R v Bovell (Kelvin Anthony); R v Dowds (Peter Andrew)
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT |
| Judgment Date | 25 April 2005 |
| Neutral Citation | [2005] EWCA Crim 1091 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 200501071/B2-200501089/C2 |
| Date | 25 April 2005 |
[2005] EWCA Crim 1091
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
GUIDELINE COURT
The Vice President
(Lord Justice Rose)
Mr Justice Gibbs
Mr Justice Stanley Burnton
No: 200501071/B2-200501089/C2
MR J ANDERS appeared on behalf of the APPLICANT BOVELL
MR M HURST appeared on behalf of the APPLICANT DOWDS
MR B HOULDER QC & MISS V VYAS & MISS S KNIGHT appeared on behalf of the CROWN
These two applications for leave to appeal against conviction have been referred to the Full Court by the Registrar. Although they are unrelated, we have heard them together because they provide further examples of the application of the bad character provisions in sections 98 to 113 of the Criminal Justice Act 2003 which were considered by this Court, differently constituted, in R v Hanson, Pickstone and Gilmore [2005] EWCA Crim 824.
These cases afford no basis for further general guidance, but we think it desirable to mention two additional matters. First, it is necessary for all parties to have the appropriate information in relation to convictions and other evidence of bad character, whether in relation to the defendant or to some other person, in good time. That can only be achieved if the rules in relation to the giving of notice are complied with. It is worth mentioning that the basis of plea in relation to an earlier conviction may be relevant where it demonstrates differences from the way in which the prosecution initially put the case. In other words, a mere reference to the statement of a complainant in an earlier case may not provide the later court with the material needed to make a decision as to the admissibility of the earlier conviction. Secondly, it is apparent that difficulties may arise in relation to the preservation and storage of information, having regard to the present provisions of paragraph 5.8 in the Current Code of Practice made under Part II of the Criminal Procedure and Investigation Act 1996. That provides for the retention of relevant material until a convicted person is released from custody, or discharged from hospital, in cases where the court imposes a custodial sentence or a hospital order, or, in all other cases, for 6 months from the date of conviction.
It is not feasible for this Court, today, to propose any amendment of that provision. But consideration as to whether it should be amended in the light of the obligations arising from the bad character provisions of the Criminal Justice Act 2003 ought, as it seems to us, to be given, in particular by the prosecuting authorities.
We turn to the case of Bovell. He was convicted at Woolwich Crown Court, on 27th January 2005, following a trial before His Honour Judge Moss, of wounding with intent. The following day he was sentenced to five-and-a-half years' imprisonment and an order for forfeiture of golf clubs was made under section 1(2) of the Prevention of Crime Act 1953.
In outline, the facts were that, on 5th September 2004, the applicant was involved in an altercation with a shopkeeper, Singh Harjinder Nazran, outside his shop. The culmination of the incident was that Mr Nazran was stabbed three times, twice to the leg and once in the buttock. The applicant ran away before the police arrived. The prosecution case was that the applicant had deliberately stabbed Mr Nazran, intending serious harm.
The defence case was that it was the applicant who had been attacked by Mr Nazran and he, the applicant, was acting in self-defence.
Mr Nazran gave evidence that the incident occurred after 7 o'clock in the evening. He knew the applicant. The applicant asked for credit. Mr Nazran refused. A little later, the applicant returned. He was aggressive. So much so that the complainant put his daughter, who was with him, inside the shop. The applicant was accompanied by his girlfriend, who had a golf club. The applicant walked up to him, seized the golf club from his girlfriend, which she immediately snatched back, and came towards the complainant face-to-face. According to the complainant, the applicant was ranting and raving and stabbed him in the top part of his left thigh. At first he felt nothing, but, as he turned to get a piece of wood, his leg gave way. Thereupon he was stabbed in the buttock by the applicant.
At hospital there were found to be two cuts in his leg. They were stitched together and the wound in his buttock was also stitched.
The defence sought to adduce before the jury, under section 100 of the Criminal Justice Act 2003, evidence of the bad character of Mr Nazran. The material then available was a conviction for handling stolen goods in October 1993, when the complainant was 20, for which he was fined and a conviction for robbery, committed in 1993, for which he had been sentenced to 4 years' imprisonment, following a guilty plea. The details of that offence of robbery then provided were that Mr Nazran had attacked his victim, placed a bag over his head, threatened him and stolen his property.
The defence submitted that these convictions were relevant and admissible, in accordance with section 100(1)(b), that is to say, they had substantial probative value. It was said that they showed Mr Nazran's propensity to act violently and also went to his credibility.
The trial judge concluded that he could not imagine a jury giving any weight to the previous convictions at all. They were over a decade ago, and neither of them involved, on the information then before the court, a weapon. He was not persuaded that they had substantial probative value and he declined to permit evidence in relation to them to be adduced. It is that aspect of the matter which is at the heart of the present application and to it we shall shortly return.
