England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
CROWN COURT IN SHEFFIELD
MR JUSTICE TEARE

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/07/2014

Lord Justice Pitchford :

Introduction

1. This is an appeal against conviction brought with the leave of the single judge. On 24 June 2013 following a trial at Sheffield Crown Court before Teare J the appellant was convicted of the murder of his partner, Dimitrina Borisova. He was sentenced to imprisonment for life and the period specified under section 269 (2) of the Criminal Justice Act 2003 was 28 years.

The grounds of appeal

2. The appellant admitted that he was responsible for the death of Ms Borisova by stabbing her 17 times in a street in Gleadless, Sheffield, on 21 February 2013. His defence at trial was loss of control within the meaning of section 54 of the Coroners and Justice Act 2009. Had the prosecution failed to disprove the defence the appellant would have been convicted of manslaughter. The appellant relies upon two grounds of appeal:

(1) The trial judge wrongly admitted evidence of the appellant's previous convictions;

(2) The convictions were not susceptible to proof under section 73 of the Police and Criminal Evidence Act 1984.

In consequence, it is submitted that the verdict of the jury was unsafe. Important evidence was given at trial by the appellant's 10 year old daughter to whom we shall refer as F. We continue the order made in the Crown Court pursuant to section 39 of the Children and Young Persons Act 1933 that the Court prohibits the publication of any form of media publication of the name, address or school or any particulars calculated to lead to the identification of F and further prohibits the publication of any picture of her.

Evidence at trial

3. Both the appellant and Ms Borisova are Bulgarian nationals, although the appellant is of Turkish ethnicity. They met in Newport, in South Wales in April 2010. Later they moved together to Derbyshire and were joined by the appellant's daughter, F. Their son, I, was born in December 2010. In November 2012, Ms Borisova's mother also joined the family by which time they had moved to an address in Sheffield. On 10 December, Ms Borisova left the appellant and went to a refuge. Two days later she was granted a non-molestation injunction. On 18 December a consent order was made in the County Court granting contact between I and his mother. On 2 January 2013 the order was continued by agreement. At a hearing on 20 February it was ordered that on the following day the appellant's mother should bring I to a public meeting place where he would be handed to Ms Borisova. It was a condition of the arrangement that the appellant should not be present.
4. F gave evidence by means of a recorded interview and live video link. She said that, when the appellant returned home from the County Court on the evening of 20 February, he told her that he was going to kill Ms Borisova. F and her brother would be adopted and her paternal grandmother would return to Turkey. He, the appellant, would be going to prison. He had packed a suitcase in preparation (see paragraph 5 below). The appellant had been drinking and had made threats before but this time, F said, she thought he might do it. The next morning F saw the appellant wrapping a knife with newspaper in the form of a sheath and placing it in his belt. The appellant, his mother, F and I, in his pram, made their way to the agreed meeting point. When the appellant saw Ms Borisova at the bus stop he advanced towards her. F momentarily closed her eyes. Ms Borisova screamed and ran away but she fell and the appellant stabbed her repeatedly with the knife. When F and her grandmother arrived home the appellant was wiping blood from the floor in the kitchen. F's account of the killing was supported by a number of independent witnesses. The preponderance of the evidence was that following a few words passing between Ms Borisova and the appellant, the appellant attacked her with a knife. Onlookers described the appellant variously as being calm or emotionless during and after the event, although one witness described his attack on the deceased as frenzied.
5. At 12.39 pm the appellant flagged down a police officer in Leighton Road, Sheffield. The appellant said, "I did it. I killed my wife". When the appellant's property was removed from him the police found a rolled up newspaper in the waistband of his underpants. He told the police that he had used it to wrap the knife. He observed that he had done wrong to his baby son because he had killed the boy's mother. He was "very, very sorry" for what he had done. There was scientific evidence to the effect that the appellant had taken alcohol but the exact quantity was difficult to estimate. The scientist thought that he had consumed about twice the legal limit for driving. Found at the appellant's home was his packed suitcase.

