England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		1 July 2010

1. LORD JUSTICE MAURICE KAY: On 18th June 2009 at the Inner London Crown Court this appellant was convicted of an offence of assault occasioning actual bodily harm. She was acquitted of a second allegation of assault by beating said to have taken place on the same occasion. She now appeals against conviction by leave of the single judge.
2. The events giving rise to her conviction occurred on 24th March 2008 when the appellant and her daughters went to a market in Peckham seeking to exchange some shoes that she had bought the previous day. In the event they did not find suitable replacements and the appellant asked the market trader in question, Amrika Luchmee, for a refund. Miss Luchmee refused a refund and eventually it was apparently agreed that there would be a credit note issued. Clearly there was some degree of irritation and aggravation between the two women. One thing led to another and a point was reached at which the appellant decided to take the matter into her own hands and help herself to money from the till which would have been the equivalent of the refund that she had sought but been refused. She climbed over the counter to get at the till. The till was locked. Miss Luchmee's evidence was that she was pushed into some metal shelving. That push formed the basis of the count upon which the appellant was acquitted.
3. Another market trader who was nearby, Kevin Bishenden, arrived on the scene and intervened. In the course of his intervention he was bitten on the arm by the appellant. Part of these events had been captured on CCTV which enabled the jury to see the appellant's mood and to see her climbing over the counter to reach the till.
4. At trial the appellant's case was that she had not pushed Miss Luchmee and that she had been unlawfully restrained by Kevin Bishenden, whereupon she had inflicted the bite in lawful self-defence. In addition to Miss Luchmee and Mr Bishenden, two other market traders gave evidence as to what they had seen.
5. The appellant's precise evidence so far as Mr Bishenden was concerned is that, as she hugged the till, he had grabbed her from behind. One of his arms was around her breast, the other around her neck. He had held her tightly and tried to bend her backwards, that had caused her pain and instinctively she had inflicted the bite in self-defence.
6. Plainly this was an uncomplicated case in which the jury had to assess the evidence of the witnesses on both sides.
7. On this appeal against conviction the appellant's essential complaint is that the judge did not properly direct the jury as to her effective good character. Before the judge began his summing-up he engaged in a discussion with counsel about good character. The position was that the appellant has one previous conviction incurred in 1981 when she was 17 years of age for an offence of theft and for which she received a conditional discharge. Her life thereafter has been creditable and now, at the age of 47, as she was at trial, she presented as a well-educated, intelligent and articulate woman. Those are the words of the judge.
8. Following the very short and anticipated exchange with counsel prior to commencing his summing-up, the judge said this of the previous conviction:

"It is 28, 29 years later -- almost 30 years later. She has done nothing else. The shoplifting is really -- I mean, even though it took place in a shop, it is unrelated really to this type of thing because this is effectively trying to rob a till, in practice, that is really what was happening, and therefore it is appropriate to give a direction which would direct the jury to -- if they want to, to treat her as a person of good character with that which flows from that direction. Is there any objection to that from the Crown?"

Counsel then representing the Crown, not Mr Trafford, said there was no such objection and the judge proceeded to sum up shortly afterwards.

9. On behalf of the appellant Mr Sharkey complains that by leaving it to the jury to decide whether the appellant should be treated as a person of good character, the judge sold her short. The direction given by the judge was faithful to what he had previously said to counsel. Having told the jury about the date and modesty of the previous conviction, he said:

"Now, it is up to you, but you may feel that the defendant should be treated as being a person of good character in the sense that she should be treated as having no convictions recorded against her. If you think so then it is a matter which you should take into account in evaluating the evidence, and in considering whether she is the sort of person who is likely to have committed the offences with which she is charged. Of course, good character by itself cannot provide a defence to a criminal charge."

He then proceeded to give both the credibility and propensity limbs of a good character direction.

10. Mr Sharkey is correct to observe that the matter was put to the jury on the basis that it was up to them as to whether they treated the appellant as a person of good character or not, although it is right to say that in addition to referring to the antiquity and modesty of the previous conviction, in the next paragraph the judge expressly referred to the creditable features of her character, which we described earlier, and gave the jury something of a steer when he said:

"Having regard to what you know about the defendant you may feel that she is entitled to ask you to give weight to her good character when deciding whether the prosecution has satisfied you of her guilt."

11. Circumstances such as these are by no means unusual. The law ought to be clear. However, Mr Trafford submits that it is not. Is he right? He is able to point to decisions of this court in which it has countenanced an approach similar to that of the judge in the present case - see for example Macdonald [1999] 6 Archbold News 3, [1999] EWCA Crim 843 and R v W(M) [2008] EWCA Crim 3091. However, that is far from a complete picture. In Gray [2004] 2 CrAppR 20, Rix LJ carried out a careful analysis of the authorities. He distilled them into a list of principles set out in paragraph 57 of his judgment. The relevant ones are these:

"Where the defendant is not of absolutely good character, the trial judge has a discretion as to whether or not to give a 'good character'; direction, and if so in what terms, but he cannot properly decide not to do so, and in unqualified terms, if the blemishes can only be regarded as irrelevant, or of no significance, in relation to the offence charged.

