England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
(Mr. Recorder Bartle Q.C.)

		Royal Courts of Justice Strand, London, WC2A 2LL
		8 February 2011

Mr Justice Jack :

1. This renewed application for leave to appeal raises questions as to the admissibility of bad character evidence when a jury is determining pursuant to section 4A of the Criminal Procedure (Insanity) Act 1964 whether an accused person did the act or made the omission charged against him as the offence. Section 4A comes into play following a determination by a judge pursuant to section 4 of the Act that an accused is not fit to be tried. The court has been assisted by the submissions of Mr Paul Garlick QC on behalf of the applicant, Adam Creed, and has had the advantage of written submissions from Mr John Lynch for the Crown provided at the request of the Registrar for the assistance of the Single Judge, which Mr Lynch has supported before us orally.
2. Mr Creed faced a single charge of burglary. The indictment alleged that on 6 April 2007 having entered Belvoir House, Vauxhall Bridge Road, as a trespasser, he stole electronic goods. On 29 June 2009 in the Crown Court at Southwark His Honour Judge Stone QC heard evidence as to his mental state and determined pursuant to section 4 that he was unfit to be tried. A jury was later empanelled before Mr Recorder Bartle QC to determine the issue under section 4A, and on 7 August 2009 the jury found that he had committed the actus reus of burglary. During the course of that hearing the Recorder admitted evidence of the previous convictions of Mr Creed for burglary. On 30 October 2009 Mr Creed was made subject to a hospital order under section 37 of the Mental Health Act 1983.
3. Belvoir House is a block of flats. In the early hours of 6^th April 2007 someone entered the reception area and forced their way into the adjoining security room. Disinfectant and bleach were thrown around. The total damage was estimated at £4,920. In addition three items of electronic equipment were stolen. The prosecution case against Mr Creed rested on his DNA being found on a screwdriver which had apparently been used to effect a forcible entry, and on CCTV footage which the prosecution said showed Mr Creed hanging about outside the building. During the course of the hearing the jury heard evidence that Mr Creed had been convicted of non-dwelling house burglaries on 21 December 2003, 26 August 2004, 16 March 2006 and 16 April 2007. They heard no details of the circumstances of those convictions.
4. The Recorder had given leave for the admission of the convictions in evidence in a ruling delivered on 6^th August 2009. The application had been made under section 101 (1) (d) of the Criminal Justice Act 2003 and showing propensity was relied upon. In his ruling the Recorder addressed the questions raised in Hanson [2005] EWCA Crim 824, [2005] 2 Cr App R 21. It was not submitted to him that section 101 did not apply.
5. The primary submission before us is that section 101 is inapplicable in proceedings under section 4A of the 1964 Act.
6. Section 4 of the 1964 Act as amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and the Domestic Violence, Crime and Victims Act 2004 provides:

"4.?(1) This section applies where on the trial of a person the question arises (at the instance of the defence or otherwise) whether the accused is under a disability, that is to say, under any disability such that apart from this Act it would constitute a bar to his being tried.

(2) If, having regard to the nature of the supposed disability, the court are of opinion that it is expedient to do so and in the interests of the accused, they may postpone consideration of the question of fitness o be tried until any time up to the opening of the case for the defence.

(3) If, before the question of fitness to be tried falls to be determined, the jury return a verdict of acquittal on the count or each of the counts on which the accused is being tried, that question shall not be determined.

(4) Subject to subsections (2) and (3) above, the question of fitness to be tried shall be determined as soon as it arises.

(5) The question of fitness to be tried shall be determined by the court without a jury.

(6) The court shall not make a determination under subsection (5) above except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved."

Section 4A was added by the 1991 Act. As amended by the 2004 Act it provides:

"4A.?(1) This section applies where in accordance with section 4(5) above it is determined by a court that the accused is under a disability.

(2) The trial shall not proceed or further proceed but is shall be determined by a jury –

(a) on the evidence (if any) already given in the trial; and

(b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence,

whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence.

(3) If as respects that count or any of those counts the jury are satisfied as mentioned in subsection (2) above, they shall make a finding that the accused did the act or made the omission charged against him.