Application to admit bad character evidence under section 101(1)(d) Criminal Justice Act 2003

6. It was agreed between the prosecution and the defence that the deceased's affidavits and witness statements in the County Court family proceedings should be admitted in evidence. It was the prosecution's purpose to establish that the death of the deceased was the culmination of a violent course of conduct by the appellant towards her. It was the appellant's case that one of the triggers for his loss of control was the discovery of the lies told by the deceased to the County Court in her evidence. The prosecution, in addition, sought to adduce evidence of the appellant's behaviour towards his former wife in Bulgaria during the years 2000 to 2008 and his convictions in Bulgaria for offences of violence. The evidence was relevant, Mr Reeds QC submitted, to the issue as to whether the appellant stabbed the deceased having lost his self-control or had killed her as an act of revenge.
7. The prosecution sought to prove the appellant's convictions in Bulgaria by the production of a certificated copy of the proceedings in the district court for the city of Shumen on 12 February 1991. The certificate establishes that the court (whose chairman, members and single 'juror' are identified) that:

i) On 16 April 1990 the appellant was "guilty of an attempt to intentionally murder Krasimir Zdravkov Sirakov" (sentence 12 years imprisonment);

ii) On 6 April 1990 the appellant "had taken a golden chain and a golden medallion … from Nevyana Svetlinova Emilova … using force with the intention to unlawfully take it" (sentence 2 years 6 months imprisonment);

iii) On 4 My 1990 the appellant raped Neli Haralanova Haralanova, a person under the age of 16 years, causing her medium bodily harm, that is "lasting difficulties in the movement of the left arm" (7 years imprisonment).

The certificate records that the defendant had pleaded guilty at the preliminary investigation to the charges of robbery and rape but before the court he did not plead guilty to any of the charges. The certificate proceeds to set out the evidence accepted by the court in finding him guilty of all three charges. It does not refer to any evidence from the defendant.

8. The judge accepted that the appellant's previous behaviour, if proved, established a propensity for violence, including violence towards women. However, the appellant was not in his present trial denying his responsibility for the death of Ms Borisova. The issue was a narrow one, namely whether the prosecution could disprove the defence of loss of control. The admission of the evidence would have the effect of diverting the jury's attention from the legal and factual issues in the case. The judge noted that the appellant had raised in argument the fairness of the proceedings that had resulted in his convictions. The appellant claimed that no oral evidence was adduced during the hearing. The hearing was completed in one day. He suggested that the verdicts in Bulgaria were biased against a man of Turkish ethnicity. The risk of satellite issues satisfied the judge that the convictions should not be admitted under 'gateway (d)'. As to the allegations of violence towards the appellant's former wife, the judge concluded that the incidents on which the prosecution relied were of some antiquity and the absence of supporting contemporaneous evidence or records made it difficult for the appellant, for the first time, to defend himself. Accordingly, the judge refused the prosecution's application.

Application to admit bad character evidence under section 101(1)(g) Criminal Justice Act 2003

9. There the matter was left until the appellant had completed his evidence in chief. The thrust of the appellant's evidence was to compare the deceased unfavourably with himself. In the course of his evidence he made the following claims:

i) The appellant said that Ms Borisova had been a prostitute when they had first met. However, she had declined his offer of money and said that she wanted to be saved from the life she was leading. A relationship between them commenced and, in effect, the appellant claimed that he had saved her from her life of prostitution. There was no other evidence about Ms Borisova's life in South Wales before she met the appellant. She was born in 1967 in Bulgaria, graduated as a machine engineer, married and had a son. She and her husband divorced in 2003. Ms Borisova came to the United Kingdom in 2010 seeking work to help meet the cost of her son's university education.

ii) The appellant claimed that in about August 2012, while they were living in Sheffield with the two children, Ms Borisova hatched a plan that would enable them, fraudulently, to claim extra state benefits. She suggested to the appellant that they should pretend to argue and fight. She would then make complains to the police and, once the appellant had been removed from the house, both he and Ms Borisova would receive housing benefit and, by that means, their incomes would increase. It was the appellant's suggestion that Ms Borisova had planned the County Court proceedings in order to exclude the appellant from the house and to obtain a residence order for their child in her favour.

