England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		18 April 2013

LORD JUSTICE ELIAS:

1. On 9 July 2012 in the Crown Court at Portsmouth before His Honour Judge Pearson and a jury the appellant was convicted on count 1 of causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861. Before the trial began he had pleaded guilty to count 2, the lesser alternative of inflicting grievous bodily harm, contrary to section 20 of the 1861 Act. The only issue for the jury, therefore, was whether he intended to cause grievous bodily harm. On 15 October 2012 he was sentenced to three years' imprisonment on the section 18 offence. The period of 49 days spent in custody on remand was ordered to count towards the sentence.
2. There was a co-accused (the appellant's younger brother) who was also convicted on count 1 of causing grievous bodily harm with intent. He also pleaded guilty to count 3, which charged assault by beating. He was sentenced to three months' imprisonment on the first count and to a consecutive term of two months' imprisonment on count 3.
3. The appellant now appeals against conviction by leave of the single judge.
4. The facts, briefly, are as follows. In the early hours of 23 October 2011 there was an altercation outside a snooker club in Stubbington, Hampshire. The appellant, his younger brother (the co-accused) and his younger brother's partner had been drinking at the club. The complainant was outside the club when he was approached by the co-accused who asked for a cigarette. The complainant refused to give him one. The co-accused prodded him in the chest and walked away. The appellant was sitting nearby. The co-accused then returned and together with the appellant launched an attack upon the complainant who was dragged across the ground and punched and kicked to the head and body.
5. The complainant was not sure who had attacked him, but two independent witnesses saw the incident from the motor car. Although their evidence conflicted in some of the detail, both were adamant that the appellant had kicked the complainant when he was on the ground. The two independent witnesses pulled the two assailants off the complainant and called the police.
6. The co-accused's partner also gave evidence. She said that the appellant had kicked the complainant to the head, but that she did not see her partner kick him.
7. The appellant's case was lack of intent to cause grievous bodily harm. He said he was fairly drunk when he left the snooker club. He saw the complainant and his brother fighting, so he went to his brother's aid. The complainant threw a punch at him, and he retaliated and threw three hard punches. He accepted that in the circumstances this was not in reasonable defence of his brother or himself. He denied kicking or punching the complainant once he had fallen to the ground. Any kicking must have been done by his brother.
8. The co-accused's case was self-defence and defence of his brother. He said that the complainant had said to him, "If your brother doesn't fucking leave, I'll kick his fucking head in", and moved towards him in a threatening manner. He feared for his own safety and that of his brother. His brother came over and the only force that he (the co-accused) used was to grab the complainant in order to pull him away from his brother. He then realised that his brother was punching the complainant. He fell to the ground with the complainant. He did not kick him and did not see his brother do so, although he thought that his partner had told him that the appellant had kicked the complainant on the ground.
9. Count 3, to which the co-accused pleaded guilty, involved another complainant, Joshua Webb. He was sitting outside chatting with friends when the co-accused approached him and said in a boastful way that he had just knocked somebody out. He then punched Mr Webb in a wholly unprovoked attack.
10. In substance, therefore, to some extent each brother sought to pin the blame for any kicking on the other.
11. The grounds of appeal complain of two rulings by the judge and certain passages of the summing-up. The first ruling was the refusal of an application by the appellant's counsel to cross-examine the co-accused about his previous convictions pursuant to section 101(1)(e) of the Criminal Justice Act 2003. The convictions concerned offences committed over ten years earlier when the co-accused was a youth aged about 15 or 16. There was one offence of having a bladed article, two for common assault, and one for assault occasioning actual bodily harm. The judge noted that he had already agreed that evidence about the incident which was the subject of count 3 could be adduced, but he did not think that these convictions had sufficient probative value to justify their being admitted. In his ruling the judge said:

"Those juvenile convictions of behaviour when the defendant, David Turnbull, was 15 or 16, in my view do not provide substantial probative value in relation to an important matter. They may provide very limited probative value in that they may have been, in 2001, a predisposition to violence on behalf of this defendant, but bearing in mind the nature of those convictions, the age of them, in my view they do not now provide substantial probative value in relation to that important matter -- that is to say the predisposition to violence."

The judge went on to say that there was a clear distinction between those convictions and the count 3 incident. The contention is that the judge was in error and ought to have allowed in that evidence.

