England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		7th July 2010

1. LORD JUSTICE TOULSON: This is an appeal by leave of the single judge against the appellant's convictions for burglary and theft at Stafford Crown Court before His Honour Judge Eades. The appellant was convicted on each count by majority of 10 to 2 after a three day trial beginning on 17 February 2010. On 3 April 2010 he was sentenced to 9 months' detention in a Young Offender Institution, concurrent on each count.
2. The grounds of appeal raise a number of points, but the single judge in granting leave indicated he regarded the key question as being whether the trial judge had been right to admit bad character evidence. At the beginning of the appeal we invited counsel to concentrate upon that issue.
3. The facts are that on 12 June 2009 between 11:30 am and 3:30pm a burglary took place at the home of Mrs Josephine Ford in Tamworth at a time when the house was unoccupied. A large number of items were stolen, including a large television. They were hidden in woodland at the far end of the garden, where they were found later the same day by Mrs Ford's husband whilst out with their dogs.
4. The number, size and weight of the stolen items suggests that the crime probably involved more than one person. Also stolen was a Rover MG motor car belonging to the occupiers, which had been parked on the forecourt. This was the subject of the theft count. The keys had been in a drawer in the kitchen. Entry had been forced by breaking a window at the back of the house. Apart from the removal of the property there was little or no disturbance. It was a tidy robbery.
5. The appellant is Mrs Ford's nephew. He was aged 18 at the time of the offence and lived at his mother's home in Sutton Coldfield. Three days after the burglary the MG was recovered from a street in Sutton Coldfield about half a mile from the appellant's mother's home. Its number plate and tax disc had been changed.
6. A witness described seeing it being parked and the driver walk off at about the same time as Mrs Ford described her son returning home. The witness described the driver as being a young man of about the appellant's age, but he saw only his back view. He put the driver's height at about 5-foot 3 to 5-foot 5. The appellant is 5-foot 9 inches tall. The police did not think it was worth arranging an identity parade.
7. Three finger or palm prints of the appellant were found on some of the recovered property, but the appellant said in interview that this was unsurprising because he was a frequent visitor to the house. It was pointed out by way of comparison that his mother's fingerprint was found on the broken pane of glass, but there was no suggestion she was involved in the burglary. Two of the prints were on an amplifier and boom box.
8. After the conclusion of the appellant's evidence his uncle was called to deal with a particular point. He then volunteered that different parts of the amplifier had been bolted together in such a way that the appellant's print found on one part of it could not have been left in the course of the burglary. In his summing up the judge dealt with the evidence about the prints in this way:

"As far as the fingerprint he was is concerned, the fingerprint that was on the base of the pyramid amplifier was the defendant's right ring finger. That, you may have come to the conclusion, could not have possibly have been placed there in the course of the burglary because the two items were screwed together. The other print was the defendant's left palm print but was on top of the amplifier by the P of pyramid, and the left thumb impression was somewhere on the white plastic carrier bag from which was recovered the remote control and other small items taken in the burglary. As you know, members of the Jury, fingerprints cannot be dated."

So he invited them to exclude consideration of the print at the base of the amplifier on the basis that that print resulted from an innocent handling of the amplifier at some stage. It seems a little difficult to suppose that the jury could have been sure that the other print found on the same article was not innocent.

9. That left the print on the carrier bag. The evidence about this was somewhat unsatisfactory. The bag itself was cut up for forensic examination. No one was able to describe it or to say where on the bag the print was found; there was therefore no evidence as to whether the print was taken to the house or removed from the house by the burglar, and if the latter how long it had been in the house and where it had been kept.
10. Apart from the bad character evidence, to which we are about to come, the prosecution's case against the appellant was based on the following: first, the tidiness of the burglary was suggested to be an indicator that this was an inside job; secondly there were the appellant's fingerprints on certain items involved in the burglary; thirdly, there was the proximity of the car when found to the appellant's mother's address and fourthly there was the fact that the car had been driven by a young man.
11. To those points the appellant's response in summary was as follows: first, no inference could be drawn that the burglary was an inside job merely from the absence of more disturbance; secondly the appellant's prints were bound to be on all sorts of places around the house - no real significance could therefore attach to a solitary print on a carrier bag, or for that matter a print on an amplifier which he had on some occasion innocently handled. As to the third and fourth points, his description did not tally with that given by the witness as to the height of the driver.
12. The prosecution applied to adduce evidence of past convictions. In their written application they put the matter in this way: "the defendant has previous convictions for offences relating to vehicles". They then set out details of convictions on three separate occasions and the application continued: "The evidence is admissible under S.101(d) of the Criminal Justice Act 2003 as it shows the defendant has a propensity to commit offences related to vehicles." It appears from the transcript of the judge's ruling on the application that the way in which it was presented was a somewhat refined version of the basis upon which it was originally put forward. The judge said:

"The prosecution say that that is clear evidence of a propensity to enter a relative's house, to use inside knowledge to retrieve the keys and to take the motor vehicle."

