England and Wales Court of Appeal (Criminal Division) Decisions

Neutral Citation Number [2018] EWCA Crim 424

Case No: 201702881/C3

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Strand

London, WC2A 2LL

Date: Friday, 16 February 2018

B e f o r e: LORD JUSTICE HOLROYDE MRS JUSTICE ELISABETH LAING DBE HIS HONOUR JUDGE AUBREY QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - R E G I N A v BENJAMIN JAMES EDWARDS - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of
WordWave International Ltd trading as DTI,
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(Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mr A Langdale appeared on behalf of the Appellant Mr A Vout appeared on behalf of the Crown - - - - - - - - - - - - - - - - J U D G M E N T (Approved)
 

1. LORD JUSTICE HOLROYDE: On 30th May 2017 in the Crown Court at Nottingham this appellant was convicted of the manslaughter of Christopher Henchcliffe. He was sentenced to 5 years 6 months' imprisonment. He now appeals against his conviction by limited leave of the single judge.
2. The events which led to the death of Mr Henchcliffe occurred in the early hours of the morning of 3rd July 2016 outside a bar in the centre of Chesterfield. The appellant, then aged 21 and with no previous convictions, had been in the bar with friends including James Wisternoff.
3. The deceased Mr Henchcliffe, a tall and powerfully built man then aged 26, had been asked to leave the bar after he had thrown a drink in the direction of James Wisternoff's sister Clarissa, a member of the bar staff.
4. The street outside the bar was covered by a CCTV camera. Footage from that camera was played as part of the prosecution evidence. It was of good quality but was recorded from a fixed position and therefore inevitably did not show every detail. It was not accompanied by any soundtrack.
5. The CCTV footage showed that shortly after Mr Henchcliffe left the bar he was followed by James Wisternoff. The two men stood in the middle of the carriageway and appeared to be talking to one another. Over the next minute or two they were joined by other persons including the appellant and Clarissa Wisternoff. They were then joined by a doorman, Mr Goodwin.
6. Clarissa Wisternoff was a prosecution witness. Her evidence, which was supportive of an aspect of the appellant's case, was that Christopher Henchcliffe was drunkenly and aggressively telling her brother James that she, Clarissa, was "a lying bitch". The appellant later gave evidence to similar effect and added that he had also heard Mr Henchcliffe boasting about having military training.
7. The CCTV footage then showed that James Wisternoff threw two or three punches at Mr Henchcliffe, knocking him backwards. Mr Goodwin quickly intervened, taking hold of Mr Wisternoff in a bear hug and moving him several paces way. Mr Henchcliffe then moved swiftly towards Mr Wisternoff with his arm raised. The manner in which he did so, as clearly shown on the footage, gave rise to a very strong inference that he had an aggressive intention towards Mr Wisternoff. He did not however make any attack on Mr Wisternoff, because Mr Goodwin, effectively acting as a human barrier between the two men, pushed Mr Henchcliffe back. Mr Henchcliffe at that point ceased his movement towards Mr Wisternoff and lowered his arm. There was an issue between the prosecution and defence as to whether Mr Henchcliffe simply let his harm fall to his side or whether, as the appellant asserted, Mr Henchcliffe still had his fist clenched.
8. At that point, as the CCTV footage showed, the appellant moved towards Mr Henchcliffe and swung a punch at him. Mr Henchcliffe fell backwards and, as the pathological evidence later showed, must have struck his head as he fell, sustaining injury which sadly resulted in his death on 12th July 2016.
9. In the course of his evidence the appellant initially said that he had merely swung his arm towards Mr Henchcliffe. In cross-examination he ultimately accepted that he had thrown a punch, but said that he did not know whether it landed. As Mr Langdale realistically recognises on the appellant's behalf, it matters not, for present purposes, whether the appellant landed a heavy punch or struck a glancing blow or even missed completely: on any view it was his throwing of the punch which either knocked Mr Henchcliffe off balance or caused him to lose balance as he tried to move out of the way. The real issue was whether the jury was sure that the appellant was acting unlawfully when he threw the punch.
10. The prosecution case was that he was acting unlawfully. Whatever Mr Henchcliffe's intention towards Mr Wisternoff had been moments earlier, he had been repelled by Mr Goodwin, was not making a further attempt to get at Mr Wisternoff and did not then present any threat of violence towards Mr Wisternoff.
11. The appellant's case was that he was not acting unlawfully; that he acted as he did because he honestly believed that Mr Henchcliffe was about to strike Mr Wisternoff; that he feared for the safety of Mr Wisternoff, who was facing the other way and therefore would not see an attack coming; and that he used no more than reasonable force in seeking to defend his friend.
12. In addition to the persons we have already mentioned the jury heard eyewitness evidence from a friend of Mr Henchcliffe, who spoke of events inside the bar, and from a young woman and a second doorman who had both seen events in the street. Mr Wisternoff was not called as a witness by either prosecution or defence.