(4) If as respects that count or any of those counts the jury are not so satisfied, they shall return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion.

(5) Where the question of disability was determined after arraignment of the accused, the determination under subsection (2) is to be made by the jury by whom he was being tried."

Sections 5 and 5A deal with the powers of the court where a person has been found either not guilty by reason of insanity or unfit to plead and to have done the act or omission charged against him. The alternatives are the making of a hospital order, a supervision order, and an absolute discharge.

7. The law relating to the introduction of evidence of bad character in criminal proceedings is found in Chapter 1 of Part 11 of the Criminal Justice Act 2003. Sections 100 and 101 relate to 'non-defendant's bad character' and 'defendant's bad character' respectively. Section 100 begins:

"100(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if … ."

Section 101 begins:

"101(1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if …. ."

Section 101(1)(d) permits evidence to be given which "is relevant to an important matter in issue between the defendant and the prosecution", and by section 103(1)(a) such matters include:

"the question whether the defendant has a propensity to commit offences of the kind with which he is charged, …"

Section 112(1) provides definitions for the purpose of Chapter 1 as follows:

""criminal proceedings" means criminal proceedings in relation to which the strict rules of evidence apply

"defendant", in relation to criminal proceedings, means a person charged with an offence in those proceedings, and "co-defendant", in relation to a defendant, means a person charged with an offence in the same proceedings;"

8. So for section 101 in particular to apply the proceedings must be 'criminal proceedings' as defined by section 112, and the person whose bad character is at issue must be a 'defendant' as so defined. The definition of 'criminal proceedings' provided by section 112 perhaps adds little save to exclude any proceedings to which the strict rules of evidence do not apply, which proceedings might otherwise be described as 'criminal proceedings.'
9. The nature of proceedings under section 4A was considered by the House of Lords in R v H [2003] UKHL 1, [2003] 1 WLR 411. The appellant had been charged with indecent assault and found unfit to plead by a jury pursuant to section 4 as it then was. (That this should be decided by a judge was introduced by the 2004 Act.) It was argued that to proceed under section 4A to determine whether he had done the acts charged would be an abuse of process and infringe his right to a fair trial under Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The headnote to the report states: 'the procedure under section 4A of the 1964 Act did not as a matter of domestic law involve the determination of a criminal charge and the defendant was not "charged with a criminal offence within article 6 of the Convention; and that in any event the procedure, if properly conducted, was fair and compatible with the rights of the accused person." In the course of his speech, with which the others of their Lordships agreed, Lord Bingham said:

"14. . . . Thus the crucial issue dividing the parties was whether the procedure did or did not involve the determination of a criminal charge.

15. . . . It is clear that the domestic law of England and Wales does not treat the section 4A procedure as involving the determination of a criminal charge. When a finding of unfitness is made it is provided that the trial (meaning the criminal trial) "shall not proceed or further proceed". Section 4A(2) is expressed in terms which make it clear that the task of a jury is not that carried out in a criminal trial: for reasons already given, the jury have power to acquit, but none to convict. The jury take an oath different from that in a criminal trial. There can be no verdict of guilty. There can be no punishment.

. . .

18. . . . Whether one views the matter through domestic or European spectacles, the answer is the same: the purpose and function of the section 4A procedure is not to decide whether the accused has committed a criminal offence. The procedure can result in a final acquittal, but it cannot result in a conviction and it cannot result in punishment."

10. In the case of Chal [2007] EWCA Crim 2647, [2008] 1 Cr. App. 18 this court had to consider whether the hearsay provisions of the 2003 Act were applicable to proceedings pursuant to section 4A. The hearsay provisions of the Act follow the bad character provisions and form Chapter 2 of Part 11. Section 114 begins:

"114(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if …."

