England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		13th February 2009

1. LORD JUSTICE RIX: This appeal raises an issue under gateways (d) and (f) of section 101(1) of the Criminal Justice Act 2003 concerning the admission of bad character evidence.
2. The practical question for the judge was whether to admit evidence of a kitchen knife found under the pillow of the defendant's bed at the time when he was arrested there in bed in circumstances where the gravamen of the charge of blackmail, on which he ultimately stood trial, was that he used a similar but not identical kitchen knife to threaten the victim of his blackmail, some two days before his arrest.
3. The judge admitted this evidence under gateways (d) and (f), principally as she said under gateway (f), and rejected the submission that she should exclude that evidence under section 101(3) of the 2003 Act or section 78 of the Police and Criminal Evidence Act 1984.
4. The defendant at trial (here the appellant) was Paul Chable, who on 15th July 2008 in the Crown Court at Reading before Her Honour Judge Mowat was convicted by a majority of 11 to 1 of blackmail. That was count 1. He had previously, on 1st May 2008, before His Honour Judge Fingret, pleaded guilty to common assault, which was count 2 on the indictment. On 19th September 2008 he was sentenced to 15 months' imprisonment on count 1, less 83 days spent on remand and 3 months' imprisonment concurrent on count 2. He now appeals against conviction by leave of the single judge.
5. The essential evidence given at the trial was as follows. On 22nd January 2008 the appellant drove in his van to the home address of Emma Leschenko, the complainant, and spoke to her about a tree surgeon's job that his close friend, a man called Martin Sewell, had carried out for Miss Leschenko's partner's business associate, a Mr Ian Parkinson. The appellant demanded £2,500 from Miss Leschenko and she said that he would have to speak to Mr Parkinson himself. The appellant said: "I will get Ian too" and then pulled out a black handled kitchen knife. He said: "This knife will be slashed across your husband's face if you do not give us a cheque for £2,500 within two days." He made a gesture in the air with the knife in the shape of a cross and walked away. That conduct about which Miss Leschenko gave evidence was the subject matter of count 1, the blackmail. Miss Leschenko, she told the court, followed him to his car to take its registration number. To stop her he lunged at her, spat in her face and pushed her over. That was the subject matter of count 2, the count of common assault, on which the appellant had pleaded guilty before trial. That part of the events, the common assault, was caught on CCTV, which is perhaps why the appellant subsequently pleaded guilty to the count of common assault. Miss Leschenko picked herself up, however, and did manage to obtain the registration number of the appellant's van. Miss Leschenko's daughter, who also gave evidence, witnessed the assault and told her father, who called the police.
6. An explanation of the background to this incident is this. Miss Leschenko and her partner, Mr Halse, both explained that Mr Halse's ex business partner, Mr Parkinson, whom we have already mentioned, had engaged Martin Sewell to do a tree surgeon's job but a few days later had sacked him, following which Mr Sewell had been aggrieved and threatened him aggressively and had told him: "You'll have to deal with my associates."
7. In interview following his arrest the appellant made very vehement denials of having produced a knife in his encounter with Miss Leschenko. He completely distanced himself from any suggestion that he had anything to do with knives, so much so that he had to collect himself and make an exception when he accepted that there was a Stanley knife in his plumber's toolbox. He called himself an honest plumber. The judge summed up that material in these words in her ruling on the admissibility of the knife under the pillow when she said:

"Now the impression given by that, I think the jury will be entitled to conclude, was he was an honest plumber, which is what I think he was saying he was, who would never dream of doing anything untoward with a knife, or even having a knife to do anything untoward with, and the point was forcibly made by him in interview."

There is no challenge to that summation. In this court Miss Huntley, who appears here on behalf of the appellant as she did at trial, accepts that, to use the colloquialism, the effect of the appellant's case at interview was: "I don't do knives."

