England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		20th November 2009

1. LORD JUSTICE SCOTT BAKER: This appellant, aged 28, appeals with the leave of the Single Judge against his conviction by a majority of 10:2, in the Crown Court at Southwark before HHJ Gledhill and a jury, of possessing an imitation firearm with intent to cause fear of violence. His conviction was on 24th November 2008 and on 22nd December 2008 he was sentenced to nine months' imprisonment less 187 days that he had spent on remand.
2. There are two grounds of appeal. The first relates to a good character direction, or rather the absence of one, and the second relates to a Lucas direction on lies.
3. The facts of the case were as follows. The offence arose out of an incident in which the appellant was seen by an off-duty police officer to be displaying inappropriate behaviour to a female police community support officer. It transpired that he was in possession of a belt buckle shaped like half a silver pistol, which he exposed to the officer, who mistook it for a real firearm. It was the Crown's case that the appellant was in possession of the belt buckle and had displayed it with the intention that it would cause fear of violence. The defence case was lack of intent. The item was a fashion accessory which he clipped to his belt. At the relevant time he was rearranging his clothing and he had displayed it by accident with no intention to cause fear of violence. The issue for the jury was whether he deliberately exposed the belt buckle with the intention that it caused fear of violence.
4. Lydia Otoo's evidence was that, on 18th June, at about quarter past nine in the morning, she was returning to Marylebone police station having completed a patrol. She was in full uniform and alone. As she made her way along Bryanston Street, she was approached by the appellant, with a Spanish accent, who said "hello miss". He grabbed her right hand and tried to kiss it. She told him to stop and tried to walk away but he ignored her and continued to talk to her. She could smell alcohol on his breath and found his behaviour oppressive. She tried to put him off and he eventually walked away.
5. She then noticed someone watching them and realised it was an officer from the same police station. He approached her and asked for her radio, which she handed over. She saw him stop the same man and position him against the wall. She walked over and saw a white-coloured hand gun, or what she believed to be a handgun, on the ground. She asked the man if it belonged to him and he told her that he had brought it as a present for his cousin in Cuba. She waited with the officer until transport arrived to take them to the police station.
6. The off-duty officer was Alex Flanagan and he was on Old Quebec Street at 9.15 in the morning on his way back to Marylebone police station and dressed in plain clothes. He saw the appellant talking to a female community support officer and overheard him making flirtatious remarks. He also tried to kiss her and was making outlines of her body with his hands. Mr Flanagan became concerned about the man's behaviour as he seemed to be under the influence of drink or drugs. It became obvious that the support officer was uncomfortable with the situation and Mr Flanagan, fearing that events might take a turn for the worse, decided to keep them under observation. The appellant then turned round and walked away from the support officer. However, when he saw Mr Flanagan was watching him, he clenched his fists, stared at him and shouted "what the fuck do you want?" He repeated this comment and, as he did so, he lifted up his jumper and T-shirt and revealed what appeared to Flanagan to be a white metal gun tucked into his waistband. Mr Flanagan believed it to be a real gun. He decided to call for assistance from a tactical firearms unit. He informed the appellant that he was a police officer and arrested him. When he realised it was not a real gun he cancelled the request for the armed response unit. While waiting for the van, the appellant was continually abusive.
7. In interview, the appellant told the officers that he lived in the area and had purchased the belt buckle from a clothes shop in Oxford Circus. It was a present for his brother in Cuba and he decided to clip it onto his belt. He had a friend with him at the time called Martel who told him not to wear it since people would be concerned if they saw it. He was rearranging his clothing at the time the officer was watching him and did not intend to expose the buckle. He had drunk two glasses of wine and a glass of vodka that morning and accepted that he was slightly drunk but said that he knew what he was doing.
8. At his trial, he gave evidence. He produced the belt buckle. He had purchased the belt buckle that day for his cousin in Cuba. The female officer was dressed prettily and he struck up a conversation with her in just a few minutes. He was not aggressive towards Flanagan and merely wanted to know why he was staring at him and following him. He was not drunk and had only had a little glass of orange juice with rum. He was fiddling with his trousers at the time but had not exposed the buckle deliberately.
9. The appellant has no previous convictions but one caution on 15th February 2008 for common assault on his wife. There was another disputed caution for robbery, later reduced from robbery to common assault on the police national computer, but this was not pursued by the prosecution because it was denied by the appellant and is therefore irrelevant for the purposes of this appeal.
10. At the conclusion of the evidence, there was no evidence as to character at all. Defence counsel had apparently raised the matter previously to the extent that she told the judge she intended to seek a good character direction, but she at no point had asked for the jury to retire so that a formal submission could be made to the judge on that matter. There was discussion after the conclusion of the evidence on the 20th November and it concluded with the judge saying as follows:

"Right, what I am prepared to do is if you apply to reopen your case and call your client in order to say that he has one caution for common assault I am quite prepared to tell the jury that that does not help them at all, in their deliberations in this case and they must disregard and they have been told it so they have a complete picture. I am not prepared to give a good character direction."

And then the judge was asked if the fact could be adduced that Mr Pellon, the defendant, had no convictions and the judge said:

"Yes, certainly. It must be explained to the jury that a caution means an admission of guilt of the offence for which he was cautioned."

And then the judge concluded by saying:

"I have decided I am not going to give good character direction, or a bad character direction."

And the jury came back.