11. Section 134 defines "criminal proceedings" and "defendant" in the same terms as section 112. Section 125 provides for the court to stop a case where the hearsay statement is so unconvincing and its importance is such that a conviction would be unsafe. Section 125(3) provides that in proceedings under section 4A of the 1964 Act, where the court is satisfied that the case against the defendant rests wholly or partly on a hearsay statement and the statement is so unconvincing that considering its importance to the case against the person a finding that he did the act or omission would be unsafe, the court must direct an acquittal, or, if there ought to be a rehearing, discharge the jury.
12. In giving the judgment of this court Toulson LJ considered two possible meanings of the phrase "criminal proceedings" as used in the provisions of Chapter 2. It could be confined to proceedings which could end in the determination of criminal guilt or the imposition of a penalty; or it could be construed more generally to include all proceedings within the compass or framework of criminal proceedings, including ancillary proceedings which cannot of themselves involve conviction or punishment, in so far as the strict rules of evidence apply.
13. He pointed out that if the first construction was right, it did not follow that hearsay was prohibited, for it might be left by the relevant legislation to the court to fill in the gaps and devise a fair procedure. On the assumption that section 4A proceedings do not fall within the expression "criminal proceedings" to which the strict rules of evidence apply" because they are not criminal proceedings as such, he pointed to the fact that section 4A did not say that the jury had to be unanimous: but it had rightly always been assumed that the same provisions as to unanimity must apply as at a trial. Likewise with the burden and standard of proof. He continued that it is axiomatic in proceedings under section 4A that the jury must be satisfied by evidence which would be admissible if the defendant were on trial. He pointed to the fact that the issue of fitness to be tried might arise during a trial in the course of evidence: see sections 4 and 4A. So it could hardly have been intended that different rules of evidence should apply before and after the judge's determination. He observed that the hearsay provisions might operate in favour of, as well as against, a defendant, for a defendant might himself seek to introduce hearsay evidence. As to what rules were to apply if the 2003 Act did not he said:

"30. Mr Baker [counsel for the appellant] was in difficulty in suggesting what rules should apply to section 4A proceedings if, as he submitted, they were not criminal proceedings. His ultimate submission was that the court should apply common law rules of criminal evidence. We can see no logical reason why the court should do so and every reason why it should not do so, if, as we stress, the purpose of a hearing under section 4A is to mirror as closely as possible the fact-finding process at a criminal trial."

14. He referred to section 125(3). It had been submitted that the sub-section would only apply if the hearsay statement had been admitted under a common law exception to the hearsay rule, or by agreement. Toulson LJ said in paragraphs 33 and 34 of the judgment:

"33. We think it unrealistic to suppose that Parliament can have had such a narrow intention in mind. It is plain in our judgment that the drafter contemplated that hearsay might be admissible in section 4A proceedings, whether by direct application or the provisions of that part of the Act, or by a court applying the same rules to section 4A proceedings as would be applicable to a trial.

34. In our judgment, the Judge had power to admit the relevant evidence whether on the basis that Chapter 2 of Part 11 of the 2003 Act applies directly to section 4A proceedings as a matter of statutory interpretation or whether on the basis that it does not but the court in such proceedings should adopt the same rules of evidence as would apply in criminal proceedings. It is an arid question which of those analyses is to be preferred. We can see the force of the argument in favour of the latter analysis, which avoids having to say that section 4A proceedings are criminal proceedings for one purpose but are not criminal proceedings for another, but it is a point of purely intellectual interest which it is unnecessary for us formally to decide for present purposes."