13. The CCTV footage showed that shortly after Mr Henchcliffe had gone to ground the appellant and others ran away along the street. In evidence, the appellant said that he thought he heard Mr Henchcliffe getting back up and ran because he feared for his own safety. Footage recorded by a different camera, a few minute later, was relied upon by the prosecution as appearing to show the appellant demonstrating a punch to his companions. The appellant's evidence about this was that he was telling his friends he could not believe his actions could cause Mr Henchcliffe to go to the ground.
14. There was evidence before the jury, in the form of an agreed fact, that later on the same day the appellant exchanged a series of Facebook messages with a friend in whose company he had been shortly before the incident. The exchange began with the appellant sending his friend a screen shot of a Facebook page on which Mr Henchcliffe's sister reported to her friends that her brother was in a coma. The appellant urged his friend not to tell anyone about the previous night saying: "I might be getting sent down. No, literally don't tell anyone, delete the messages". His friend enquired what had happened, to which the appellant replied: "My name's not been mentioned. No one knows who it is". The friend advised the appellant that it would be best for him to own up, to which the appellant replied: "Let's see what happens". His friend ended the exchange by repeating his advice: "Seriously though, consider owning up because mate I'll tell you these things end up catching up."
15. The appellant did not follow that advice. When arrested and questioned about what had happened he said: "Well I got told in the morning that something had happened there, I mean I was out on the town but that is about it."
16. He made a short prepared statement in which he denied causing any injury to Mr Henchcliffe, but otherwise made no comment when questioned under caution. He was shown the CCTV footage to which he responded by saying: "I don't think that was me".
17. In his evidence the appellant explained his sending of the Facebook messages, his telling of what he admitted to have been lies to the police and his failure to mention when questioned most of the matters which he relied upon in his defence at trial, by saying he had been scared, did not want to be wrongly accused of something he did not think he had done and feared that words might be put into his mouth.
18. At a convenient point towards the end of the prosecution both prosecution and defence counsel – then, as now, Mr Vout and Mr Langdale - made applications to adduce evidence of bad character. The prosecution applied to adduce evidence about two occasions in 2015 when the appellant (who, as we have said, had no convictions) had been arrested for incidents of street violence. The first arrest led to a trial before a Magistrates' Court at which the appellant admitted having punched and injured the complainant, but said that he had acted in self-defence. The magistrates found the appellant not guilty, saying that they had heard conflicting accounts of the incident from a number witnesses, all of whom had consumed a considerable amount of drink, and that the court could not be sure what had happened. The second arrest would have resulted in a prosecution had it not been for the fact that the police appear to have overlooked the statutory time limit for the commencement of proceedings on the relevant charge.
19. The judge, plainly correctly, refused the prosecution's application to adduce evidence of those incidents as evidence of a relevant propensity on the part of the appellant. He referred to the danger of introducing satellite issues and concluded that the evidence should be excluded pursuant to section 101(3) of the Criminal Justice Act 2003 because it would have an adverse effect on the fairness of the proceedings.
20. On behalf of the appellant, application was made to adduce evidence of two criminal convictions and one formal police caution of Mr Henchcliffe. In very short summary Mr Henchcliffe, at the age of 14, had committed a serious offence of causing grievous bodily harm with intent, for which, despite his youth, he was ordered to be detained for 3 years. The circumstances of the offence were that he, together with a 15-year-old boy, had carried out a serious assault on a man whom they believed to be a paedophile and who was said to have followed Mr Henchcliffe's younger brother. The second conviction was much more recent. It was for an offence of battery in early 2016, for which a community order had been imposed. The circumstances of that offence were said to be that Mr Henchcliffe, in drink, had picked a fight with an innocent member of the public in a bar and punched him a number of times. Mr Henchcliffe was subject to the community order at the time of this incident.
21. The police caution related to an offence of attempted possession of a controlled drug, which was relied upon as a basis for suggesting that Mr Henchcliffe may have been both drunk and drugged at the time of this incident. No complaint is made about the judge's refusal to admit that caution in evidence, and we need say no more about it.
22. Section 100 of the Criminal Justice Act 2003 is in the following terms:

i. "Non-defendant's bad character

(2) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if—

i. (a)it is important explanatory evidence

ii. (b)it has substantial probative value in relation to a matter which—

iii. (i)is a matter in issue in the proceedings, and

iv. (ii)is of substantial importance in the context of the case as a whole, or

v. (c)all parties to the proceedings agree to the evidence being admissible.