12. The second ruling concerned an application by the prosecution to cross-examine the appellant on the contents of the defence statement. The statement had been filed by his previous counsel at the plea and case management hearing. In the normal way there would be no conceivable objection to cross-examination on a defence statement where it arguably conflicts with evidence subsequently given at trial. But the circumstances here were somewhat unusual. The judge (the same judge as presided over the trial) insisted that the plea and case management hearing could not go ahead without a defence case statement. At that time both co-accused were represented by the same solicitor and counsel (the same counsel who represented the co-accused at trial). A handwritten defence case statement was produced for the appellant in which he said that he was "at all times acting in defence of his brother and in self-defence". It was, however, pointed out in the statement that counsel who had drafted it considered that separate representation was needed, and the appellant reserved the right to amend the statement if necessary.
13. At trial the appellant pleaded guilty to an offence under section 20. Mr Lamb, for the prosecution, argued that this was in conflict with the terms of the defence statement since the appellant was no longer claiming self-defence or defence of his brother and that he wished to explore this in cross-examination and draw the jury's attention to it. Mr Scott, for the appellant, submitted that it would be unfair to allow cross-examination given the unsatisfactory circumstances in which the defence case statement had been produced.
14. The judge ruled that cross-examination should be permitted. The defence case statement would have been lodged on instructions and would have reflected the account which the appellant wished to give.
15. Mr Scott had submitted that, in fact, there was no real difference between the original statement and the plea. In layman's terms the appellant had acted in self-defence or defence of another, albeit that he had used disproportionate force on his own admission, and therefore he could not rely upon that as a defence as a matter of law. However, the appellant claimed that it was unfair to infer that the statement intended to claim that he had acted in reasonable self-defence. The judge considered that such an issue of construction was a matter to be left to the jury.
16. The other two grounds of appeal relate to the summing-up. First, it is submitted that even if the judge was right to permit cross-examination on the original defence case statement, nonetheless by the time it came for him to sum up to the jury, the judge ought to have told them to pay no regard to it and to ignore it entirely. An important factor relied on by the appellant is that, after closing speeches but before the summing-up, Mr Abbott (counsel for the co-accused, and who had acted for the appellant at the plea and case management hearing) told the judge that he had not advised the appellant about the need for self-defence to be reasonable if it were to be a defence in law. It was submitted that this strongly reinforced the view that it would be unjust to allow the jury to draw any adverse inference from any potential conflict between the defence statement and the subsequent evidence as reflected in the guilty plea, and that the judge should therefore have told the jury in unambiguous terms that they should not draw such adverse inference. It is right, however, that counsel did not in terms ask the judge to do what he now says should have been done. He asked the judge to treat the issue with considerable caution when dealing with it in his summing-up.
17. The judge did not tell the jury that they should ignore the defence statement. Rather he reminded them of the circumstances in which the statement had been given. He told the jury that the appellant could have pleaded to section 20 at the plea and case management hearing, but chose not to do so. He said that the jury would need to consider whether the appellant had faced up to his responsibilities at that time, or whether the situation was that he proposed to wait for fuller advice. The judge summarised the position as follows:

"If you think that it was perfectly understandable in the circumstances for him not to proffer any plea to section 20 at that time, then that would not be evidence regarding any possible reluctance to accept responsibility."

As to the potential conflict between the statement and the subsequent evidence, the judge told the jury that it was for them to decide whether there was any inconsistency between the evidence and the defence case statement. He added:

"So if you feel there is no real discrepancy, ignore this point. However, if you are sure there was a discrepancy between the defence case statement and his evidence, consider how significant it is and any explanation given for how it may have arisen. If you think that there is or may be a reasonable explanation for any discrepancy, then no doubt, members of the jury, you will take the view that that plays no significant role in your deliberations. However, if you take the view that there is no reasonable explanation and it is a significant inconsistency, you may take that into account in assessing [the appellant's] credibility or reliability in respect of his evidence on that point. To what extent if at all, therefore, you take the view there is an inconsistency and how significant any inconsistency may be is entirely a matter for you."

18. Mr Scott submits that if the judge proposed to sum up in this way, he should have done so more robustly and told the jury in terms (rather akin to a direction under section 34) that even if they were to hold the defence statement against the appellant, it was only part of the evidence and was not of itself sufficient to lead to an inference of guilt.
19. The final ground of appeal concerns the part of the summing-up when the judge dealt with the appellant's character. In that context he dealt with the significance of the fact that the appellant had pleaded guilty to the section 20 offence. He said:

"What of the matter though that he has admitted unlawful violence because of the guilty plea to count 2? As you know, his primary defence is a denial that he had any intent to cause grievous bodily harm when he acted in the way that he did. What you need to consider, members of the jury, is: does the admission, the guilty plea to count 2, show a propensity to use unlawful violence that night to the extent claimed by the Crown when the Crown say, yes, you can take that into account to show that he would use unlawful violence to the extent of intending unlawful violence. Again, members of the jury, that is a matter for you to decide. Take account, of course, of the fact that he was prepared to admit what he had done, amounting to an offence on count 2; take account of what he has said in evidence about that aspect. The guilty plea on count 2 is only part of the evidence in this case, and it is important it should not be exaggerated. It does not follow that just because he agrees he used unlawful force sufficient for an offence under section 20, count 2, that he had the requisite intent to cause really serious injury, which is the allegation in count 1. As I say, it is just part of the evidence, and you must consider it as just that; part of the evidence, and consider it in the light of all the evidence. But a guilty plea on count 2 clearly does not prove that the defendant is guilty on count 1."