11. The judge did not hear argument on the issue, nor did he consider the authorities. In our judgment, the judge should have heard argument on the question of whether or not the jury should be given a full or partial good character direction and in our judgment the learned judge was in error in not having entertained argument and, if necessary, considered the authorities on this point.
12. Now, the law is summarised in the case of R v Gray [2004] 2 CrAppR 30 at 498. There is a summary of the present state of the law by Rix LJ at page 515 at paragraph 57. It is unnecessary for us for present purposes to recite the whole of the summary. Suffice it to say that Rix LJ's first heading is that:

"The primary rule is that a person of previous good character must be given a full direction covering both credibility and propensity. Where there are no further facts to complicate the position, such a direction is mandatory and should be unqualified."

13. Now, this is not a case that fell into that situation because of the caution that the appellant had to which we have referred. That caution meant that the case came into the category where the judge had a discretion whether to give a good character direction and whether, if he did so, it should be a full direction or, in this case, a partial one only in relation only to the credibility limb rather than to the propensity limb.
14. We were referred also to the case of R v Martin [2002] Cr.App.R 42, where Mantell LJ, giving the judgment of the court, was dealing with a situation where there is a previous caution or cautions. It seems to us, summarising the matter, that this is a case where, if the judge had heard full argument and considered the authorities, he would have appreciated that the discretion that he had should have been exercised in such a way that the appellant should have been given a good character direction as far as the credibility limb was concerned, because the previous caution could not have impinged on his credibility in any way.
15. What the judge said in summing up was this. He said:

"You have heard that the defendant has a caution for common assault, and he has not criminal convictions, but he did admit he was guilty of common assault, and was given a formal caution. You have not heard the facts of that caution, but it does not matter because I direct you it is totally irrelevant to your considerations that he admitted that common assault. It does not help you in one way or another, you have simply have been told so that you know the full background of this defendant."

16. So the jury was directed (1) that the defendant had no previous convictions and (2) that his caution was irrelevant to the issues in this case. What the jury should have been told related to his previous good character in relation to the question of credibility. The jury knew that he had no previous convictions and it seems to us that in the particular circumstances of this case a direction on the credibility limb would have been likely to take the case very little further, but we appreciate the point made by Ms Bailey for the defendant that the credibility of the defendant was very much in issue.
17. Now, the second ground of appeal relates to lies and what the judge said in summing-up was this:

"You are entitled to look at whether or not the defendant has lied to the police when considering the evidence in the case, and if you come to the conclusion that he has lied, that may be evidence to support the case against him.

You should have two questions in mind when looking at that, and there are other areas to which I have already referred you where the prosecution say there are inconsistencies which are or may be lies. When looking at alleged or potential lies, you should consider two questions: firstly you must consider whether the defendant did in fact deliberately tell lies [and] if you are not sure he [did], then ignore the matter. If you are sure he lied, then secondly ask why the defendant lied. The mere fact that a defendant tells a lie is not in itself evidence of guilt. A person may lie for many reasons, and they may be innocent ones in the sense they do not denote guilt, for example to bolster a true defence; to protect somebody; to conceal some disgraceful conduct; out of panic, distress or confusion. So, those are the sorts of reasons that somebody might lie, which you must consider when you ask yourself why the defendant lied. If you think that there is or may be an innocent explanation for a lie or lies, then you should take no notice of them. It is only if you are sure he did not lie for an innocent reason that those lies can be regarded by you as evidence to support the prosecution case."

That was the full classic and well-known Lucas direction. Again, unfortunately, the judge give no warning to counsel that he intended to give such a direction nor did he discuss with counsel whether one was indeed necessary.

18. Ms Bailey submits that such a direction was not necessary and she submits that what was being looked at in this case was not lies but inconsistencies in the appellant's evidence. She draws attention to the following. (1) In interview, the appellant said he bought the belt buckle imitation firearm from his brother in Cuba whereas in evidence he said it was for his cousin in Cuba. (2) The appellant's evidence is that he was a friend called Martel at the time of the incident but CCTV of the aftermath of the incident does not show another person present. (3) In interview, and to explain how the plain clothes officer may have seen the imitation firearm, the appellant said he had pulled his pullover up for taking his belt off because he was uncomfortable and put the imitation firearm in his pocket, whereas in evidence he says he was re-arranging his clothes because he was comfortable fiddling with his trousers, which he had to pull up. Mr Rustom for the Crown says that that matter really lies at the heart of this aspect of the case because there is a very clear difference between what the appellant was saying at the time and what he said in his evidence. (4) In interview, the appellant said he had consumed two glasses of wine and one glass of vodka with orange prior to being stopped, whereas in evidence in response to questions asked by the judge he said he had a little glass of rum. (5) In interview, the appellant accepted that he was a bit drunk, whereas, when he was asked by the judge, he denied being drunk.
19. Now, it seems to us that this Lucas direction was given in the context that the Crown had been submitting to the jury in their final speech that the appellant had indeed lied in a number of respects and in particular with regard to the important respect in the third of the matters to which we have referred, namely the rearrangement of his clothing. In those circumstances, the judge no doubt took the view that it was of importance, not least for the benefit of the appellant, to give the standard Lucas direction. The Lucas direction, we were reminded, includes as the starting point that the jury having to be satisfied that what was said can be classified not just as an inconsistency but actually as a lie before it bites in such a way as to be able to assist and support the Crown's case.
20. We are unpersuaded that there is anything in the second ground of appeal. As to the first ground of appeal, and the failure to give the credibility aspect of the good character directions, we think, as we have indicated, that the judge was in error, first in not discussing the matter with counsel and secondly that he would in all probability have been persuaded that that should have been given in this case, but, in the context of the case as a whole, we are quite satisfied that the conviction is safe and the judge's failure in no way impinges on the safety of the conviction. For these reasons, therefore, the appeal will be dismissed.