8. The knife under the pillow had been shown to Miss Leschenko by the police and, although like the knife which she said she was shown during the blackmail incident, by it too was a black-handled silver-bladed kitchen knife, she said it was not the knife with which she had been threatened, the latter having, we think she said, a longer blade and a serrated edge.
9. In interview the appellant gave an explanation of the knife under the pillow, saying he was hiding it from a nephew who had an unhealthy interest in knives. Subsequently, in his evidence at trial, the appellant said that he knew Martin Sewell very well, indeed for as long as he remembered. He gave slightly confused evidence about whether Mr Sewell had asked him to collect £2,500, as due or, rather, to send a cheque for £2,500 to Mr Parkinson. Thus he described his conversation with Miss Leschenko in his evidence as follows: He said to her: "I'm Paul, Martin's friend. I've been asked to see if I can get a cheque for £2,500 to Ian." In other words there was, on his evidence, not even a request for money, let alone a demand with menaces, but a polite enquiry to use Miss Leschenko as a sort of post box. He said that Miss Leschenko's response to this polite request was foul mouthed abuse. He responded in kind and walked off. He said he pushed her over because she was "fucking annoying him and he spat at her quite deliberately". As to the knife, "that was fucking absolute crap". He said: "I don't carry knives. The threat, that's crap. Total". As to the knife under the pillow, he said he put it under his pillow on 21st January, the day before the events concerning Miss Leschenko, and left it there until his arrest on 24th January. He said at trial that he did so, that he had put the knife under his pillow, because the nephew had a fondness for knives and he, the appellant, had heard that his nephew was on the rampage saying he was going to stab his girlfriend's ex-boyfriend. He said: "I didn't want him taking my knife, I only had that one."
10. In the course of the trial the judge was asked to rule on the admissibility into evidence of the finding of the knife under the pillow. For those purposes the judge considered the following relevant provisions of the 2003 Act. First of all, section 101, which for present purposes is in these terms:

"(1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if—

...

(d) it is relevant to an important matter in issue between the defendant and the prosecution.

...

(f) it is evidence to correct a false impression given by the defendant...

(3) The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

(4) On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged."

We do not think that the judge specifically considered subsection (4) but it is relevant to mention it.

11. Section 98 and section 112 define "bad character". Section 98 provides:

"References in this Chapter to evidence of a person's 'bad character' are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which—

(a) has to do with the alleged facts of the offence with which the defendant is charged..."

Section 112(1) says that bad character is to be read in accordance with section 8 and defines "misconduct" to mean "the commission of an offence or other reprehensible behaviour."

12. Section 103 states:

"1) 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...

13. In the critical part of her ruling the judge, having rejected the Crown's primary submission which was that the evidence about the knife under the pillow was part of the facts of the offence, said this:

"Is it, therefore, bad character evidence?...

Well, having a knife of itself under your pillow is neither the commission of an offence nor of itself reprehensible behaviour. But it is, in my estimation, evidence of a disposition towards reprehensible behaviour. Somebody who has a knife under his pillow ready to hand, the jury could take that as evidence of that person having a disposition to put it to illegitimate use when necessary. Who else would have a knife under their pillow? Why else would they have it there? So, in that way, in my judgment, this does amount to bad character evidence.

Then we have to look at section 101...

Well, I am going to look at (f) at first because it seems to me, if anything, this is the strongest gateway, as it were, the strongest argument for admission of this evidence. The defendant made some very vehement denials of having had a knife in interview. Made vehement suggestions about his complete - distancing himself, can I put it that way - from knives. All that he would have would be a Stanley knife in his toolbox.

Now the impression given by that, I think the jury will be entitled to conclude, was he was an honest plumber, which is what I think he was saying he was, who would never dream of doing anything untoward with a knife, or even having a knife to do anything untoward with, and the point was forcibly made by him in interview.

So I conclude that the finding of the knife under his pillow, albeit it appears to be a different knife, is probably admissible, prima facie, as evidence to correct a false impression.

Now of course the issue, or a large issue between the prosecution and the defence, is whether he was carry a knife when he confronted Miss Leschenko. I am also driven to the conclusion that the finding of the knife under the defendant's pillow is, given what I have already said about subsection (f), also relevant to that important matter in issue in a somewhat indirect way, but, nevertheless, relevant.

But, finally, I have to consider subsection (3): 'The court must not admit evidence...