By the same token, there will be cases where the defendant is not of absolutely good character but where the only proper course is to give a qualified direction in suitably modified terms, assuming of course that the fact of the previous conviction or other character blemish is known to the jury. This is likely to mean that careful consideration will have to be given to the distinction between the two limbs of credibility and propensity."

More recently, in R v M(CP) [2009] 2 CrAppR 3, Moses LJ referred to the case of MacDonald and also W(M) before adding at paragraph 15:

"We mention the point because it seems to us that once a judge has decided that a good character direction should be given, there is no room for a jury to disagree as to the propriety of using the good character of the defendant in his favour. To direct the jury that they are entitled to treat the factor as relevant' if they think that right and fair' seems to us to leave it open to a jury to disagree with the judge. There is no basis for it to disagree once the judge has determined that fairness demands that all convictions be ignored:"

More recently still, in the case of Baquari [2010] EWCA Crim 1279, Maurice Kay LJ said at paragraph 8:

"It was for the judge to decide upon the appropriate direction. However, there are parameters. In a case where there was a defendant aged 37, a solitary motoring-related offence and an allegation of serious sexual offences against a 16-year-old girl, the only reasonable conclusion was that he should have treated the appellant as a man of effective good character entitled to both limbs of the good character direction, albeit with reference to the previous conviction and its irrelevance in the circumstances."

In our judgment the weight of modern authority recognises that in a clear case the judge ought to direct the jury to treat a defendant with only an old and irrelevant conviction as being a person of good character entitled to both limbs of the conventional good character direction. We consider this to have been such a case. The only reasonable approach was to direct the jury in that way. In failing to do so the judge in an otherwise excellent summing-up, fell into error.

12. The next question is whether that error impacts upon the safety of the conviction. We are sure that it does not. The jury having been left to decide for themselves whether to treat the appellant as a person of good character, we would be astonished if they did not accede to that invitation in her favour, particularly in view of the way in which the judge addressed them. Moreover, the case was an uncomplicated one in which the appellant admitted biting Kevin Bishenden. The issue on count 1 was self-defence. The appellant faced the obvious difficulty that on her own case he had grabbed her when she was trying, in a state of rage, to take money from the till. Whatever may have been the reason for her acquittal on count 2, the evidence against her on count 1 was very strong. The issue was in fact crystallised by the judge when he was summing-up the facts. He said at page 17 of the transcript:

"So the essential factual issue for you to determine is whether Kevin interposed himself between the till and the defendant in the way which the other prosecution witnesses have described, or whether he grabbed the defendant from behind as she described."

In other words, there was a dispute about the configuration of the parties at the important moment of the infliction of the injury in relation to which the appellant had advanced a version which was disputed by essentially all the other prosecution witnesses.

13. Having regard to all these circumstances and the otherwise favourable ways in which the judge directed the jury on the question of good character, we do not consider that the conviction is unsafe. Accordingly, the appeal against conviction is dismissed.
14. We now deal with the appeal against sentence for which we give leave. No complaint is made about the primary sentence which was one of three months' imprisonment suspended for 12 months with various ancillary requirements. The complaint is about the financial orders that the appellant pay £500 in compensation to the victim of the offence and £500 towards the costs of the prosecution. The £1,000 in total to be paid at a rate of £5 per week, the compensation to be paid before the costs.
15. Mr Sharkey complains that that would make this a four year order and whilst there is no rule of law preventing such an order there is guidance to the effect that in some circumstances that is simply too long and two to three years is the more usual limit.
16. One of the reasons for its length is the relative modesty of the weekly instalments of £5. That was the sum offered by Mr Sharkey on instructions at the Crown Court. It was accepted by the judge. There was no real investigation into the appellant's means and no doubt it was with that in mind that when the single judge gave leave to appeal against conviction he directed that if the appeal against sentence was to be pursued the appellant should file an affidavit of means with this court. She has not done so. She is here today and Mr Sharkey has taken instructions. They are to the effect that having lost her employment as a result of this conviction the appellant is on benefits.
17. We are bound to say that we find the evidence as to her means deficient, but we have had regard to the overall consequences of the order. It may be that our generosity is inappropriate, but we have come to the conclusion that by reason of the duration of the order we should effect some reduction of it. We do not propose to disturb the order for compensation which should continue to be paid at £5 per week, as a priority, but we reduce the order for costs from £500 to £250 on the basis that that too will be paid at £5 per week, commencing when the compensation has been paid off. To that limited extent the appeal against sentence is allowed.