England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		17th January 2007

1. MR JUSTICE DAVID CLARKE: In this case the Director of Public Prosecutions appeals by case stated against a decision of the Bedfordshire Justices, sitting at Bedford on 31st July of last year, acquitting the respondent on a charge of theft after a summary trial. The case stated poses the following questions for the opinion of this court:

"a. Could any bench of Justices properly directed upon the facts and upon the law have acquitted the respondent, in other words, was the decision of the Justices perverse?

b. Was the decision of the District Judge, in excluding the evidence, perverse, such that the bench of Justices should have had available to it the evidence relating to the previous bad character of the Respondent?"

2. Thus it is apparent that the attack was to be upon two decisions, one by the District Judge refusing to admit bad character evidence and, secondly, the decision of the lay Justices to acquit. The allegation against the respondent was that he and another man stole a full British Legion charity collection box from the Merton Centre in Bedford, an offence of a type sometimes known as a walk-in theft. The theft was not discovered until a British Legion collector called to pick up the box on 15th November, following the conclusion of the Remembrance Day observances the previous weekend. The box was missing but CCTV coverage of the Merton Centre shows that it had been stolen by two men, one of whom was alleged to have been the respondent. The evidence identifying him came from two police officers who knew him and who gave evidence that the man seen on the CCTV recording was he.
3. The prosecution sought to support that evidence and to strengthen the case by adducing evidence of the respondent's numerous previous convictions, principally for offences of theft, in reliance on section 101(1)(d) and 101(3) of the Criminal Justice Act 2003. At the preliminary hearing before the District Judge on 4th May, the evidence was excluded and the first point before us, which is now the one point argued by Mr Alford on behalf of the Director, is whether the District Judge was right in that decision.
4. The case stated reads as follows.

"4. The Respondent opposed admission of the convictions on the grounds that they did not reveal a propensity to commit offences of theft of the type alleged in the instant case, that is a 'walk-in-theft' involving stealing a charity box. The Respondent's list of antecedents reflected a propensity for shoplifting.

5. The Respondent also contended that the issue in the case was CCTV identification with respect to which any propensity to dishonesty would not assist the court. The issue for the Tribunal of fact would be simply whether it was sure that it was the respondent shown on the CCTV footage. Finally, the Respondent invited the District Judge to exercise his discretion under Section 101(3).

6. The Appellant informed the District Judge that the evidence against the Respondent consisted of CCTV footage from which the Respondent could be identified. In addition, a Police Officer acquainted with the Respondent had viewed the CCTV evidence and identified him. However, there was no prosecution eye witness to the theft and no VIPA procedure had therefore been held. Indeed, there was no evidence against the Respondent.

7. The Respondent's legal representative stated that the identification evidence was disputed. As to its quality, he asserted that he knew the Respondent well and had carefully viewed the CCTV footage, but was unable to identify him."

I interpose at that point to remark that this in my view was not a proper comment by the legal representative, who appeared to be giving evidence in the guise of making a submission.

"8. In ruling, the District Judge indicated he was mindful of the principles in R v Hanson, Gilmore and Pickston [2005] EWCA Crim 824 and briefly noted the questions identified by the Court of Appeal (Criminal Division) at paragraph 7 of the judgment in that case:

a. Does the history of conviction(s) establish a propensity to commit offences of the kind charged?

b. Does that propensity make it more likely that the defendant committed the offence charged?

c. Is it unjust to rely on the conviction(s) of the same description or category, and in any event, and will the proceedings be unfair if they are admitted?

9. He concluded that the convictions revealed a significant continuing history of dishonesty and established a propensity to commit offences of the kind charged. That propensity would make it more likely that the defendant committed the offence charged. He observed that the question of admissibility to show a propensity to commit an offence of the kind charged was unaffected by the nature of the specific issue in dispute.

10. He then considered the question of the Respondent's application to exclude the evidence under Section 101(3) and referred to the guidance in R v Hanson at paragraph 10 of the judgment: that the court should have in mind, among other things, the degree of similarity between the previous conviction and the offence charged; the respective gravity of the past and present offence; and the strength of the prosecution case.

11. He observed that the current allegation was dissimilar to the type of dishonesty (and particularly theft by shoplifting) that the Respondent normally engaged in, and crucially, that on the basis of the representations made to him, he concluded that the prosecution case was not strong.

12. There was a real possibility that the evidence of bad character was being used to bolster a weak case. Accordingly, he ruled that its admission would have such an adverse effect on the fairness of the proceedings that it must be excluded."

