England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM ISLEWORTH CROWN COURT
HIS HONOUR JUDGE WINSTANLEY
T20110952

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/10/2013

Sir Bernard Rix:

1. This is the appeal of Robert Speed who on 27 October 2011 was convicted in the Crown Court at Isleworth before HH Judge Winstanley and a jury of three counts of exposure contrary to section 66(1) of the Sexual Offences Act 2003. The jury's verdict was by a majority of 10 to 2. He was sentenced on the same day to four months' imprisonment concurrent on each count with 35 days already spent in custody to count towards his sentence. He has long been released from his sentence. He now appeals against conviction by leave of the full court, which also granted him the necessary extension of time. The application for leave and this appeal have been conducted by new legal representatives. The appellant's advocate in this court, Mr Edward Elwyn Jones, was not his trial counsel.
2. The prosecution case was that the appellant had exposed his genitals to a young girl, then aged 7, and her brother, then aged 6, on three separate occasions. The incidents were said to have occurred between May and early June 2011. The first incident was alleged to have taken place on the ground floor next to the communal rubbish bins of the block of flats where both the applicant and the children lived. The second incident was alleged to have taken place when the appellant was standing on a staircase between the third and fourth floors of the block. The third incident was alleged to have taken place on 2 June on the fourth floor landing whilst the complainant, the young girl, was standing in the lift with her brother. The jury were told by prosecution counsel to disregard the evidence of the little brother, because he did not support his sister's complaint but spoke of other incidents. The prosecution also referred to complaints made by the young girl to her parents, but the judge told the jury that these were not independent evidence of the truth of her complaints and that the central question for them was whether they were sure that her evidence was true. The defence case was a complete denial, including denial of a conversation about which the complainant's parents had given evidence, to the effect that the appellant was prepared to use violence, even kidnapping, against people who owed him money: the mother took this as a threat, viz not to go the police. The appellant also said that in early June he was virtually housebound following a knee operation and therefore could not have been about on the landings at that time.
3. As for a motive for a false complaint, the appellant's trial counsel in cross-examination of the parents put it directly to them both that the allegations had been trumped up to enable the girl's family to improve their status on the local authority's housing register and thus to acquire accommodation more suitable to their needs. In the appellant's evidence, he was more cautious and said "I haven't a clue". However, the family's housing needs had been placed in evidence before the jury. Indeed, the allegation put in cross-examination to the parents plainly derived from the appellant's instructions, because his Defence Statement had raised it as a possible motive.
4. These were serious matters to put to the parents, in effect that they had schooled the girl and her brother to put forward false complaints, and that the children and their parents had accordingly lied to the police and to the court about the complaints of sexual misconduct.
5. In the circumstances, it might have been the case that the appellant's previous convictions would have been admitted in any event under gateway (g) of section 101(1) of the Criminal Justice Act 2003 ("the defendant has made an attack on another person's character"), albeit in that case the court would have had a discretion under section 101(3) not to permit their admission into evidence. As it was, the previous convictions were adduced by the appellant himself, as was his right, pursuant to gateway (b) ("the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it"). The evidence was adduced through questions put to the officer in the case in cross-examination.
6. That evidence was as follows. The appellant was born in 1951, so he was some 60 years old at the time of the alleged offences. He had no previous convictions for sexual offences. He did however have a number of previous convictions going back to when he had been a juvenile. Then, in 1973 he was convicted of robbery and carrying a firearm with the intention of committing an indictable offence, for which he was sentenced to seven years in prison. In 1980 he was convicted of further offences of robbery and attempted robbery, and on this occasion received a 16 years' sentence of imprisonment. In 1991 he was convicted of conspiracy to burgle a dwelling and was sent to prison for four years, reduced on appeal to three. Thereafter, his offending history was at a significantly reduced level, albeit in 1997 he was sentenced to 21 months in prison for possession of cannabis with intent to supply. His last conviction of any sort thereafter, before the matters which are the subject matter of this appeal, was in 1998, when he was convicted of simple possession of cannabis and placed on probation. It could and can be said therefore that for some 13 years or so prior to these events he had stayed out of trouble; and that he had never been convicted of any sexual offending.
7. As this court remarked when giving leave to appeal, the appellant therefore faced a familiar dilemma. It was in his interests for the jury to be made aware that he had no previous convictions for sexual offending, but to achieve that end he would have to disclose his significant past criminal history. That disclosure was therefore adduced pursuant to section 101(1)(b) of the 2003 Act. That was his right, and required or involved no discretion on the part of the court either to admit or to shut out such evidence.
8. The appellant gave evidence in his own defence. In the course of his evidence he accepted that on a number of occasions when he had pleaded not guilty in the past he had known that he was guilty and that he had therefore "tried it on", but that he had never on such occasions given evidence in support of his defence.
9. The question arose whether and if so to what extent the previous convictions could be relied on as a matter of law in support of the prosecution's case. The judge's summing up was thorough and balanced. He was at pains to place before the jury matters which went to show discrepancies in the prosecution's evidence. He said (at page 36G of his summing-up) that "I would suggest that the prosecution case depends just about entirely on your assessment of the [complainant's] evidence". Again, in concluding his summing-up (at page 63D), he posed this question for the jury: "Have the prosecution made you sure that [the complainant] is truthful and accurate when she says that Mr Speed intentionally exposed his penis to her?"
10. The only criticism which is made of the summing-up on this appeal is as to the manner in which the judge dealt with the question as to how the appellant's previous convictions were to be considered. As it was, the judge dealt with those previous convictions as part of his account of the appellant's own defence, a defence which he put before the jury in full (at pages 48 to 63). He addressed the previous convictions right at the outset of that passage (at pages 48E to 51F). Part of his direction in that regard is criticised. It is necessary therefore to set it out in full. For convenience of reference, we have numbered the paragraphs taken from the summing-up set out below. The judge said:

"[i] First, [let me] give you some legal guidance on the evidence you heard about Mr Speed's previous convictions. You heard about Mr Speed's previous convictions because he chose himself to put this evidence before you. It was on his behalf that Miss Morris asked DC Clarke the series of questions which gave all the detail of Mr Speed's previous convictions. Miss Morris, as I say, asked those questions on behalf of Mr Speed. So what, if anything, is the significance of these previous convictions suffered by Mr Speed?

[ii] First of all, they do not make it any more likely that he has committed the offence of exposure he is currently charged with. You know his previous convictions are of quite different matters. I am not going to go through all the detail: robbery, theft, handling stolen goods, burglary or house-breaking as it used to be called, taking cars, riding in cars that are not his, violence, possession of cannabis and supply of cannabis.

[iii] You will understand, members of the jury, that convictions for these quite different matters cannot mean that he is the sort of person who is more likely to commit the sexual offences of exposure that he is charged with now. They are quite different sorts of behaviour, criminal behaviour he has engaged in in the past.

[iv] It is true that by these convictions for the offences of theft, handling stolen goods, robbery, burglary, Mr Speed accepts that he has behaved dishonestly in the past. But since 1998, for a period of 13 years, he has no convictions at all.

[v] Dishonesty about other people's property cannot mean he is more likely to be untruthful when he gives evidence to you denying the present allegations. Again, I would suggest dishonesty about other people's property is quite different from the present situation that Mr Speed faces.

[vi] The only possible relevance of these previous convictions, [on] the prosecution case, as Mr Stirling argued, is Mr Speed's acceptance that he has pleaded not guilty in the past when facing charges that are being tried by a jury in circumstances when he knew he was guilty of the offences. Mr Speed accepted, as Mr Stirling put to him in cross-examination, that he had tried it on before a jury in the past. Take into account, when assessing this aspect of the evidence, that Mr Speed – that Mr Speed has not given evidence on these occasions when he has been tried before a jury. So he has not gone into the witness box and lied to a jury in the past.

[vii] It is for you to decide what weight, if anything, you give to this matter. It is entirely a matter for you. You can disregard it altogether. It is just the fact of him having gone before a jury, pleaded not guilty in circumstances when he knows he is guilty.

[viii] If you give it any weight at all, the most it can do is support the prosecution case. There has to be quite independently a prosecution case for him to answer. That is [inaudible, sc the reliance] the prosecution [places] on the evidence of [the complainant] and we have been through all that. But the most that this aspect of his convictions can do…as I say, is to support the prosecution case.