Mr Scott submits that the italicised words were wrong and confusing; the central question for the jury was whether the appellant intended to inflict grievous bodily harm, and the fact that he used unlawful force was of no relevance to that question. The use of unlawful force may be some evidence of an intention to use it is also irrelevant and unhelpful. Nor is it correct to say that the Crown had advanced any such argument.

20. Mr Scott submits that in the light of all these factors, but in particular the way in which the defence case statement was dealt with by the judge, the verdict is not safe.
21. We turn to consider these issues. First, we deal with the bad character evidence, albeit that this was not the principal focus of Mr Scott's submissions. Previous convictions are in principle admissible under section 101(1)(e) which provides:

"In criminal proceedings evidence of the defendant's bad character is admissible if, but only if --

....

(e) it has substantial probative value in relation to an important matter in issue between the defendant and the co-defendant."

An "important matter" is defined in section 112 as:

"a matter of substantial importance in the context of the case as a whole."

A feature of this provision is that, once the evidence is found to have substantive probative value in relation to an important matter, there is no residual discretion to exclude it.

22. The judge accepted that the evidence related to an important matter in issue between the co-defendants. The only issue for him was whether it had substantial probative value.
23. The meaning of that term in this context has been considered in a number of authorities. The most recent discussion is in R v Phillips [2012] Crim LR 460 where, in giving the judgment of the court, Pitchford LJ said:

"39. We conclude that the term 'substantial probative value' must mean that the evidence has an enhanced capability of proving or disproving a matter in issue. While preferring not to find terms synonymous with the statutory language, Hughes LJ in Braithwaite, [2010] EWCA Crim 1082, at [15], pointed out that what needs to be borne in mind is the distinction between simple relevance and substantial value ...."

Pitchford LJ referred to the fact that there are cases which have suggested that "substantial" means simply "more than trivial", but rejected that construction and he continued:

"40. The term 'more than trivial probative value' is, in our view, capable of being misleading and we note that in neither Lawson nor Braithwaite did the court attempt to improve on the statutory language. If by the term evidence of 'trivial' probative value is meant evidence which is barely probative, we think the term 'substantial' may be deprived of its intended statutory meaning as requiring evidence which is more than merely probative/relevant. We do not doubt that the court in both S [2009] EWCA Crim 2457, and Apabhai [2011] EWCA Crim 917, had no intention of diluting the statutory threshold. It is important, in our view, that the threshold for admissibility is not understated."

He went on to emphasise, again in agreement with certain observations of Hughes LJ in Braithwaite, that the question whether evidence is of substantial probative value is a highly fact-sensitive question and may depend on what other evidence has been admitted which goes to the same issue. He said:

"44. The judge is, as we have said, required to evaluate the capacity of the evidence to establish the relevant propensity. Where there is already before the jury evidence which has the same probative effect, the judge is entitled to assess whether further evidence has substantial probative value in relation to the same issue. A judgment may be required as to whether, in the light of 'more probative evidence already before the jury' (per Hughes LJ at [43] above), the further disputed evidence has substantial probative force. Mr Carter-Stephenson argued that any evidence which is capable of proving the relevant propensity is admissible provided that it possesses the quality of substantial probative value, whether or not there exists other evidence in the case whose value is to the same effect. In our view, Mr Carter-Stephenson's argument begs the question whether evidence is substantially probative of the matter in issue between the defendants."

