her actions that apparently all her actions were not part of that joint agreement to commit harm to Mr Yadessa, then she would be entitled to be found not guilty of that. The essential question is, was she part of a joint agreement at that particular time.

(There are some apparent errors in the transcription, but they are not such as to affect the overall sense, and we have not sought to correct them.)

21. It is the concluding paragraph of that passage which gives rise to difficulty. We understand from Mr. Benson that the Crown's case on joint enterprise was based not primarily on Ms. Royce having struck the first blow but on evidence that throughout the incident, and specifically during the much heavier assault perpetrated by Lamaletie, she continued to encourage and assist him. That makes sense. But that is not what the Recorder directed the jury to consider. The focus of the paragraph in question – and particularly the opening sentences - is squarely on whether at the moment that she struck the first blow with her handbag she was acting as part of a course of action which had been (however informally) pre-agreed. But there was no evidence that could have supported a case to that effect. We need not review the evidence because, as we have said, that is not the way in which the Crown put its case. It is sufficient to say that this was, on the evidence, plainly an incident which developed spontaneously when Mr Yadessa tried to stop her leaving the scene without paying and she struck him: there is no room for any common intention to be formed prior to that point. The jury's verdict cannot therefore be supported on the basis which the Recorder directed it to consider. Mr. Benson submitted to us that the verdict could be supported on the basis that the Crown had sought to advance – that is, on the basis of Ms. Royce's participation thereafter. But that is not how the jury was directed to approach it, and we cannot uphold the conviction on that basis.