Well, that relates, as I have said, only to (d). I think the evidence is admissible under 101(f) anyway and looking at the matter overall I do not think it would have such an adverse effect on the fairness of the proceedings to admit the evidence of the knife under the pillow that I ought to exclude it.

So that [is] my solution to what I still think is a difficult problem."

14. When she came to direct the jury the judge addressed the matter of the knife under the pillow as follows (page 6F - 8A) of transcript of her summing-up:

"You heard about another knife and I emphasise it is another knife because the knife that the police found a day and a half later under the defendant's pillow is not the one, says Miss Leschenko, that was shown to her. So what is the relevance of that? How can you properly regard that evidence of the knife under the pillow? Having a domestic kitchen knife under your own pillow is not of itself a criminal offence or not in any sense wrong. You must get that straight. It is not like having an illegal gun in your house which would be a criminal offence. It is not. It is not wrong or criminal in any way. So what is the relevance of it? The defendant, when he was interviewed and charged with the allegations about the knife, was vehement when he said, 'That waving the knife shit is nonsense, mate' and, for example, when he later said 'Absolute fucking nonsense, absolute fucking nonsense,' in relation to the knife; then later when he said again later in his police interview, 'It's absolute nonsense, absolutely.' It is a repeated phrase about the knife. Again when he said to you in evidence, even more colourfully, I think, 'Knife, absolute fucking crap, I don't carry knives. The threats, that's crap, total.' The impression created, you may think, though it is a matter for you, is somebody who would not ever have anything to do with knives. Lo and behold, there is a knife under his pillow and you could, depending on your view and it is entirely a matter for you whether you take this view, take the view that was a false impression that he was creating. It is an odd place to have a knife. Albeit as I said, in itself not a crime, you would be entitled to gather its presence under his pillow as suggesting a man prepared to use a knife in a reprehensible way should the occasion arise. If you came to that conclusion, if that is your interpretation, then that would have some relevance clearly to the crucial issue in this case, whether a knife was brandished at Miss Leschenko. But the presence of the knife under his pillow of itself would not be sufficient to convict him if you were not sure about Miss Leschenko's evidence. That, I hope, is obvious and commonsense. Essentially you have got to be considering her evidence and whether you can be sure that she told you the truth and, please, consider - do not forget - the defendant's explanation about putting the knife there to hide it from his wayward nephew. If that is the true explanation for the knife's presence under the pillow or if it may be, in our view, then the knife under the pillow is of no relevance whatsoever and gives no support at all to the prosecution's case."

15. In her submissions today Miss Huntley has elegantly boiled down her much lengthier grounds to four grounds and essentially four submissions. The first is that the evidence of the knife was not admissible within gateway (d). Her second is that in any event it should have been excluded under section 101(3). Her third was that that evidence was not admissible within gateway (f) and her fourth was that the judge had misdirected herself in what she had said to the jury about this aspect of the evidence.
16. The first thing to say is that the central issue in the case, as the judge made absolutely clear to the jury, was: did the appellant produce a knife to Miss Leschenko? That aspect of the matter was made doubly clear when following the jury's retirement they returned with a most perspicacious question when they asked whether to be guilty of blackmail the production of a knife was a necessary element at all, or whether threatening behaviour and verbal abuse was sufficient to equate to menaces. That was a good question, of course. But after considering it with counsel, the judge took the view, and this had already been the effect of her summing-up, that the Crown, having put its case fairly and squarely upon threats to Miss Leschenko, with the knife, then that is something that the jury had to be sure about, if they were to convict on the blackmail charge. The answer that the judge gave was as follows (page 20):

"The answer is, members of the jury, given the way that the Crown have put their case, in this particular trial you should not convict the defendant unless you are all sure that a knife was produced and used to emphasise any threats made. So given the nature of the Crown's case here you would all have to be satisfied that a knife was involved in the making of threats."

So the critical issue was: did the appellant produce a knife in the course of his threats to Miss Leschenko?