To complete our reference to the evidence before the jury, a Mr Doal, who was the complainant's cousin, worked part-time in the shop. He had known the applicant for several years. He described the applicant crossing the road, shouting and moving his arms about, and said he sought to intervene by standing between the applicant and the complainant. He did not hear the substance of the conversation between the two, but he did hear the applicant saying, aggressively, that he would be coming back. A little later, he saw the applicant and his girlfriend, and the applicant at that time was carrying a golf club. He described the applicant and the complainant as "sort of grappling", pushing and shoving. Mr Doal went to break that up but the applicant's girlfriend hit him on the head with the golf club. He saw a knife, with a blade some six inches long, come from the applicant's waistband and he saw the applicant stab the complainant, twice, in the left thigh.
A woman called Monica Drummond described hearing the sound of breaking glass and looking out of her window. Some 30 feet away she saw what was clearly the applicant and his girlfriend and she thought they were both carrying golf clubs. She saw the complainant come out of the shop with blood running down his leg, but she did not see the stab which had caused that.
The applicant, in evidence, said that he had gone to the shop initially to buy a drink. He was a few pence short and asked if he could owe the balance. The complainant had sworn at him. He, the applicant, had sworn back and called the complainant a "drunken idiot". He had gone to his girlfriend's to get the money he needed. He went back to the shop followed by his girlfriend, who had a golf club, although he did not. He had reached for the golf club because he was afraid of the complainant's dog, but she had snatched it back. Someone had hit him from behind and on the side and he suspected that that was Mr Doal. He had...
To continue reading
Request your trial
-
The State v Ken Foster
...[13]. 5 [2012] EWCA Crim 1130, [2013] 1 Cr App R 3. 6 [2012] EWCA Crim 1130, [2013] 1 Cr App R 3 [12]. 7 The Anti-Gang Act, 2011 8 [2005] EWCA Crim 1091, [2005] 2 Cr. App. R. 27 [21]. 9 [2005] EWCA Crim 3244, [2006] 1 W.L.R. 1524, [2006] 3 All E.R. 882, [2006] 2 Cr. App. R. 4 [1] vi......
-
Ferguson v The State
...character evidence. Counsel submitted that this conclusion is entirely consistent with the decision in R v. Bovell and R v. Dowds [(2005) EWCA Crim. 1091] where Rose, L.J. opined at para. 21: “It was in considerable doubt whether the mere making of an allegation is capable of bad character ......
-
R v Highton; R v Van Nguyen; R v Carp
...decisions of this Court dealing with these provisions. The cases are those of R v Hansen [2005] EWCA Crim 824, R v Bovell & Dowdes [2005] EWCA Crim 1091 and R v Edwards, Fysh, Duggen and Chohan [2005] EWCA Crim 1813. The principal issue which arises on these appeals is whether evidence admi......
-
R v Lafayette (Anthony Lascelles)
...that has been placed before me. Basically, the defence say that the facts of this case are close to the case of Bovell & Dowds [2005] 2005 EWCA Crim 1091, paragraph 21.” Secondly, in any event it is only an allegation. Thirdly, looking at it overall, it is highly prejudicial: it being, in t......
-
Court of Appeal
...begun to emerge, through keydecisions of the Court of Appeal in R v Hanson [2005] EWCA Crim 824,(2006) 70 JCL 6; R v Bovell and Dowds [2005] EWCA Crim 1091, (2006)70 JCL 11; R v Edwards [2005] EWCA Crim 1813, (2006) 70 JCL 109; RvHighton [2005] EWCA Crim 1985, (2006) 70 JCL 115; R v Renda[2......
-
Non-defendant bad character and s. 100 of the Criminal Justice Act 2003: A socio-legal analysis of admissibility gateways and trial tactics
...difficult to understand without the admission of (at least) the bare fact of the relevant persons’conviction(s).44. See: Bovell [2005] EWCA Crim 1091, [2005] 2 CrAppR 27; Dizaei [2013] EWCA Crim 88, [2013] 1 WLR 2257, [2013] 1CrAppR 31; King [2015] EWCA Crim 1631; Rehman [2017] EWCA Crim 1......
-
Wiping the Slate Clean: Reforming Scots Law's Approach to Evidence of the Accused's Bad Character
...373.148 Hanson, n 53 above at [9] per Rose LJ; RvTully and Wood [2006] EWCA Crim 2270.149 Hanson ibid at [12] per Rose LJ; RvBovell [2005] EWCA Crim 1091; [2005] 2 Cr App R 27. See,also, DS, n 25 above at [52] per Lord Hope.150 The SLC deals with some of these issues in its discussion of pr......
-
Criminal Justice Act 2003: Bad Character Provisions
...constitute evidence of a defendant’s bad character, the Court ofAppeal held that they could. The doubt expressed in Bovell and Dowds[2005] EWCA Crim 1091, (2006) 70 JCL 11 as to the evidential qualityof a ‘mere’ allegation was in the context of an allegation made against aperson other than ......