England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		16th January 2009

1. LORD JUSTICE MOSES: This is an appeal against conviction in a somewhat unusual case, unusual not only because of the facts but because this appellant is now aged 61 and of an age when one might have expected that he would not still be accused of committing burglaries.
2. The conviction was on 8th September 2008 at Guildford Crown Court for one count of burglary. It was alleged against this appellant that he had gone in the middle of the night, with another man, on 21st March 2008, to an aviary owned by Mrs Geal and her husband. In that aviary she contained a number of valuable domestic birds. The allegation against this appellant was that he had gone there in order to steal those birds.
3. His defence was that he had indeed gone there without permission but it was in order to release wild birds that she was unlawfully keeping in the aviary and that by the time he was caught, for he was caught with another man as the prosecution put it, red-handed, he had already managed to release wild birds. He was caught by the police still within the aviary and trying to get out by kicking or breaking a wall panel as the police arrived. There was another young man with him who was, for reasons we do wholly understand, tried separately and acquitted.
4. As we have indicated, part of his defence was that he had gone there for an innocent purpose, to release the wild birds and had at least partly achieved that purpose by the time the police arrived. There were certain difficulties in that defence, in that the police and the victim of this burglary found that at least one nesting box had been moved and there was a screwdriver that did not, she said, come from her, in the nesting box. If that were true the removal of the nesting box would have been wholly inconsistent with his assertion that he was trying to free and had already freed some wild birds.
5. The assertion that he was trying to free wild birds plainly amounted to an attack upon the character of one who, as part of a business, housed valuable birds for sale within the aviary. Accordingly the prosecution sought permission to admit two previous convictions of this appellant pursuant to section 101(1)(g) of the Criminal Justice Act 2003. We note in passing that the prosecution had also attempted to admit those convictions pursuant to section 101(1)(f). The judge had rightly denied admission of those previous convictions on that basis. Neither at the time nor now does Miss Wellfare, in her cogent and forthright submissions, suggest that the gateway identified was inapposite. However, she submits that the offences were so old and stale that they ought not to have been admitted as casting any light upon this man's character and in any event the court was required to refuse their admission because their admission would have an adverse affect on the fairness of the proceedings (see section 101(3) and (4))
6. The offences were, it is true, old. The first was an offence of burglary, to which the appellant had pleaded guilty on 6th June 1987, some 20 years ago, when he was only 40. The other was 10 years later, on 8th December 1997, when he was 50, again an offence of burglary, to which he had pleaded guilty. It was submitted before the judge and persisted in by way of submission before us that these offences were too stale. The judge disagreed. It is trite that this court cannot interfere unless the response to the question of whether they should be admitted, or it was unfair to do so was outwith the range of reasonable responses. In our judgment, it was not. Plainly, as Miss Wellfare, fairly accepts, there had been an attack upon the character of Mrs Geal and it would have skewed the fairness of the trial had the jury been deprived of the knowledge that the source of those allegations was someone who, at a mature age, had committed burglary.
7. The next question that arises on the appeal is how the judge directed the jury as to those two previous convictions. The judge said:

"The defence case is that Mrs Geal was illegally wild, native bird in captivity in that aviary and also, in effect, you may think, that she has fabricated evidence, such as the two birds in the nesting box. The law permits a jury to hear about the character of the person who is making an attack of that kind against a prosecution witness. This is a trial in which the truthfulness or otherwise of the evidence of Mrs Geal on the one hand and Mr Hearne on the other, is crucial and what really matters in this trial is the evidence that each of those witnesses gave as to the facts of this incident. So the evidence about Mr Hearne's previous convictions is no more than background. It is something that may assist you when you are assessing whether his evidence before you in this trial was truthful."