(3) For the purposes of subsection (1)(a) evidence is important explanatory evidence if—

i. (a)without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and

ii. (b)its value for understanding the case as a whole is substantial.

(4) In assessing the probative value of evidence for the purposes of subsection (1)(b) the court must have regard to the following factors (and to any others it considers relevant)—

i. (a)the nature and number of the events, or other things, to which the evidence relates;

ii. (b)when those events or things are alleged to have happened or existed;

iii. (c)where—

iv. (i)the evidence is evidence of a person's misconduct, and

v. (ii)it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct, the nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct;

vi. (d)where—

vii. (i)the evidence is evidence of a person's misconduct

viii. (ii)it is suggested that that person is also responsible for the misconduct charged, and

ix. (iii)the identity of the person responsible for the misconduct charged is disputed, the extent to which the evidence shows or tends to show that the same person was responsible each time.

(5) Except where subsection (1)(c) applies, evidence of the bad character of a person other than the defendant must not be given without leave of the court."

23. The application to adduce evidence of Mr Henchcliffe's previous convictions was made both on the basis that it was important explanatory evidence and on the basis that it had substantial probative value in relation to a matter in issue, namely whether the defendant acted in reasonable self-defence, and was of substantial importance in the context of the case as a whole.
24. We can deal briefly with the suggestion that the judge should have admitted the evidence of Mr Henchcliffe's previous convictions for violence as important explanatory evidence under section 100(1)(a). In our judgment, this submission - not today pursued actively but not formally abandoned at the outset - was and is wholly without merit. It is quite impossible to say, as section 100(2) requires, that without that evidence the jury would have found it impossible or difficult properly to understand other evidence in the case. Nor can it possibly be said that the value of the evidence of the previous convictions for understanding the case as a whole was substantial. The evidence and issues in the case were perfectly straightforward and the jury were well able to assess them. The jury neither needed nor would have gained any further "explanation" by reference to Mr Henchcliffe's previous convictions.
25. The application based on section 100(1)(b) requires more detailed analysis. The submission was that the issue in the trial was self-defence, that there were limits to the assistance as to details which the jury could derive from the CCTV footage, and that there were differences between the eyewitnesses as to whether Mr Henchcliffe was acting aggressively at the time when the appellant threw a punch at him. Mr Langdale argued that in those circumstances the evidence of previous convictions supported the defence contention that Mr Henchcliffe remained the aggressor throughout and was at the material time still trying to attack the appellant's friend. In that way, it was argued, the evidence of previous convictions went directly to the issue of how the appellant was likely to have perceived that there was a danger to his friend.
26. Although not spelled out in detail, it seems to us that the defence submission was in essence an argument that the previous convictions were capable of being regarded by the jury as evidence of a propensity on Mr Henchcliffe's part to commit crimes of violence and that such propensity made it more likely that on this occasion he was continuing to act aggressively as the appellant said he was.
27. The learned judge in his ruling on this application pointed out that the appellant had no previous knowledge of Mr Henchcliffe or of his convictions, and therefore was not influenced in his own actions by any such knowledge. As the judge put it, the appellant "simply had to judge the deceased from what he saw and heard from him on that night". What the appellant saw was largely captured on CCTV footage. What he heard had been the subject of evidence by prosecution witnesses and would have to be assessed by the jury.
28. The learned judge noted Mr Langdale's submission that the jury would be able to use the previous convictions of Mr Henchcliffe to determine whether or not Mr Henchcliffe had said those things on which the defence relied. At page 7F of his ruling the learned judge then said this:

i. "Mr Langdale says that they will have a substantial effect. That is not the law but he is quite right. If the jury know that the deceased had these convictions, they may well reach the conclusion, that, in pursuing Mr Wisternoff, as he was, a) it was his intention to assault him and b) had he reached him, he would have assaulted him. That is something of course, about which there is no direct evidence, and it is something that none of us will ever know. The fact of the matter is, on the available evidence, as accepted by the doorman who placed his hand out for this purpose, having been pushed back the doorman, the deceased had stopped approaching Mr Wisternoff at the time he was struck by the defendant. Indeed, it is said by the doorman and by another witness that, at the time that the deceased was struck, his hands were no longer raised as fists but were by his side.

ii. That is the evidence. Given that the behaviour of the deceased can be seen on the CCTV footage, given, as I said, that the defendant did not know the deceased and therefore could not factor into any decision he made that the deceased had previous convictions, and would therefore behave in the way that he did, in my judgment, it would be inappropriate to admit the convictions of the deceased.

iii. Just as admitting the defendant's previous past behaviour would have given him an unfair disadvantage, in all of the circumstances of this case, admitting the convictions of the deceased, for the purpose that Mr Langdale contends for, would, in my judgment, be to give the defendant an unfair advantage. The convictions in these circumstances do not have the substantial probative value that is contended for by Mr Langdale."