For reasons into which it is not necessary to go the judge excluded the evidence of one of the three convictions sought to be relied on by the prosecution, but in his initial ruling he held that they should be entitled to adduce evidence of the other two previous convictions. He summarised his reasons as follows:

"It seems to me that there is, on the face of it, a very clear link in the modus operandi of entry in the sense that in all three cases the defendant was using knowledge that he had gleaned from friendships or family relationships to gain entry into the relevant addresses and to take motor cars from the driveway. It is on the face of it quite unusual to have a young man who preys on relatives and/or friends in this fashion, and it is quite a distinctive hallmark, and to do it on three separate occasions, as alleged here, certainly is capable of amounting to a very clear propensity to take such action."

It was left at that stage that more work had to be done to identify the facts of the previous offences. That exercise ran into difficulties in relation to one previous conviction and as a result the judge ruled that evidence of that conviction should not be admitted in order to avoid the trial becoming bogged down in what would be essentially a form of undesirable satellite litigation.

13. He did not at that stage expressly reconsider the question that whether the sole remaining conviction that he was allowing to be introduced into evidence could be said of itself to be evidence of some relevant propensity. It may be inferred by implication that he considered that the reasons he gave in his initial ruling still held good for one previous conviction alone and that would seem to be confirmed by the way in which he dealt with the matter in his summing up, having summarised the circumstances of the previous conviction for three related motoring matters all committed on the same occasion, he said:

"So what the prosecution are saying is that these convictions that I have referred to, together with this witness statement, demonstrate that the defendant has a propensity to commit offences of this type; that is breaking into a relative's house, going for the car keys, which are in a private place, leaving the house and taking the car."

The reference to a witness statement was to a witness statement of the appellant's mother's former boyfriend, the truthfulness of which was accepted by the defence. The offences were committed when the appellant was aged 14. What happened in brief was this: he had been locked out of a house where he was living with his mother and her boyfriend. He broke into the house. After doing so, at some stage he took the keys to the boyfriend's car which he then drove carelessly. He was stopped and arrested by the police.

14. We were reminded of the leading authority of Hanson 2005 EWCA Crim 824, in which the then vice president Rose LJ said, at paragraph 9:

"There is no minimum number of events necessary to demonstrate such a propensity. The fewer the number of convictions the weaker is likely to be the evidence of propensity. A single previous conviction for an offence of the same description or category will often not show propensity but it may do so where, for example, it shows a tendency to unusual behaviour or where the circumstances demonstrate probative force in relation to the offence charged."

In this case the previous incident resulted in the appellant being convicted of aggravated vehicle taking, driving without a licence and driving uninsured.

15. To say that a single offence of vehicle taking at the age of 14 is evidence of a propensity to steal cars at the age of 18 is a bold submission. The prosecution relied upon the additional feature that in each case the taking of the vehicle was preceded by breaking into the property and the removal of the car keys. Sadly that in itself is not a particularly remarkable feature of vehicle taking by young offenders.
16. In our judgment the distinctive hallmark advanced by the prosecution in support of the judge's ruling does not bear analysis when one examines the two cases; the previous offence at the age of 14 and the alleged index offence at the age of 18. It is true that in each case there was a breaking into property, a removal of a car key and the subsequent driving of the car, but standing back and applying common sense there were very significant differences in the two types of offending. The first offence was by a youth cross at being locked out of his own home, who then took his mother's boyfriend's car and drove it badly. It was a piece of teenage misbehaviour of the kind which is not particularly distinctive or remarkable. The index offence involved a professional burglary in which a large amount of property was taken, the vehicle was taken not just for a joyride but as a form of vehicle theft involving some sophistication, in that the number plate was changed and the tax disc was changed. This happened when the appellant was nearly four years older than at the time of the single relevant previous offence.
17. Much of the argument depends also on the assumption of facts which were by no means self evident, such as that the index offence was committed by an insider rather than by professional thieves who had kept watch on the property and went about committing the burglary in an efficient fashion.
18. Further, the case against the appellant, aside from the past bad character, was comparatively thin. The visual evidence of the driver of the car was weak. The prosecution had really two points: the fingerprints, which were of limited value given the fact that the appellant was a frequent visitor to the home, and the finding of the car half a mile from where he was living. If that had been all the prosecution had to go on, it must be very doubtful that he would ever have been charged.
19. It has been rightly submitted by Mr Burn that this court should only interfere with a decision of a judge whether to admit evidence of bad character if satisfied that the judge was plainly wrong. In this case in our judgment he was. It is unfortunate that he was not invited to and did not reconsider whether the reasoning in his original ruling could rarely be applied in the case of a single past offence committed by a 14-year old. We remind ourselves of the final passage in his original ruling in which he said:

"It is on the face of it quite unusual to have a young man who preys on relatives and/or friends in this fashion, and it is a quite distinctive hallmark to do it on three separate occasions, as is alleged here."

To describe the behaviour on the first occasion when he broke into the home where he was living and subsequently drove off in his mother's boyfriend's car as "preying on relatives" is not an ordinary way of describing his behaviour.

20. We are satisfied that this single offence could not properly be considered to demonstrate, arguably, a propensity to commit the burglary and the theft with which he was charged. The evidence was wrongly admitted, and in those circumstances the appeal must be allowed and the conviction quashed. It is unnecessary for us to consider any other grounds in the notice of appeal.