iii) The appellant claimed that on 10 December 2012, the day Ms Borisova left him, he found his daughter, F, crying. F told him that Ms Borisova had hit her. Ms Borisova was drinking whisky in the kitchen. Both the appellant and Ms Borisova left the house to walk to the bus stop. The appellant was going to visit a solicitor because he had been summoned for an offence of drink driving. According to the appellant, en route to the bus stop Ms Borisova admitted that she had struck his daughter and told him that F had taken part in group sexual activity in Turkey. On his return from seeing the solicitor he found Ms Borisova had packed ready to leave and threatened to make sure he went to prison.

iv) It was not disputed that on 11 December Ms Borisova sought help from Sheffield's housing department. She was told that the council could not assist with housing but she was given information about charities that might assist her. On 14 December she commenced County Court proceedings. The appellant said in evidence that the allegations she made about him in her evidence to the court were a pack of lies.

v) As to the day of the killing, the appellant said he was on his way to work. His explanation for the possession of a knife was that he intended to sharpen it at work. According to his employer he had never taken a knife to work to sharpen it on any previous occasion. Before he made his way to work he accompanied his mother and the children towards the meeting point where I was to be handed over to Ms Borisova. He claimed that when he approached Ms Borisova she told him that she had "a rich fucker" and the appellant was "a fucking bastard". The background, culminating in these taunts, caused the appellant to lose his self-control. He only remembered punching Ms Borisova. He ended up in his bedroom at home with a knife wound to his hand.

10. Ms Reeds QC made a further application to cross-examine the appellant upon his previous character. This time he relied on section 101(1)(g) of the Criminal Justice Act 2003. The appellant had made an explicit attack on the character of the deceased that went well beyond the ambit of facts on which the appellant had relied in his defence statement. In his defence statement the appellant had specified as triggers for his loss of self-control: Ms Borisova's allegedly false allegations in the County Court of violence towards her, her violence towards his daughter, F, and her distain towards him in the street, calculated to give him the impression that she had resorted to prostitution. The judge accepted that the appellant had departed from his defence statement by alleging that Ms Borisova had set out to trick him by falsely engineering his removal from the house. Secondly, he now claimed that Ms Borisova, having admitted an assault upon his 10 year old daughter, made an allegation that F had participated in group sex while living in Turkey. The judge observed that the appellant was now asserting that the deceased was the kind of person willing to make "serious and vile allegations against a 10 year old girl". He was in no doubt that the appellant had deliberately embarked upon an attack on the character of the deceased.
11. The judge reminded himself of the need to ensure that the trial was fair. Although the appellant's trial in Bulgaria had not been conducted to contemporary domestic standards, the proceedings were held in public, the appellant's guilt had to be proved beyond reasonable doubt, the appellant had been entitled to legal representation whether he instructed a lawyer or not, and the evidence upon which the court convicted him was contained in the certificate. The judge concluded that the jury should be made aware of the character of the man making the attack upon the deceased's character. To preserve the fairness of the proceedings the jury would be given no details of the facts of the convictions, the offence of rape would not be referred to and the jury would be given directions as to the strictly limited use that could be made of the evidence. The judge recognised the problem of satellite issues that he had identified when refusing the earlier application and, later, he approved the terms of a formal admission by the prosecution as to the state of the Bulgarian criminal justice system in 1991. The judge concluded that there was a risk of "grotesque unfairness" to the prosecution if the appellant was allowed to present such a black portrait of the deceased while there was concealed from the jury the character of the man making the attack. He permitted Mr Reeds QC to adduce evidence of the appellant's previous convictions during cross-examination of the appellant, but within a strictly limited scope. The appellant admitted that in 1991 in Bulgaria he had been convicted of attempted murder, robbery and violence to a female. He was released from his sentence of imprisonment in 2000. He denied that he was guilty of those offences but in re-examination he gave an explanation only in respect of the conviction for attempted murder. He said that he had been attacked by three Bulgarian men who had taken exception to his use of the Turkish language. The appellant said that he had acted in self-defence. The court proceedings had lasted less than one day and no oral evidence had been received. The appellant said that he had not received a fair trial.
12. We were informed by Mr Cox QC that submissions to the judge made during the first application to admit bad character evidence (as to the unsatisfactory state of the Bulgarian criminal justice system) relied on information obtained from the internet, in particular a country report on human rights practices published by the United States Department of State and dated February 1990. The defence sought a short adjournment to enable them to obtain expert evidence in support of the appellant's assertion that he had not received a fair trial in Bulgaria. During the course of the weekend and on Monday of the following week enquiries were made of an academic expert in international commercial law who was able to provide the defence with some information of relevance to the issue. As a result counsel reached agreement as to the terms of a formal admission which should be placed before the jury. It read:

"(1) In Bulgaria during the 1980s under communist rule there was widespread and severe restrictions on, discrimination against, and mistreatment of the Turkish minority under a policy of forced assimilation. This policy officially came to an end in December 1989, after the communists were removed from power, but mistreatment of, and discrimination against, the Turkish minority was continuing at the time of the defendant's convictions.

