England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		14 June 2016

1. LORD JUSTICE TREACY: 1. On 13 November 2015 in the Crown Court at Snaresbrook the appellant was convicted of assault occasioning actual bodily harm. He subsequently received a community order. He appeals against conviction with the leave of the single judge. The sole issue before the court relates to the judge's refusal of leave to the defence to adduce evidence of the complainant's bad character. Section 100 of the Criminal Justice Act 2003 is engaged.
2. The facts show that the appellant and the complainant were neighbours. The jury was aware that there had been a history of difficulty between them so that they had a bad relationship. In interview, the appellant referred to the fact that there had been problems between them, of which the local council was aware.
3. On 23 August 2014, the complainant, Mr Tyler, was working on some fencing dividing the two properties. He went into the appellant's front garden holding an electric drill in order to retrieve a drill bit which had fallen off. There was a confrontation, at the end of which he was pushed and fell face-forwards to the ground, sustaining a laceration and a black eye. The incident was captured on the appellant's CCTV which he provided to the police. The jury saw it taking place in real time and also in a slower format. We have seen that CCTV.
4. The Crown's case was that the appellant had assaulted Mr Tyler, using unlawful force to push him to the ground and causing his injuries. The appellant was not acting in self-defence and his actions were excessive. The appellant's case was that he had acted in lawful self-defence in the heat of the moment. Mr Tyler had come onto his property, threatened him with an electric drill and he was scared and shocked. He did not use more than what was reasonable force in the circumstances by pushing Mr Tyler away. He did not intend to injure him. The issue for the jury, therefore, was whether the prosecution had negatived self-defence.
5. By the time of the trial Mr Tyler had died, so that his statement was read to the jury. He was aged 75. He was smaller and frailer than the appellant, who is now aged 44. The appellant was described as thick-set and stocky, weighing about 14 stone. The complainant's victim statement referred to a poor relationship with the appellant and the fact that he had reported him to the housing officer in the past. Mr Tyler accepted that he had raised his drill towards the appellant after being confronted aggressively, as he was frightened. He said that he was then pushed violently in the back as he went to walk away. This caused him to fall and hit his face on the path.
6. In addition to his evidence, there was evidence from two neighbours. A Miss Cawdry described Mr Tyler pointing his drill at the appellant but not threatening him. At the time of the push, his back was turned and he was already leaving. He did not represent a threat. It had been a hard push. Another neighbour, Mr Ansell, said he had seen a bit of pushing, followed by the appellant grabbing the complainant and throwing him towards the ground. The force of the push was "like a rag doll, a big push". Mr Tyler had not been threatening the appellant with the drill.
7. The appellant, who was treated as a man of good character, himself gave evidence, suggesting that Mr Tyler had been abusive and had threatened him with the drill. His only intention had been to defend himself and to get Mr Tyler away from him. He had been scared and shocked and did not intend to harm Mr Tyler. All he wanted to do was defend himself.
8. Although the appellant had given a detailed account to the police, when he gave evidence he added two further matters which attracted an adverse inference direction from the judge. It will be recalled that, in addition to the evidence just described, the jury had the benefit of viewing the CCTV material, which was of good quality.
9. The defence applied to adduce evidence of Mr Tyler's bad character. The judge declined to grant leave, and the grounds of appeal assert that he was wrong to do so and that the conviction is thereby rendered unsafe.
10. Not all the matters which the defence sought to rely on before the judge are advanced before this court. Those which remain are three in number. Firstly, there is a general allegation that Mr Tyler had, over the preceding 18 months, made continual threats against the appellant and his family, including general verbal abuse. Secondly, in June 2013 Mr Tyler had threatened to smash the appellant's "shitty windows". Thirdly, in July 2013 Mr Tyler had put bricks and stakes between the two drives. The appellant had removed them. Mr Tyler had then threatened to smash the appellant's face in and raised his fist. The appellant's father had intervened, and Mr Tyler had pushed him. When he was ushered off the appellant's property, he had threatened to put a pickaxe into the back of the appellant's head. He subsequently emerged from his property with a small sledgehammer, threatening to smash the appellant's property.
11. The judge's ruling was that none of this material was important explanatory evidence under section 100(1)(a). That aspect of the ruling is not challenged. The judge also held in considering section 100(1)(b) that the evidence did not have substantial probative value in relation to the matter in issue in the proceedings; nor was it of substantial importance in the context of the case as a whole. It is this aspect of the judge's ruling which is under challenge.
12. In coming to his conclusion, the judge had relied on the decision of this court in R v Braithwaite [2010] 2 Cr App Rep 18. He described the matters relied on as allegations. One of them had been recorded in a CAD report to the police, but no further action had been taken. He said that in the context of this case, where the issue was self-defence involving a consideration of Mr Erwood's state of mind, his need to use force and the reasonableness of the force used, he did not accept that the allegations had substantial probative value. The judge said he also bore in mind the risk of satellite litigation. He observed that it would be in rare circumstances that a mere allegation would be capable of having substantial probative value. This was not such a case.
13. In his succinctly drafted grounds of appeal and equally succinct oral submissions, Mr Gill submits that the episodes referred to did have substantial probative value. He says they bore on the appellant's state of mind and in particular whether he had an honest belief that he was acting in reasonable self-defence. The core of Mr Gill's submission is that a distinction should have been drawn between this case and the facts in Braithwaite. In Braithwaite, the allegations sought to be adduced were not supported or proposed to be supported by a complainant giving evidence; they were hearsay allegations made by a third party in crime reports held by the police. In this case, the appellant could have given evidence in support of the areas of bad character relied on. The July 2013 incident had been itself supported by a CAD message. This added force to the case for admissibility.
14. We have considered the decision in Braithwaite. At paragraph 12, Hughes LJ, as he then was, having analysed section 100(1)(b), continued:

"This assessment is, by definition, highly fact-sensitive in each case. It is an assessment of whether the evidence in question substantially goes to show (prove) the point which the applicant wishes to prove on the issue in question. ... The probative value of the evidence advanced falls to be assessed in the context of the case as a whole. That means that it may in some cases be appropriate to consider whether or not it adds significantly to other more probative evidence directed to the same issue."

15. At paragraph 19, the court said:

"We emphasise that whenever a bad character application is made, the court must look at the nature of the evidence. The evidence of a live witness to the effect that a complainant in an assault case has on several previous occasions mounted an unprovoked attack on him, in circumstances very similar to those before the jury, would be a mere allegation if no conviction had ensued, perhaps because there was yet to be a trial. But we leave open the possibility that it might in some circumstances (assuming truth) be assessed as having substantial probative value. That, however, is not this case."

16. In Braithwaite, the court then went on to reject the appeal in a case where the material relied on contained CRIS reports to the police containing allegations by others which, by their nature, were hearsay. The failure of the complainant to support the allegation robbed it of much probative value, and a police or CPS decision not to pursue the allegation further reduced any probative value. Mr Gill distinguishes that situation from the present case, where this appellant would have been prepared to give evidence about the matters relied on. He submits that that should have been sufficient for leave to have been granted.
17. In our judgment, although the factual situation in Braithwaite was different, it does not avail this appellant. All of the material relied on amounted to unsubstantiated allegations or complaints about matters which had not been proven against Mr Tyler. It is clear from Braithwaite that what were described as "mere allegations" would often not be sufficient to satisfy the test under section 100(1)(b). Although the court in Braithwaite left open the possibility that such evidence as this appellant might have given could be admitted, it is clear that in the generality of cases this would not be the case. The court in Braithwaite emphasised the need for a careful, fact-sensitive assessment in any individual case. This is what the judge carried out in the present case, where the facts were within a very small compass and where the appellant himself had acknowledged when first spoken to, "He came on my property and threatened me with a drill. Admittedly I pushed him a bit too hard."
18. The jury was aware of a history of ill-feeling between the two men, and that each had made complaints about the other to the local authority. The judge was also alive to the risk that the jury would be deflected from consideration of the central issue in the case by exploration of the appellant's unsubstantiated complaints. In this context, we do not see that the appellant's case is strengthened by the fact that there was a CAD report in relation to one of the incidents. That is merely a self-reinforcing piece of material which demonstrates that an allegation had been made by the appellant.
19. It is clear to us that the judge gave careful consideration to the issue in the case, the other available evidence, the case law and the statutory test which is a more stringent one than, for example, the test under section 101(1)(d). If there is a spectrum of situations under which allegation fall to be considered under Braithwaite, we are satisfied that this case does not fall at a place requiring admission of the evidence. Moreover, having seen the CCTV, we are reinforced in that view. Its clear depiction of events shows that the evidence in question was marginal to the central issue and was not of substantial probative value. In the circumstances, therefore, we are unpersuaded that the judge's assessment and his decision shows any demonstrable error. Accordingly, the ground of appeal must fail.
20. For the sake of completeness, we record in any event our conclusion that the conviction is safe. There was a substantial case available to the Crown, with evidence from a number of sources supportive of its case. Admission of some or all of the material relied on by the defence, in amplification of what the jury already knew about bad blood between the two parties, would not have made any substantial addition to the evidence which the jury had to consider. As we have already commented, it was likely to prove to be a distraction.
21. For these reasons, the appeal against conviction is dismissed.