[ix] What you absolutely cannot do is say Mr Speed is guilty just because he has pleaded not guilty in the past to a charge being tried before a jury when in fact he knew he was guilty of the offence. It cannot prove these offences against him. As I say, the very most it can do is to give some support to [the complainant's] evidence.

[x] Final point on what might be the significance of Mr Speed's convictions, it is Mr Speed, the defence, as I say, who has chosen to put the detail of these convictions before you, and one aspect of it is of course that there is no mystery about this aspect of his background as far as you are concerned. You are concerned, you are not left speculating. You know that Mr Speed has no previous convictions for sexual offences in the past."

11. Mr Elwyn Jones submitted that the appellant's evidence was consistent with nothing more than a putting of the prosecution to proof of its case, which was his right, that therefore cross-examining counsel should not have been allowed to suggest to the appellant, who had given no evidence from the witness-box in his previous trials, that he had "tried it on" with the jury, and that the judge had been in error in his summing-up in referring to the evidence which cross-examination had elicited. It was submitted that a plea of not guilty is not an assertion of innocence but merely a demand for proof and therefore says nothing whatsoever about the appellant's character or credibility. In particular Mr Elwyn Jones identified the passages in the judge's direction above at paragraph [vi], first sentence, and paragraph [vii], second sentence, as being in error.
12. Mr Elwyn Jones also asked us for permission to obtain the full transcript of the appellant's evidence at trial. This was provided to us after the hearing, and Mr Elwyn Jones made further submissions in writing with regard to it. The appellant's evidence indicates that in his summing-up the judge referred to the appellant's evidence entirely fairly, even generously, when he stressed that the appellant had told the jury that he had never given evidence at trial before and therefore had never lied to a jury in the past (at paragraph [vi] above, last sentence) and that the only matter of possible relevance was ("just") the fact that he had pleaded not guilty when he knew he was guilty (paragraph[vii], last sentence). In fact the appellant's evidence shows full acceptance of his own dishonest lack of responsibility in connection with earlier trials, and generally. The following extract from his cross-examination may be cited (at 4/5):

"Q. Now, you accept that you have pleaded not guilty to things that you have done. You agree?

Yeah.

Q. You have tried it on?

A. That doesn't mean that you go in the witness box. I just sit there.

Q. But you have tried it on?

A. Of course I've tried it on. I'm not denying that.

Q. You've given instructions, in effect, that would amount to saying that you are not guilty about something; try to get the jury to believe what your advocate has to say on your behalf?

A. of course, yeah.

Q. In effect, lying?

A. I've lied all my life."

A number of authorities were referred to in skeleton arguments, but none was cited to us at the hearing. Nevertheless, it is necessary to refer to them.

13. In R v. Singh [2007] EWCA Crim 2140 bad character was admitted under gateway (g). The defendant there had been charged with robbery. His previous convictions were for disorder, assaults on police, harassment, criminal damage and driving with excess alcohol. It was submitted on appeal that the previous convictions had been wrongly admitted because they were not of a kind such as to demonstrate either a propensity to rob or a propensity to be untruthful. Lord Justice Hughes explained, however, that they were relevant to credibility. At para 10, he said:

"They may not have been such as to demonstrate a track record for untruthfulness. They would not have been independently admissible under gateway (d) if there had not been the attack on the credibility of the complainant that there was. When the jury was assessing the evidence of the two main parties to this trial it was judging the complainant's credibility against that of the accused. The attack having been made, it was entitled to have regard to the source from which came the accusations…We think that it is perfectly plain that, once admitted under gateway (g), bad character evidence does go to the credibility of the witness in question. That accords with common experience. It is, among other things, the obverse of the reason why a defendant is entitled to plead his own good character in support of his claim that he should be believed. The reason why he is entitled to do that is because ordinary human experience is that people of proven respectability and good character are, other things being equal, more worthy of belief than those who are not. Conversely, persons of bad character may of course tell the truth and often do, but it is ordinary human experience that their word may be worth less than those who have led exemplary lives."