(2) There is no indication in the available records to suggest that the defendant was represented or that witnesses gave live evidence (including the court record of proceedings called "the verdict"). The expert would have expected some indication if the defendant was represented or live witnesses had given evidence.

(3) At the time of the convictions the system of criminal law and procedure was the Penal Code issued under the communist regime. The rules provided some basic protections such as the presumption of innocence and the requirement that the prosecution prove the case. However, there are official reports that under the communist system there were widespread abuses of the rules and widespread corruption.

(4) The court "verdict" contains the following: "the defendant pleaded guilty at the preliminary investigation for the accusations to an offence of robbery and an offence of violence against a woman. He pleaded not guilty to attempted murder claiming that he had committed the act in unavoidable defence"."

13. Mr Cox QC did not, in consequence of this additional information, seek the discharge of the jury or any direction from the judge to the effect that it would be unsafe to rely upon one or more of the convictions. In his directions to the jury the judge said [page 32C]:

"It is important that you should understand why you have heard that evidence of his previous convictions. You have heard it because the defendant in his evidence said several things about Dimitrina which, if they are or may be true, may cause you to doubt whether you could rely upon her affidavits and statements of truth. In those circumstances it is only fair that you know about the defendant's character insofar as it is revealed by his convictions. That is the only reason that you have been told of these convictions. That knowledge may mean that it is more likely that the allegations he has made against Dimitrina are false than if they were made by a person of good character. A person with a bad character may be less likely to tell the truth but it does not follow that he is incapable of doing so. It is a matter for you to judge. Of course, if, having considered the defendant's evidence about his trial in Bulgaria, supported by the matters read to you this morning with regard to the position in Bulgaria in 1991, you consider that he may not have committed the offences of which he was convicted, either because he may have had a good defence to the charge of attempted murder or because the trial process was not fair, then you will of course disregard his convictions in Bulgaria, and in any case you must not treat his convictions as evidence that he is likely to have committed the offence of murder for which he is on trial in this court. They are not evidence of that at all and you have only been told about his convictions for a limited and defined purpose, namely to enable you to decide whether you believe what he has said about Dimitrina's character."

Discussion

14. It is convenient first to consider the contention that the appellant's convictions in Bulgaria could not be proved by a certificate produced pursuant to section 73 of the Police and Criminal Evidence Act 1984 (as amended by the Coroners and Justice Act 2009). Section 73(1) provides in its material parts:

"73(1) Where in any proceedings the fact that a person has in the United Kingdom or any other member state been convicted … of an offence … is admissible in evidence, it may be proved by producing a certificate of conviction … relating to that offence, and proving that the person named in the certificate as having been convicted … of the offence is the person whose conviction … is to be proved."

Subsections (2) and (3) define the requirements of the 'certificate of conviction'. The prosecution produced copies of the certificate of conviction whose authenticity was proved by the stamp of the Shumen district court. However, Mr Cox QC pointed out that the certificate related to convictions that took place during a period of time before Bulgaria's accession to the Treaty of the European Union. He submits that there should be read into section 73 a requirement that the conviction should have taken place while Bulgaria was a member state, namely in and after 2006.

15. The amended provisions of section 73 apply to trials and hearings that take place in England and Wales after the commencement of section 73(1) of the Coroners and Justice Act 2009 which, by Commencement Order no 5 2010 (SI 2010 No 1858), was 15 August 2010. The amendment took place in order to bring domestic law into compliance with Council Framework Decision 2008/675/JHA of 24 July 2008. The preamble to the Framework Decision makes clear its objective to ensure that a conviction in one member state should enjoy the same status in another member state as a conviction under the domestic law of that other member state. Article 3.1 of the Framework Decision provides:

"1. Each member state shall ensure that in the course or criminal proceedings against a person, previous convictions handed down against the same person for different facts in other member states, in respect of which information has been obtained under applicable instruments in mutual legal assistance or on the exchange of information extracted from criminal records, are taken into account to the extent previous national convictions are taken into account, and that equivalent legal effects are attached to them as to previous national convictions, in accordance with national law."