5. From this it is apparent that the District Judge rejected a number of the respondent's arguments. The history of conviction did establish a propensity to commit offences of the kind charged and this did render the evidence prima facie admissible irrespective of the fact that the issue for the Justices was the correctness of the identification. With that I would agree. But he was persuaded after hearing submissions, particularly based on paragraph 10 of Hanson, that there was a real possibility that the evidence of bad character was being used to bolster a weak case, based as it was on identification from CCTV images of doubtful quality.
6. The appeal to this court lies on an issue of law. There is no suggestion that the District Judge misdirected himself as to the law or took into account matters which were not capable of being relevant considerations. The submission is simply that he was wrong.
7. In counsel's skeleton argument, it is submitted, without elaboration, that he misapplied the guidance in Hanson at paragraph 10. Mr Alford has frankly accepted before us that there is no specific error of law which he can identify. Thus the question for this court, correctly formulated in the immaculately prepared case stated, is whether the District's Judge's decision was perverse, or should this court hold that no reasonable District Judge could properly have reached the conclusion which he reached?
8. I would hold that this was a decision which he was entitled to reach and was not one which could be condemned as perverse. It may be that one or more members of this court, hearing the matter afresh, might have reached a different result, but that falls far short of holding that no reasonable tribunal could have decided as the District Judge did.
9. This may be an appropriate moment to reiterate what Rose LJ said in Hanson at paragraph 15:

"If a judge has directed himself or herself correctly, this Court will be very slow to interfere with a ruling either as to admissibility ... It will not interfere unless the judge's judgment as to the capacity of prior events to establish propensity is plainly wrong, or discretion has been exercised unreasonably in the Wednesbury sense."

It seems to us that just the same applies to this court considering an appeal against a decision by a District Judge Magistrates' Court.

10. Thus it was that the lay Justices on 31st July did not hear the bad character evidence. The second point before us was to be a challenge to the Justices' decision to acquit the respondent on the evidence before them. In the case stated they summarised the evidence, including the evidence of two police officers that they had looked at the CCTV tape, that they knew the respondent and that they recognised him as the person in the CCTV. It is recorded that both officers accepted that mistakes in identification can occur, though one of them was re-examined and stated she did not believe she had made a mistake.
11. The Justices found the CCTV evidence not to be clear. Reliance had been placed on the similarity between the T-shirt of the man shown on the video and the defendant's T-shirt but the Justices did not find it to be distinctive nor could they be sure that that was the same garment. The Justices set out their reasons for finding that they could not be sure that the respondent was the man on the footage and accordingly they acquitted the respondent and dismissed the charge against him.
12. In our judgment, this was a matter for them to determine as judges of fact, correctly applying the relevant principles of law, including, of course, the standard of proof required in criminal cases. In the skeleton argument prepared by Mr Alford, reliance was placed on a number of authorities which established, among other things, that evidence of recognition from photographic or CCTV evidence given by witnesses who know the defendant and claim to be able to recognise him as the person on that coverage is admissible. No issue as to the admissibility of such evidence was raised in the present case. It was then for the court to examine the evidence as a whole and to reach a decision on the guilt or otherwise of the defendant on trial.
13. Mr Alford sensibly and disarmingly resiles from the submission in his skeleton argument that the bench of Justices were incorrect to substitute their own failure to recognise the defendant on the video for the successful recognition by the two police officers. That was, in my view, a somewhat alarming submission and it is no surprise that Mr Alford did not feel able to advance it today, because it seems to imply that if the police officers say that he is guilty then he must be guilty, not a principle to be applied by the Justices or by any court.
14. I would add that, even if the District Judge had admitted the bad character evidence, the issue before the lay Justices would have been exactly the same; they would have been no less entitled to reach the conclusion which they did in fact reach. The evidence against the respondent, taken as a whole, would no doubt have been very much stronger, but it would still not have obliged the court to convict. Indeed, directing themselves in accordance with Hanson and the other cases that they must not give the bad character evidence undue weight, they might well have reached just the same outcome as that which was in fact reached and, if Mr Alford had succeeded in his first submission, there would have been a substantial difficulty in seeking to persuade this court that the acquittal should be set aside.
15. I would therefore dismiss this appeal.
16. LORD JUSTICE SCOTT BAKER: I agree that neither the decision of the District Judge nor the decision of the Justices was perverse.
17. MR SPEED: My Lord, there are no applications.
18. LORD JUSTICE SCOTT BAKER: Thank you very much.