24. No doubt when applying this test whether the evidence already before the jury has the same probative effect, the judge will need to bear in mind whether or not that evidence is disputed. If it is, and there is a risk that the jury may not accept that it constitutes evidence of bad character, then the judge may be depriving a co-accused of potentially substantial probative evidence if he relies on that evidence in order to exclude other bad character evidence in the event that the jury are not sure that it does demonstrate bad character. This is not a problem, however, where the evidence admitted takes the form of convictions.
25. In our judgment the judge's refusal to allow in this evidence was entirely in accordance with the principles we have enunciated. First, these old convictions were relevant, but the judge was plainly entitled to conclude that they were not of substantial probative value given the age of the co-accused at the time. Moreover, that conclusion was reinforced by the fact that the judge was allowing the appellant to cross-examine the co-accused on the other incident of violence perpetrated on the very same evening and to which the co-accused had pleaded. This, as Mr Scott has conceded this morning, was of far greater probative value and substantially dwarfed any relevance of the juvenile convictions.
26. We would add that in any event this evidence is of very limited, if any, significance. It is of course potentially relevant to the question whether the co-accused might have attacked and kicked the complainant, but it does not directly help at all with respect to the question whether the appellant kicked him. It would only be material it seems to us if the jury were sure that someone kicked the complainant but they were not sure which of the defendants had done so. That was an unlikely scenario on the evidence. The subsequent verdicts of the jury show that this is not how they perceived matters. For these reasons we reject this ground of appeal.
27. We turn to the second ground, which concerns the decision of the judge to allow cross-examination of the appellant on the defence statement. This was an unusual case because of the particular circumstances in which the statement was made. We do not, however, think it was unfair for the judge to allow cross-examination. The statement, as the judge said, would have been drafted on instructions and can fairly be said to have represented the account of events which the appellant wished to give at the time. It was perfectly reasonable for the judge to allow cross-examination, to see what the appellant himself had to say about the terms of the statement, what he intended by it, and what he understood he was accepting at the time that he made it. Moreover, it is pertinent to note that at that stage the judge did not know in any event that counsel had not advised the appellant as to the need for any force to be reasonable if it is to constitute in law a valid defence of self-defence or defence of another.
28. The third, related ground raises the question whether, given that the judge had by then been informed that counsel had not given that advice, in his summing-up he should have told the jury to ignore the statement and to draw no adverse inferences from it. We are minded to think that in all the circumstances that would have been the more satisfactory way of dealing with this difficult situation. There was a real question whether the defence case statement was in conflict with the subsequent evidence as reflected in plea to the section 20 offence, and we think that it would have been better had that matter been resolved at that stage in favour of the appellant.
29. The judge did not take that line. Instead, he explained to the jury the circumstances in which the statement had been made. He explained the potential ambiguity to them, directed them that it was the defence case that there was no real conflict, and he left it to the jury to reach their view about the meaning and potential significance of the statement.
30. We consider that that was an understandable and acceptable way to deal with this situation. The jury were informed of all the relevant facts, save that they were not told that counsel had failed to advise the appellant precisely what amounted to self-defence in law. But, in truth, it was the failure to do that which permitted the appellant to assert that the defence case statement was ambiguous and that he had intended to say that when he used self-defence he was not thereby suggesting that he had used reasonable force. The judge left it to the jury to make what they could of all the circumstances. We do not think that that constituted a material unfairness. It may be that the judge could have gone further and said in terms that, even if they were to find any inconsistency, it should only be one part of the evidence and was not conclusive against the appellant; but we do not think that that was necessary. Indeed, in the passage we have recounted the judge directed the jury that they may take that evidence into account when assessing the appellant's credibility or reliability. We do not think that the jury would infer from that that it would be legitimate to convict the appellant on that material alone.
31. We turn to the final ground of appeal which relates to the judge's observations to the effect that the plea to the section 20 offence was in some way evidence of an intention to use unlawful violence. We accept that that was misleading and confusing; but it was of no relevance to the only question before the jury, namely whether the appellant intended to cause really serious harm, which is different from an intention to use unlawful violence. However, reading the direction as a whole, it was not in our view materially unfair. Later in that same paragraph the judge said that the fact that the appellant had pleaded guilty to section 20 did not mean that he had the requisite intent to cause really serious injury necessary for section 18. Later in his summing-up he directed the jury fairly and correctly on the elements of the section 18 offence. We do not think that this confusing observation would, in the context of the summing-up as a whole, have misled the jury.
32. We should add that, in any event, had we thought that there was some relevant and potentially material misdirection, we would not have been prepared to conclude that the verdict was unsafe. The evidence that the appellant intended to cause really serious harm was very strong indeed. There was, as we have mentioned, the independent evidence from two witnesses who were quite categorical that each of the accused had kicked the complainant when he was on the ground. The co-accused's partner gave evidence to the same effect with respect to the appellant, although she was not a wholly independent witness.
33. Manifestly such an attack is only consistent with an inference that there was an intention to cause really serious harm. there was also the fact that the appellant at various stages gave different accounts of what had occurred. When arrested and under caution he began to cry and said, amongst other things, "I can't believe what I've done", which does not sit happily with his subsequent case that he simply overreacted in self-defence or defence or another. It suggests a much more serious attack. He later sought to explain that statement by saying that he was trying to protect his brother. But in the light of his evidence at court, the jury would no doubt have taken a somewhat sceptical view about that.
34. For these various reasons, we dismiss the appeal.
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