Mr Cox QC points out that Article 1.2 of the Framework Decision provides that it shall not have the effect of amending the obligation to respect the fundamental rights and fundamental legal principles enshrined in Article 6 of the Treaty. Article 6.2 of the Treaty provides that the Union shall respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed on 4 November 1950. His argument is that in order to bring domestic law into compliance with the Framework Decision it is necessary to construe section 73, pursuant to section 3 of the Human Rights Act 1998, consistently with the United Kingdom's obligations. Accordingly, section 73 should be held not to apply to any conviction that took place under a regime which failed to guarantee a fair trial by the standards of Article 6 of the ECHR.

16. In our judgment, Mr Cox QC's argument is misconceived. We emphasise the importance of distinguishing between (i) proof of a conviction and (ii) the admission in evidence of that conviction in criminal proceedings in the United Kingdom. There was no issue between the prosecution and the defence that the appellant had been convicted as the certificate stated. His argument was that the evidence of his conviction should not be received having regard to the unfairness of the proceedings in which the conviction had taken place. There are, it seems to us, two ways in which courts in England and Wales will ensure that the treatment of a conviction in a member state will be the same as the treatment of a conviction by a national court. First, by section 74(2) proof of the conviction will constitute a rebuttable presumption that the offence was committed "unless the contrary is proved". Accordingly, whether the conviction was by a national court or the court of a member state, it will be open to the defendant to challenge the correctness of the conviction. Secondly, if there is evidence that the conviction was the result of a trial which failed to reach appropriate standards of fairness, it would be open to the court to decline to admit the evidence in the exercise of its discretion, either under section 101(3) of the Criminal Justice Act 2003 (as in the present circumstances) or pursuant to section 78 of the Police and Criminal Evidence Act 1984. There is, we consider, no occasion to qualify the express terms of section 73 in order to ensure compliance with the Framework Decision because the law of England and Wales is already compliant.
17. A question arose during the course of argument whether, in any event, the convictions would have been admissible under section 7 of the Evidence Act 1851. In Kordasinski [2006] EWCA Crim 2984 this court held that convictions in Poland could be proved by relying upon the terms of section 7 of the 1851 Act notwithstanding that section 73, before its amendment to include member states, did not apply. The question whether the conviction should be admitted in evidence under section 101(1)(d) and section 101(1)(g) was an entirely separate issue. There is some doubt whether the certificate proving the Bulgarian convictions complied with the requirements of section 7, but in the light of our decision as to the application of section 73, as amended, it is unnecessary to resolve the issue.
18. We turn to the exercise of the judge's discretion under section 101(3) of the 2003 Act. The fact that the judge had on an earlier occasion declined to admit the bad character evidence under gateway (d) was not, of itself, a reason for reaching the same decision upon an application under gateway (g). In Edwards [2005] EWCA Crim 1813, [2006] 1 Cr App 3 at paragraphs 13 and 14 (Rose LJ, Vice President, Holland and Richards JJ) the court confirmed that the fairness of the proceedings was to be assessed at the time at which the application was made and by reference to the gateway under which admissibility was sought. In that case an unsuccessful application had also been made under gateway (d). There followed an attack on the character of prosecution witnesses. The court approved the conclusion of the Recorder that there was a change of circumstances that had changed the exercise of discretion, namely a sustained attack upon the character of the police which required the jury to be aware of the character of the man making the allegations. If the jury did not hear of his previous convictions they might be seriously misled. In the present case the judge saw and heard the appellant give his evidence in chief. His judgment was, for the reasons he gave, that the appellant had deliberately departed to a significant extent from the ambit of the defence originally notified to the court and the prosecution. The effect was to produce a wholesale attack upon the character of the deceased. In our judgment the gateway to admissibility was established under these changed circumstances and no oral submission was made to the contrary by Mr Cox QC in the course of argument. Nonetheless, we accept that factors affecting the fairness of admitting the bad character evidence will often survive the opening of a new gateway and remain relevant to the exercise of discretion under section 101(3). In our view this is such a case.
19. If the appellant's convictions in Bulgaria constituted reliable evidence of the appellant's guilt, then, in our judgment, it was appropriate to admit it in order to ensure the fairness of the proceedings both to the prosecution and the defence. In writing, it was submitted that the convictions had little value since they did not demonstrate any tendency in the appellant to tell lies: they were offences of violence. There is, however, no requirement that the evidence of the defendant's bad character, to be admitted under gateway (g), should reach any particular probative value or that the creditworthiness of the defendant should be an issue of substantial importance in the case, or that the conviction should demonstrate any propensity for untruthfulness (compare in this respect section 100(1)(b), section 101(1)(e) and section 103(1)(b) of the Act). These are factors that are relevant to the fairness of the proceedings but the principal purpose of the section 101(1)(g) gateway is to provide the jury with information relevant to the question whether the defendant's attack on another person's character is worthy of belief. The issue is one of general credibility (see for example George [2006] EWCA Crim 1652, Lamaletie [2008] EWCA Crim 314 and Singh [2007] EWCA Crim 2140 at para 10) and not propensity to falsehood. The judge was entitled to conclude that the appellant's previous convictions were relevant to the credibility to his attack upon the deceased's character.
20. Thirdly, the appellant argues that the learned judge should have declined to admit the evidence of his convictions since the jury could not have confidence in the fairness of the trial and the propriety of the convictions; nor could they be provided with the evidence necessary to resolve those questions. In our view, this submission has some force. The judge was not assisted by having the evidence presented to him on two separate occasions. On the second occasion it was too late to reverse his ruling since the evidence had already been given in cross-examination of the appellant. The evidence fell between two stools. The jury was informed of the offences of which the appellant had been convicted only in bare generality. In order to avoid the risk of prejudice the appellant had not embarked upon a detailed explanation of his defence to each of the charges. On the other hand, the jury was provided with sufficient information to cast serious doubt upon the fairness of the proceedings in Bulgaria. They were not provided with the tools necessary to reach a judgment whether they could rely upon the convictions as presumptive proof of the appellant's guilt of those offences. In the circumstances we consider that the convictions should not have been adduced in evidence. It is apparent, however, that the uncertainty of the position had not escaped the attention of the judge. He directed the jury that if they were in any doubt about the appellant's guilt of those offences, or the fairness of the proceedings in which he had been convicted, then they should pay no attention to them. This was a direction significantly more generous to the appellant than would conventionally be required pursuant to section 74(2) of the Police and Criminal Evidence Act 1984.