14. In R v. Tollady [2010] EWCA Crim 2614 the defendant was convicted of affray. When arrested, she had denied being involved. Her case was that the arresting officers had fabricated their evidence to justify their use of CS gas. At trial she adduced her own previous conviction, for disorderly behaviour, in order to explain a previous contact with an arresting officer. She also gave evidence, and was cross-examined, about it. So it was a gateway (b) case. The judge directed the jury that the previous conviction could be relevant to the jury's views as to both propensity and credibility, if they chose to take it into account. That direction was challenged on appeal. We are concerned with what this court, in its judgment there given by Lord Justice Elias, said about the credibility limb. The defendant had pleaded guilty to the earlier offence.
15. It was submitted that, in the absence of any prior discussion with the judge about his directions in this regard, the judge should have said nothing. Elias LJ rejected that submission, saying that "The jury knew of the conviction, and it would have been most unsatisfactory simply to leave it in the air for them to make of it what they thought appropriate" (at para 20). As for credibility, Elias LJ said this:

"24. A question which arises is whether this conviction could properly be said to be relevant to the appellant's credibility. In the case of Hanson [2005] 2 Cr App R 21, Rose LJ considered the circumstances in which it might be appropriate to refer to previous convictions to demonstrate a propensity to untruthfulness. He was dealing with circumstances when convictions should be admitted under section 101(1)(d) when read with the related provision in section 103. At paragraph 13 he said this:

"13. As to propensity to untruthfulness, this, as it seems to us, is not the same as propensity to dishonesty. It is to be assumed, bearing in mind the frequency with which the words honest and dishonest appear in the criminal law, that Parliament deliberately chose the word "untruthful" to convey a different meaning, reflecting a defendant's account of his behaviour, or lies told when committing an offence. Previous convictions, whether for offences of dishonesty or otherwise, are therefore only likely to be capable of showing a propensity to be untruthful where, in the present case, truthfulness is an issue and, in the earlier case, either there was a plea of not guilty and the defendant gave an account, on arrest, in interview, or in evidence, which the jury must have disbelieved, or the way in which the offence was committed shows a propensity for untruthfulness, for example, by the making of false representations. The observations made above in paragraph 9 as to the number of convictions apply equally here."

"25. Hanson was concerned with a situation where previous convictions may be considered by a jury when testing the credibility of a defendant's evidence by focusing on whether there is a propensity for untruthfulness. More general evidence of bad character would seem to be relevant to a defendant's creditworthiness. Thus it is well established that in contexts other than gateway (d), such as where a defendant challenges the character of a prosecution witness or where an issue arises between a defendant and a co-defendant (that is where gateways (g) and (e) of section 101(1) are involved), this court has taken a broader view as to the nature of the convictions which may be adduced in order to help establish lack of credibility: see eg Stephenson [2006] EWCA Crim 2325 and Singh [2007] EWCA Crim 2140. In principle reliance can be placed on any convictions whether or not falling within the Hanson criteria. That is probably the situation here, not least because the appellant was introducing this evidence in effect to challenge the character of a prosecution witness. But even assuming that the evidence was in principle admissible for the purpose of judging the credibility of the witness, even though it fell outside the categories identified by Rose LJ in paragraph 13 of Hanson, in our judgment it was not appropriate for the judge to have allowed this conviction to be used in that way in the circumstances of this case."

"26. If this material had not been before the court at the instigation of the defendant, we do not think it would be right for the judge to have admitted this single past conviction, some five years old, solely in relation to credibility. Nor do we think that it should have been used in that way even though introduced under [gateway] (b). It was not sufficiently material to the issue of credibility. However, we are satisfied that in the circumstances of this case, albeit that the judge should not have referred to the credibility limb in her summing up on bad character, it had no adverse consequences as far as the defendant was concerned. It did not render her conviction unsafe…"