8. Down to the anti penultimate sentence there is little criticism of that direction. One of the essential issues, although we query whether it was the only essential issue, was the truthfulness of Mrs Geal's denial that there were any wild birds unlawfully kept within her aviary, on the one hand, and the assertion of the appellant, unsupported by any evidence, either from the man he was with or from any other source, that it had come to his knowledge that there were wild birds within the aviary.
9. But the submission by Miss Wellfare, on behalf of the appellant, is founded on the proposition that the words of those directions suggested to the jury that the previous convictions had been admitted, so as to demonstrate their propensity for untruthfulness. We do not agree. We do not think that there was anything in the wording of that direction which suggested anything other than the jury were hearing about those previous convictions as background because the appellant had chosen to make an attack upon the character of the prosecution witness. In those circumstances it was only fair that they should hear of the source of that allegation.
10. These directions were no more than a reflection of the traditional and correct directions which used to be given to a jury and when convictions were admitted pursuant to the 1898 Act, when there had been an attack upon the character of a prosecution witness. We refer in particular to the basis for such admission, as explained by Lord Lane CJ in R v Powell [1985] 1 WLR 1364 at 1369, namely that where there has been an attack upon the character of a prosecution witness:

"... 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..."

Such an approach was followed by this court in R v McLeod [1994] 1 WLR 1500, where it was pointed out that the primary purpose of the cross-examination is to show that he is not worthy of belief:

"It should not be to show that he has a disposition to commit the type of offence with which he is charged."

It is that final thought, reinforced by subsequent passages in McLeod, that leads us to make one further comment. It is possible that the judge might have been wise to warn the jury that they should not deploy the previous convictions for burglary as any evidence of the propensity to commit burglary let alone a propensity for untruthfulness. Indeed the appellant was at pains to point out that he had pleaded guilty to those previous offences, lending force to the truth of his plea of not guilty in the instant case. But we do not think any harm was done by that failure, a failure which will no longer in future occur in the Crown Court in the light of the Judicial Studies Board guidance that either has been or is about to be promulgated on that issue. No harm was done because the judge made it clear that the only reason they were hearing of those previous convictions was as background. In those circumstances we disagree with the propositions advanced by Miss Wellfare. Since they were the only grounds on which the appeal against conviction was advanced, the appeal will be dismissed.

11. We only say that we have not detailed with any particularity the facts of this offence. That is only merciful to this appellant, since they showed that he had no defence worthy of belief in any event.
(Submissions re: sentence)
12. LORD JUSTICE MOSES: This is an appeal with leave of the single judge against a sentence of 18 months' imprisonment passed for the burglary, the details of which we have already outlined. As we have said, this appellant is 61 and has previous convictions for burglary. However, the impact of any custodial sentence will hit him and has hit him particularly hard because of his medical condition. We have no up-to-date medical report, not surprisingly, but there was before the court evidence from his general practitioner, in a report dated 23rd September 2008, that he suffers from diabetes, which causes him pain, cervical spondylosis, a duodenal ulcer and was undergoing investigation for problems of weakness, pain and paraesthesia in both his legs. The judge took those conditions into account but took the view that the offence was planned and akin to a domestic burglary.
13. We agree with that view of this offence. The burden of the forceful submissions advanced by Miss Wellfare is that this was not a domestic burglary and it did not cross the custody threshold. There was no evidence of particularly high value of the birds within the aviary at the time and at least had the judge, as he ought to have done, taken into account the consultation guidelines for non-domestic burglary, a non-custodial sentence should have been passed. Moreover, even if this were to be regarded as a domestic burglary, the judge failed to take into account the thrust of McInerney, namely that custody should be avoided if possible and that it clearly was possible because it was recommended by the probation officer in the pre-sentence report in this case. As the facts indicate, this appellant is an alcoholic and he was drunk at the time that he committed these offences.
14. But, in our judgment, the judge was perfectly correct to regard this offence as a domestic burglary. The aviaries were part of the victim's home. The aviaries were targeted by this appellant in a particularly mean offence. It was indeed, it appears, an offence committed for commercial reasons, namely to capture birds of sufficient value, to sell on the particular market.
15. In those circumstances, we take the view that the custody threshold was crossed and the judge was entitled to pass a sentence of imprisonment, notwithstanding the particular impact upon this appellant. But we bear in mind that impact and we bear in mind the nature of this offence, and we do take the view that a sentence of 18 months' imprisonment was manifestly excessive.
16. Having regard to the impact upon this appellant, although we reject any suggestion that he has exhibited signs of true remorse, we think that the appropriate sentence of imprisonment would be one of 8 months' imprisonment, which would ensure that he will be released in the comparatively near future. In those circumstances, we shall allow his appeal against sentence and reduce the sentence of 18 months' imprisonment to one of 8 months.