Safety of the verdict

21. We have considered whether the introduction of the Bulgarian convictions into evidence rendered the verdict of the jury unsafe. First, we are satisfied that the judge's directions eliminated the risk that the jury would treat the appellant's conviction as any evidence of propensity. Secondly, it seems to us that the judge minimised the possible impact of these convictions on the issue of his credibility by his specific reference to the need for the prosecution to prove so that the jury was sure that they were reliable. It is difficult to see, having regard to the formal admissions, how those convictions could have had a material effect upon the jury's consideration of the issue of loss of control. The prosecution case was that the attack on the deceased was by way of revenge for her previous behaviour, whether that behaviour was motivated by malice towards the appellant or protection of herself from attacks by him. The critical evidence in the case was, in our view, that of the appellant's daughter, F. Both counsel accepted this proposition. There appears no reason why F should have fabricated her evidence to the effect that the killing was planned. It was faintly suggested to the jury that while, overnight, following the killing, F was being cared by the wife of a workmate of the appellant, that lady may have put pressure upon F to give the account that she did. This is, in our view, a fanciful proposition which the jury would have taken little time to reject. F was not challenged on the essential parts of her recollection. F's account, provided almost contemporaneously with the events she described, compelling evidence that the appellant planned to kill Ms B Borisova at the meeting arranged for 21 February 2013. It seems to us that there was on the evidence no realistic conclusion for the jury other than that the killing of Dimitrina Borisova was an act of revenge. Accordingly, the verdict was safe and the appeal is dismissed.