16. Elias LJ went on to observe that the previous conviction was already before the jury on the propensity to offend limb and it was unrealistic in the circumstances to make a distinction where "the potential link with credibility is obvious", citing Lord Phillips in R v. Campbell [2007] 1 WLR 2798 about the distinction between propensity to offend and credibility being "usually unrealistic".
17. The approach of Hughes LJ in Singh seems to us to present grave difficulties for the appellant, even though the reasoning of Elias LJ in Tollady can be said to have something for and against each party to the present appeal. As for Singh, when the court raised that authority with Mr Elwyn Jones in argument, his response was to agree that it is general common sense, indeed inescapable, that a person with a poor record where previous convictions are concerned is, as a matter of general approach, and other things being equal, not as worthy of belief as someone without such a record. For the reasons given in Tollady, it seems to us that such an approach is as apposite where previous convictions are adduced under gateway (b) by a defendant himself, as of right, as where they are admitted, subject to the court's discretion, under gateway (g). Indeed, in our judgment it would be inappropriate in a gateway (b) situation for a defendant to have carte blanche to make such points as he wishes about his previous record, without facing the possibility that his record does him no favours where credibility is concerned. As Hughes LJ observed, ordinary human experience is that the word of persons of bad character may be worth less than that of those who have led exemplary lives. In the present case, the jury had to make up their minds about the credibility of a little girl, whose complaint was denied by the appellant. The evidence of young children presents its own difficulties of evaluation, and it may not therefore be entirely appropriate to speak of such children as though they were identical, in matters of credibility, to adults who have led exemplary lives. Nevertheless, it is right in our judgment that, in general at any rate, those who deny the word of young children but have a serious background of previous convictions which they adduce in what they consider to be their own interest should face the possibility that a fair summing-up will not entirely gloss over the problem for the credibility of such a witness. Otherwise the "familiar dilemma" of which this court spoke in giving this appellant leave to appeal would be no dilemma at all.
18. As for Tollady, the peculiarity of that case was that there was only one previous conviction of a somewhat minor nature, in respect of which that defendant had pleaded guilty, and yet the trial judge in his summing-up gave a direction which was expressly couched in terms of a propensity to be untruthful: "A person with a bad character may be less likely to tell the truth, but it does not follow that they are incapable of doing so" (see at para 7). That was a generalisation which was not in the least tailored to the particular facts of that case. We do not consider that the general problem of the credibility of a defendant vis a vis the credibility of a complainant is the same as the specific issue of whether a defendant may be considered to have a propensity to be untruthful. That is the same point as Hughes LJ made in Singh at the beginning of the passage cited above.
19. As it is, in Tollady this court accepted that the adducement of previous bad character under gateway (b) is analogous to the consequences of the court's admission of bad character in its discretion under gateway (g). Although gateway (g) is guarded by an issue of discretion as to admissibility, whereas gateway (b) is an open door to a defendant who so chooses, in both cases the previous convictions, where they enter the evidence, do so as a consequence of the tactical choices of the defendant. Moreover, Elias LJ accepted that where bad character is adduced under gateway (b), the logic of the general approach applied in Singh (among other cases) is that the issue of the defendant's credibility may arise whether or not the specific criteria mentioned by Rose LJ in Hanson are met. Elias LJ also emphasised that where bad character is adduced by a defendant, a judge is obliged to give a jury some help as to its possible significance, if any.
20. In the present case, the judge's direction was in our judgment carefully and fairly tailored to the particular circumstances of the trial and the evidence presented to the jury. Very little of it is in any event objected to. In paragraph [i], the judge emphasised that the evidence had been adduced because the appellant had himself chosen to put this evidence before the jury. He treated it as part of the appellant's defence, and went on to ask what, if anything, was its significance. In paragraphs [ii] and [iii], in answer to that question, he underlined the point "First of all", that, being convictions for quite different offences, they did not make it any more likely that the appellant had committed the offence of exposure with which he was currently charged. He thus excluded any possibility of a propensity to offend in a relevant way. In paragraph [iv], he then quite properly reminded the jury that the appellant had accepted that he had behaved dishonestly in the past (theft, handling, burglary, robbery), but he also reminded the jury that since 1998, for 13 years, the appellant had had no convictions at all. We bear in mind the observations in Hanson that dishonesty is not the same thing as untruthfulness, but that was exactly the point the judge went on to make, in favour of the appellant, when he remarked, in paragraph [v], that dishonest conduct in the past did not mean that the appellant was more likely to be untruthful in his evidence denying the present allegations. In the case of a man who had volunteered in his evidence that he had "lied all my life", that was a most favourable direction. Moreover, we repeat that what was in issue in the present case was not a propensity to be untruthful but a question of credibility.