29. The judge went on to refer, briefly, to the factors set out in section 100(3) of the 2003 Act, particularly noting that the more serious conviction had been 11 years ago when Mr Henchcliffe was himself a child. He concluded at page 8E:

i. "In my judgment, just as admitting the past of the defendant would have distorted the process, so the admission of past of the deceased would do similarly. However I directed the jury regarding it, the jury in my judgment, would be unduly influenced by the knowledge of the previous convictions and would overlook the fact that the defendant himself did not have knowledge of them, however carefully I direct the jury in that respect. In that sense, therefore, and for those reasons, I reject the defence submission, content in the knowledge at least that now the equities are equally in the case."

30. Mr Langdale advanced two written grounds of appeal. The first challenged the learned judge's decision not to permit the defence to adduce evidence of Mr Henchcliffe's previous convictions. The second criticised the terms in which the judge had summed up aspects of the evidence, although no criticism was or could be made of the directions of law.
31. The learned single judge who considered the application for leave refused leave on the second of those grounds. No application has been made to renew the application for leave in that respect and we need say no more about it. As to the first ground of appeal, for the reasons which we have already explained, we focus on the argument based on section 100(1)(b).
32. The written submissions on each side have been amplified today in the oral submissions of counsel. We can summarise them briefly. Mr Langdale maintains his previous submission that the evidence was admissible pursuant to the statute, and he therefore argues that the judge was wrong to exclude it. He relies on the passages which we have quoted from the learned judge's ruling, and on the terms in which the judge, towards the end of his summing-up, suggested a series of questions which the jury might wish to address, as each indicating that the judge himself recognised and accepted the probative value of Mr Henchcliffe's previous convictions. Mr Langdale further maintains his submission that the judge fell into significant error when he spoke of giving the appellant an unfair advantage and of making the equities equal by his decision on the application.
33. For the respondent, Mr Vout submits that the learned judge was clearly in full command of the relevant facts and made no error of law. He submits that the judge's decision was a proper application of the provisions of section 100 of the 2003 Act. In relation to the passages of the ruling on which Mr Langdale relies, Mr Vout submits that Mr Langdale has misunderstood them. He argues that in those passages the learned judge was distinguishing between the improper prejudicial effect, which he felt evidence of the previous convictions certainly would have, and the permissible substantial probative value, which he felt was absent from the case.
34. We have reflected on those submissions. In R v Phillips [2012] 1 Cr App R 25, a case decided under section 101(1)(e), this court equated "substantial" probative value with "an enhanced capability" of proving or disproving a matter in issue in order to emphasise the point.
35. In R v Braithwaite [2010] 2 Cr App R 18, this court said that the test of substantial probative value in section 100(1)(b) is the same as it is in 101(1)(e). At paragraph 15 of the judgment Hughes LJ (as he then was) said:

i. "[That] expression has been referred to in some quarters as importing a test of 'enhanced probative value'. We can see why, although we ourselves prefer not to rephrase the statute, remembering only that the distinction we have mentioned exists between this test and that of simple relevance."