17. As it turned out it became another important issue in the case as to whether the appellant had a disposition to misuse knives. It was he, himself, who had put that matter in issue in his interview and in his evidence when he had sought to distance himself completely from the use of knives in the way to which we have drawn attention.
18. Thirdly, we would observe, in agreement with what the judge clearly thought when she described the knife under the pillow as being odd, a knife found under the pillow does suggest the need for explanation. It is, as the judge emphasised both in her ruling and to the jury, in itself not an offence or even reprehensible conduct. But what was it doing there? Of course there is no burden upon a defendant but it is natural to want to know why he had a knife under the pillow. Fourthly, the appellant gave an explanation and it was his only explanation, both in interview and again in his evidence at trial. He said that it was to hide the knife from his nephew. The judge told the jury in her directions that if they thought that explanation might be right, then the knife under the pillow had no materiality whatsoever. Fifthly, we would observe that the appellant did not give any other explanation of having his knife under the pillow, such as needing to have that knife by way of self-defence. On the contrary, subject to the exculpation regarding the need to keep the knife out of the way of his nephew, he entirely distanced himself from any misuse of knives.
19. In those circumstances we approach Miss Huntley's four grounds and submissions by dealing first of all, because it was after all the judge's primary ground for admitting the evidence, with gateway (f). In this respect Miss Huntley's first submission was that in his interview and in his evidence the appellant's denials of having produced a knife, however vehemently they had been expressed, were no more than denials and did not seek to create a false impression. In this respect she relied upon what was said in R v Weir [2005] EWCA Crim 2866 [2006] 2 All ER 570, by Kennedy LJ, at paragraph 43, where he said this:

"Our conclusions in relation to section 101(1)(d) make it possible for us to deal more succinctly with the other gateway provisions. We accept that a simple denial of the offence or offences alleged cannot, for the purposes of section 101(1)(f), be treated as a false impression given by the defendant. But that was not the situation in this case. The appellant put himself forward as a man who not only had no previous convictions but also enjoyed a good reputation as a priest, particularly at Tooting, where he had previously been employed, and was the victim of a conspiracy hatched up by members of the Mauritian community at Thornton Heath."

Miss Huntley submits that in this case too there had simply been a simple denial of the offence, even if it had been strongly expressed. In our judgment, however, the judge was quite right to have assessed the appellant's interview at the time of her ruling and subsequently his evidence at the time she came to sum-up as going way beyond a simple denial, however vehemently expressed. He was putting himself forward as an honest plumber who did not do knives but wholly distanced himself from them. In our judgment, the Crown were entitled to put before the jury the oddity of the knife under the pillow, together with the question of the appellant's explanation of the odd presence of the knife there as material intended to rebut the false impression given by the appellant about himself.

20. Miss Huntley's second submission under the head of gateway (f) was that in any event the presence of the knife under the pillow could not arguably be said to correct a misleading impression. However, in answer to a question from the court, after some thought, Miss Huntley accepted that if the appellant had been arrested in his home, with a knife in his pocket, that was evidence which could be thought of as possibly correcting a misleading impression of having nothing do with knives. She said that it was a matter of fact and degree, as the authorities repeatedly say in such connections.
21. In our judgment, that was ultimately a realistic answer given by Miss Huntley and although of course there is a difference between a knife in a pocket in the home and a knife under a pillow on which you are sleeping, the difference is not all that great. No doubt it is a matter of fact and degree, as she says. So we would reject her ground of appeal in relation to gateway (f).
22. We turn to gateway (d). The first thing to note as we approach gateway (d), and this is to be found both in the judge's ruling and in her direction, is that once you are in a position of considering whether the presence of a knife under the pillow goes to correct a misleading impression sought to be given by the appellant that he has nothing at all to do with knives, then you are considering the question of the appellant's disposition. He puts himself forward as a man, there and there, at that time, who has nothing at all to do with knives. He has a knife. He keeps a knife under his pillow. That evidence is admissible by this stage as going to correct that misleading impression. It is a very, very small step indeed, if indeed in logic it is any step whatsoever, to go from there, to say that that knife under the pillow is evidence from which a jury could conclude that the appellant has a disposition to misuse knives. It is not, as the judge repeatedly stressed to the jury, in itself, the knife under the pillow, a crime or other reprehensible conduct.
23. We would therefore agree with the judge that by the stage one gets this far the evidence is admissible under gateway (d) as well. In any event, once the matter comes in under gateway (f), it comes in for the purpose of gateway (f) which, as we have already explained, comes very close to a question under gateway (d). In this connection, however, Miss Huntley has relied upon R v Osbourne [2007] EWCA Crim 481 (13th March 2007, unreported) where the evidence sought to be admitted and which this court said had been wrongly admitted was evidence of a prior relationship: as to which a partner of the defendant, who was being tried for murder, had said that if he did not take his medication he could be very aggressive for no reason at all "shouting at us but he was never violent." At paragraph 34 Pill LJ, giving the judgment of this court, said:

"In the context of this charge of murder, we do not accept that shouting at a partner in the manner described can amount to reprehensible behaviour within the meaning of Section 102 of the 2003 Act. Shouting between partners over the care of a very young child is not of course to be commended but in the context of a charge of murdering a close friend, it does not cross the threshold contemplated by the words of the statute."

We do not think that this citation is of any assistance to Miss Huntley. In any event, as both the judge and we have emphasised, the finding of the knife under the pillow was not itself said to amount to reprehensible conduct but only as evidence which the jury could consider might be evidence of a disposition towards reprehensible conduct. This ground of appeal is therefore also dismissed.

24. In the circumstances of admissibility under gateway (f), we do not need to consider section 101(3), but the judge did, and we agree with her view that the evidence of the knife was not something which the court needed to exclude as having such an adverse effect on the fairness of the proceedings that the court ought not to admit it. It is stronger language than section 78 of the Police and Criminal Evidence Act which falls within the same compass. Of course, as always in such a case, the evidence in itself is prejudicial and does not help a defendant, but nevertheless, in this case, unlike other cases where sometimes evidence of bad character is produced from previous situations which might themselves be in dispute, this evidence of the knife under the pillow was evidence of an undisputed fact and which was exactly contemporaneous with the events in issue at trial. In that respect, it was peculiarly sound evidence for a jury to consider, for their assessment as to where it led them. We would reject a submission by reference to section 101(3) and that is emphasised by the language of section 101(4), which in such a context requires the court to have particular regard to the length of time between the matters to which that evidence relates and the matters that form the subject of the offence charged. That we have emphasised was entirely contemporaneous.
25. Fourthly and finally, we come to the question of the judge's direction. This we would compliment as being a helpful, well-crafted and effective direction, which we have read in full. Miss Huntley submits that the direction was inconsistent with her ruling, as we understand the submission, because it was inconsistent to say that the knife under the pillow was in itself no offence or reprehensible conduct and yet to say that it could nevertheless amount to evidence of a disposition towards reprehensible conduct. But we reject that submission. The question for the jury was whether the knife under the pillow did amount to evidence from which they could infer that the appellant had a disposition or propensity to misuse knives. That was a separate question from whether the knife under the pillow was in itself criminal or reprehensible.
26. Miss Huntley's submission under this ground was that the judge gave the jury no assistance as to how they should use the evidence of the knife under the pillow. We disagree. Apart from cautioning the jury most properly about the way in which they could not use the evidence and the circumstances in which they could not take that evidence further, such as for instance if they thought the appellant's explanation for it might be correct, the judge was clear in explaining to the jury that they had heard the evidence because of the way in which the appellant had put himself before them, as a person who had nothing to do with knives. She explained to them that although it was a matter entirely for them, they could take the view that was an impression that he was seeking to create which, in the light of the knife under the pillow, was false. Similarly, she went on to explain that although she had already said that a knife under the pillow is not itself a crime, they would be entitled to regard it as suggesting that he was a man prepared to use a knife in a reprehensible way should the occasion arise. She put before them in brief and simple language both the rationale of gateway (f) on the facts of this case and the very closely linked rationale of gateway (d). We therefore reject that ground of appeal as well.
27. It follows that all four grounds of appeal as argued before this court having failed, this appeal must be dismissed.
28. LORD JUSTICE RIX: Miss Huntley, thank you for your assistance.