21. Then in paragraph [vi], in one of the few passages which Mr Elwyn Jones has criticised, the judge stated the "only possible relevance of these previous convictions, [on] the prosecution case" as the accepted fact that the appellant had pleaded not guilty in the past when he had known that he was guilty. The judge, again very fairly to the appellant, did not even give his own imprimatur to this, but reminded the jury of the prosecution's submission. It was in this context that the judge reminded the jury of the evidence before them that the appellant had accepted that he had "tried it on" before a jury in the past. However, the judge immediately went on to counterpoint the fact in evidence that the appellant had never on such occasions in the past gone into the witness box to lie to the jury. It is really in paragraph [vii] that the judge gives the kernel of his direction, when he told the jury that it was for them what, if any, weight they gave to this matter and they could "disregard it altogether". If, however, they were minded to give it any weight, the most it could do was to support a prosecution case which was independently established, for it could not prove anything by itself (paragraphs [viii] and [ix]). Finally, in paragraph [x], the judge ended by repeating that the jury had heard about the convictions because the appellant had chosen to adduce them, and in that context he emphasised that there were no previous sexual convictions, which was after all the essential assistance which the appellant had sought from this evidence. Therefore, the judge both began and ended his direction by emphasising the defendant's own case concerning his previous conduct.
22. We asked Mr Elwyn Jones how the judge ought to have directed the jury, if he is said to have erred as submitted. His response was to say that the judge's credibility direction ought to have been couched in the most general of terms. In our judgment, that is what the judge did.
23. In our judgment, it is not possible to criticise this carefully crafted direction as being unfair. The evidence was what it was. It was before the jury because the appellant had chosen for himself to open the matter of his convictions. There is no question of wrongful admission of such evidence. The judge was generous to the appellant in the restrained manner in which he dealt with that evidence. He rejected any possibility of inferring a propensity to offend as charged, and he did not suggest a propensity to be untruthful. He simply raised the issue for the jury, which was of course already before them, as to the general credibility of the appellant in the circumstances identified in his own evidence. In our judgment, he was entitled to do that.
24. In these circumstances, we are not here concerned with any constitutional question such as might be raised by the right of a defendant to put the prosecution to proof. That is not in issue. Moreover, we are aware that under the Written Standards for the Conduct of Professional Work (section 12, concerning Confessions of Guilt) the fact that a person charged with a crime has even confessed to his counsel that he committed the offence charged is no bar to that barrister appearing or continuing to appear in his defence. However, such a confession "imposes very strict limitations on the conduct of the defence". There is nothing, however, in the evidence at the appellant's trial to suggest that his counsel on those previous occasions when he pleaded not guilty but gave no evidence was operating under those strict limitations because of a confession. On the contrary, the evidence given by the appellant in cross-examination paints a very different picture of the situation at those previous trials. We are here rather concerned with the fairness of a direction which has been made necessary by the appellant's choice to raise the matter of his previous convictions: and it stands to reason that such a direction had to be realistic in the light of the evidence before the jury, and fair of course to the appellant, but also fair to the little girl whose credibility was primarily in question.
25. It follows that in our judgment there was no misdirection. But even if there had been, it would have been of a minor kind and does not in our judgment affect the safety of the conviction. Although there were certain discrepancies in the prosecution evidence, all of which were carefully stated by the judge in his summing-up (at pages 33-34) where he made reference also to the defence submission that these were "very significant inconsistencies" (consisting of differences between the complainant's account of what happened and the evidence from her parents of what she had told them), nevertheless all such matters were fully before the jury for their assessment. They do not appear to us to be significant in the scheme of things. The jury, albeit by a majority, clearly accepted the credibility of the complainant, which was the essential issue strongly and repeatedly emphasised by the judge in his summing-up, and which, on the judge's direction concerning the evidence about the appellant's previous convictions, had to be accepted, at any rate prima facie, before they could consider at all the appellant's credibility.
26. For these reasons, we dismiss this appeal.