36. At paragraph 12 of the judgment in Braithwaite, the court pointed to an important difference between section 101 and section 100. On an application under section 101(1)(d) to adduce evidence of bad character of an accused, on the ground that it is relevant to an important matter in issue between the defendant and the prosecution, the court may find the evidence to be admissible, but has a discretion under section 101(3) to exclude it because it would have an adverse effect on the fairness of the proceedings. There is however no similar discretion where evidence of the bad character of a non-accused is admissible under section 100(1)(b). If the conditions of that subsection are met there is no residual statutory discretion whereby the judge can exclude it. That is one reason why, if evidence is to be admissible under the subsection, it must have substantial probative value in relation to a matter in issue which is of substantial importance in the context of the case as a whole.
37. In considering the submission that the judge was wrong in his application of section 100(1)(b), we think it important to begin by remembering that the jury had the evidence of the CCTV footage and of a number of eyewitnesses. From the footage, the jury would plainly be able to see that Mr Henchcliffe, having himself been struck, was heading towards Mr Wisternoff in a manner which gave rise to an obvious inference of aggressive intent. They could see that Mr Goodwin pushed him away and effectively separated the two men. It was admitted that at that point the appellant threw a punch which, whether it landed or not, caused Mr Henchcliffe to fall and sustained fatal head injury. The crucial issue was whether at the time he swung that punch the jury were sure the appellant was acting unlawfully because Mr Henchcliffe, notwithstanding his evident aggressive intent moments earlier, did not then present any threat. They had to consider whether the appellant may have been acting in lawful defence of his friend, Mr Wisternoff, in the honest belief that Mr Wisternoff was about to be attacked.
38. True it is that the CCTV footage was not of such quality as to permit the jury to see, for example, precisely where Mr Henchcliffe's hands or fists were at that moment. For our part however, we find it difficult to see how evidence of Mr Henchcliffe's previous convictions could really have helped the jury to determine those issues or could have assisted the appellant's case. First, in the circumstances of this case, we doubt whether a conviction for an offence of violence when Mr Henchcliffe was aged 14, albeit a serious offence, could be said to be capable of showing a propensity to engage in street violence 11 years later as an adult. Secondly, even if both convictions might be regarded as showing such a propensity, that propensity would, at most, have been capable of making it more likely that Mr Henchcliffe acted aggressively on this occasion. But he had already clearly shown himself to be acting aggressively when he moved quickly towards Mr Wisternoff with his arm raised. The real issue is whether the appellant may have thought that he was still acting aggressively even after he had been repelled by Mr Goodwin. We do not see any merit in the submission that Mr Henchcliffe's convictions could have substantial probative value in relation to that issue.
39. We therefore take the view that the application to adduce this evidence should have been refused on the ground that the evidence could not have the necessary substantial probative value. Mr Vout submits that is exactly what the learned judge decided. Mr Langdale however submits that the judge must have taken a different view in this regard: although at one point in the ruling the judge said that the convictions did not have the substantial probative value that is contended for by Mr Langdale, he at other points indicated plainly that evidence of the previous convictions may well cause the jury to find Mr Henchcliffe was intent on assaulting Mr Wisternoff. So, submits Mr Langdale, the judge himself clearly felt that substantial probative value was established. Not so, submits Mr Vout. He argues that the judge, although he did not spell it out as fully as perhaps he should have done, was drawing the distinction between improper prejudicial effect and proper probative value.
40. If Mr Langdale's submission were correct, there would be force in the submission that the judge should have admitted the evidence under section 100(1)(b). As to why he would not have done so, if his assessment of the evidence really was as Mr Langdale submits it was, one would perhaps have to look at a possible confusion between section 100(1)(b) and section 101(1)(d) as to the existence of a judicial discretion to exclude evidence on grounds of fairness. Part of Mr Langdale's submission, of course, is that such a confusion was demonstrated by the judge's references for example to "balancing the equities".
41. It seems to us, however, that Mr Vout's submissions are correct. Although the judge, with all respect to him, did not express himself as clearly as he might have done, the key sentence in the ruling, which we have already quoted, is the assessment by the judge that "the convictions in these circumstances do not have the substantial probative value that is contended for by Mr Langdale". We accept Mr Vout's submission that, whilst it would have been better for the judge to spell out that his earlier references were to the prejudicial rather than the probative effect of the evidence, that is what he meant.
42. There is force in Mr Langdale's submission that it is unsatisfactory for this court to be invited, in effect, to read words into a judge's ruling on admissibility in order to reach a conclusion upon it. We have therefore gone on to consider, notwithstanding the view we have indicated above, whether any error on the judge's part would have rendered the appellant's conviction unsafe.
43. Even if the learned judge did fall into error in the ruling that he gave, which for the reasons we have explained he did not, that error would not in our judgment have cast any doubt on the safety of this conviction. Because we do not regard the evidence of Mr Henchcliffe's previous convictions as having any real probative value on the central issue of the case, we are firmly of the view that the admission of that evidence could not properly have made any difference to the jury's verdict. Any possible effect it might have had would only have been in respect of improper prejudice.
44. Moreover, the CCTV footage provided clear and compelling evidence against the appellant because it showed plainly that Mr Henchcliffe was not moving towards Mr Wisternoff when the appellant threw a punch at him. The appellant's conduct after the incident, which we have summarised above, positively undermined his own defence.
45. For those reasons this appeal against conviction fails and is dismissed.

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