15. In an argument which had not been foreshadowed in the perfected grounds of appeal Mr Garlick sought to distinguish for the purposes of section 4A the bad character provisions in Chapter 1 of Part 11 of the Act from the hearsay provisions in chapter 2 by an analysis of the wording of the relevant sections. In our view they are indistinguishable for present purpose because they each apply in "criminal proceedings". The definitions of "criminal proceedings" and "defendant" in each chapter are the same. The bad character provisions deal with the admission of bad character evidence against defendants and non-defendants separately, whereas the hearsay provisions apply generally. But we do not think that anything turns on this. There is no equivalent to section 125(3) in the bad character provisions, but that is no surprise because there is and could be no equivalent to section 125(1) in Chapter 1.
16. Mr Garlick relied particularly on the submission that a person in section 4A proceedings is not facing a criminal charge, and so is not a "defendant" as defined by section 112. We accept that he is on strong ground there: see the speech of Lord Bingham in R v H quoted above. The point can also be similarly made that section 4A proceedings are not "criminal proceedings" as so defined. But that leaves the question of how the 'gaps' left by Parliament in the section 4A procedure which were considered in Chal are to be filled.
17. It was submitted to us that we should distinguish Chal on the ground that in the case of hearsay evidence a defendant's representatives can assess it and make submissions as to its relevance and admissibility, whereas where previous convictions are concerned, the defendant cannot give instructions to arm his counsel with his version of the events on which a conviction is based, nor as to his situation when he was convicted, which would be relevant if, for example, he was able to say he had started on a different life. However, the very situation in which a section 4A hearing arises puts the defendant's representatives at a disadvantage, for their client has been found unfit to plead. He may well be unable to give them any instructions at all. Inability to give instruction as to a bad character application would be just one aspect of that. The defendant's representatives are able to check the records as to a conviction. However where, as here, the application is limited to the fact of the convictions, any disadvantage is much reduced. Further, where an application is made under section 101(1)(d) or (g) the court has a discretion to exclude the evidence under subsection (3) on the ground of fairness. That enables the court to take account of any particular situation in relation to bad character, which has arisen in the section for a proceeding.
18. We are satisfied that the same general considerations as were taken into account in Chal in relation to hearsay must apply to bad character applications. It is axiomatic that for the purpose of section 4A the jury must be satisfied of any facts they may find by admissible evidence. What if bad character has been admitted in the proceedings before the jury before the issue of fitness arises and is determined? What if the defendant wishes through his advisors to adduce evidence as to the bad character of a prosecution witness? What rules are to apply if the provisions of the 2003 Act do not? Accordingly, we consider that even if section 4A hearings are not criminal proceedings to which the strict rules of evidence apply, because they are not strictly criminal proceedings at all, the intention of Parliament must have been that the court should apply the bad character provisions of the 2003 Act. We do not think that Chal is distinguishable. It is binding on us. It was rightly decided.
19. The second ground on which it is submitted that bad character evidence should not be submitted pursuant to the 2003 Act is that it results in inequality of arms between the prosecution and defendant. It is submitted that even if the defendant is not a party to criminal proceedings, his liberty is at stake. So article 6 of the European Convention on Human Rights should be applied to exclude such evidence. It is not however submitted that proceedings under section 4A offend human rights law. That would run into difficulties with the decision in R v H. It is inherent in the situation that by reason of his mental state a defendant may not be able to give his representatives instructions on particular aspects of the case or upon the case generally. In the absence of a wholesale attack on section 4A there can be nothing in an attack on the application of section 101.
20. There are further proposed grounds of appeal which are of a rather different nature.
21. The third proposed ground of appeal is that the earlier burglaries were not of the same category or description – the terms used in section 103 (2) – as the offence on the indictment in 2009 because Mr Creed's mental state had changed. In fact there was no evidence to suggest that his mental state in April 2007 was as it was found to be in 2009 and was different to that when he committed his earlier burglaries. But in any event, we consider that the previous convictions would remain relevant to establish a propensity to burgle, even if his mental state had deteriorated by 2007.
22. The fourth ground is that the case against Mr Creed was weak and so the convictions should not have been admitted to bolster it. In particular, reference is made to the Crown's alleged inability to prove that the CCTV footage related to Belvoir House. The evidence in this respect was fully reviewed in the Judge's summing up. He had also had to consider an application to exclude the evidence, which he had refused, in our view rightly. We are satisfied that there was convincing evidence of continuity in relation to the relevant material. Secondly it is said that the evidence that Mr Creed entered as a trespasser was weak. In our view the suggestion that the intruder may have had permission cannot be taken seriously. It was very far from a weak case. The CCTV evidence and the DNA evidence in fact presented a strong case.
23. In our view, when the submissions of Mr Garlick as to the application of the bad character provisions of the Criminal Justice Act 2003 are analysed, it becomes clear that they are bound to fail, interesting as they may be. For that reason and the reasons we have set out in relation to the other proposed grounds, we do not consider that the proposed appeal has a real prospect of success. We therefore refuse permission to appeal.