R v Bradley (David Benjamin)
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT |
| Judgment Date | 14 January 2005 |
| Neutral Citation | [2005] EWCA Crim 20 |
| Docket Number | No: 200407169/C3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 14 January 2005 |
[2005] EWCA Crim 20
IN THE COURT OF APPEAL
CRIMINAL DIVISION
The Vice President
(Lord Justice Rose)
Mr Justice Mitting
Mr Justice Walker
No: 200407169/C3
MR R BROOMFIELD appeared on behalf of the APPELLANT
MR R HORWELL & MR R WOODCOCK appeared on behalf of the CROWN
This appeal, brought with the certificate of the trial judge, has been heard urgently because it raises a short, difficult and important point of construction of Part 11 of the Criminal Justice Act 2003, which is of potential significance in a large number of current or pending trials in Crown Courts and Magistrates' Courts.
Each member of this Court has contributed to this judgment.
The provisions of sections 98 to 110 and 112 of the Act, in relation to evidence of bad character, were brought into force on 15th December 2004. The question is as to whether those provisions apply in all trials beginning on or after that date, or only in those in relation to which proceedings began on or after that date.
The circumstances of the present case are that on 17th December 2004, at Newcastle-upon-Tyne Crown Court, following a trial before His Honour Judge Faulks, which began on the afternoon of 15th December, the appellant was convicted of robbery, on count 1, and having an imitation firearm with intent, on count 2. He was sentenced to life imprisonment concurrently on each count, and the judge recommended that he serve a term of just over four-and-a-half years' imprisonment.
The trial judge's certificate for appeal against conviction was on the ground that:
"There is doubt as to when the bad character provisions of the Criminal Justice Act 2003 come into effect."
The facts in relation to this case are that on 21st June 2004, shortly after 5.30 pm, two men, wearing stocking masks, entered a bookmakers, armed with an imitation firearm and stole a quantity of money. On departing, one of the robbers dropped his stocking mask. A full DNA profile was recovered from that part of it where the man's mouth would have been had he worn it as a mask. That profile matched the appellant's DNA profile. The appellant was arrested and interviewed on 8th July 2004. He denied involvement but was charged the same day. In a defence statement, at the end of September, he gave details of an alibi and, at his trial, he gave evidence relying upon that alibi.
He advanced an explanation for the presence of his DNA on the mask, on the basis that someone else might have picked up a dirty pair of tights on which he had spat, while using them for polishing cars. Thereafter, whoever it was who had picked up the tights, had used them as a mask. He called scientific evidence to demonstrate that the mask might have been worn by some other person without that person leaving on it material from which a DNA profile could be obtained.
The judge admitted, in evidence, under section 101(1)(d) of the Criminal Justice Act 2003, as being relevant to an important matter in issue between the defendant and the prosecution, the appellant's previous conviction on 7th September 2000, for an offence of robbery, committed on 26th December 1999.
Two grounds of appeal challenge that ruling. It is said, first, that the judge erred in concluding that evidence of that previous conviction was admissible, and secondly, that he was wrong to rule that criminal proceedings, as defined by section 112(1) of the Act should properly be interpreted, so as to mean "trial": section 141 of the Act only operated so as to prohibit any of the provisions of Part 11 of the Act from having effect in relation to trials begun before the commencement of those provisions.
In order to focus on the problem which arises from the statute, we turn, first, to the relevant legislative provisions. Part 11 of the Criminal Justice Act 2003 enacts new rules for certain categories of evidence in criminal cases. Chapter 1 deals with evidence of bad character; chapter 2 with hearsay evidence; and chapter 3 with miscellaneous and supplemental matters.
In chapter 1, section 98 defines "bad character". Section 99(1) abolishes the common law rules governing admissibility of evidence of bad character. Section 100 lays down the circumstances in which evidence of bad character of a person other than the defendant is admissible. Sections 101 —108 deal with the admission of evidence of a defendant's bad character. Section 101(1) provides:
"In criminal proceedings evidence of the defendant's bad character is admissible if but only if,
(a) all parties to the proceedings agree to the evidence being admissible
(b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intending to elicit it
(c) it is important explanatory evidence
(d) it is relevant to an important matter in issue between the defendant and the prosecution
(e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant;
(f) it is evidence to correct a false impression given by the defendant or
(g) the defendant has made an attack on another person's character."
Section 101(3) requires the court not to admit evidence under subsection 1(d) or (g) if "on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."
Sections 102 —106 define the circumstances in which evidence of bad character is admissible under subsections 101(1)(c) to (g). The most radical change to the rules governing admissibility at common law and in section 1 of the Criminal Evidence Act 1898 is effected by section 103(1), which provides:
"For the purposes of section 101 (1)(d) the matters in issue between the defendant and the prosecution include—
(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;
(b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect."
Section 107 requires the court to direct a jury to acquit the defendant of an offence or discharge the jury and order a retrial when it is satisfied at any time after the close of the case for the prosecution that evidence of bad character admitted under section 101(1)(c)-(g) is contaminated and that the contamination is such that his conviction would be unsafe.
Section 111 provides for rules of court to be made specifying, amongst other matters, the notices which each party must give if he intends to rely on any provisions of chapter 1 part 11.
Section 112(1) is the interpretation section for chapter 1. It defines "criminal proceedings" as "criminal proceedings in relation to which the strict rules of evidence apply." It also defines "defendant" and "co-defendant": "defendant", in relation to criminal proceedings, means a person charged with an offence in those proceedings; and "co-defendant", in relation to a defendant, means a person charged with an offence in the same proceedings.
Section 113 and schedule 6 apply Part 1 to proceedings before service courts.
Chapter 2 enacts a new code for hearsay evidence. It, too, applies to "criminal proceedings" as defined in section 112(1): see section 134(1).
Chapter 3 enlarges the circumstances in which evidence may be given by video recording and specifies the circumstances in which documents may be used to refresh memory by a person giving oral evidence. It, too, applies to "criminal proceedings" as defined in section 112(1): see section 140.
The last section in Part 11, chapter 3, is section 141 which states:
"No provision of this part has effect in relation to criminal proceedings begun before the commencement of that provision."
The rule-making provision in section 111 was brought into effect on 21st January 2004 by the Criminal Justice Act 2003 (Commencement No 2 and Transitional Provisions) Order 2004. Sections 139 —141 were brought into effect on 5th April 2004 by the Criminal Justice Act 2003 (Commencement No 3 and Transitional Provisions) Order 2004. Sections 98 —110 and 112 were brought into effect on 15th December 2004 by the Criminal Justice Act 2003 (Commencement No 6 and Transitional Provisions) Order 2004. The same statutory instruments repealed section 1(3) of the Criminal Evidence Act 1898. It is to be noted, in passing, that despite the expectations raised by their titles, the statutory instruments contained no transitional provisions.
Whether the new rules governing the admissibility of evidence of bad character can apply depends on the meanings of the words in section 141: "Criminal proceedings begun before the commencement of that provision." Two rival contentions are advanced before us. They are foreshadowed in paragraphs 46 —49 of a paper prepared for the Judicial Studies Board in November 2004, by the distinguished academic criminal lawyer Professor J R Spencer QC to which the trial judge was referred. For the appellant, it is said that the new provisions apply to criminal proceedings begun by the laying of a charge or information on a after 15th December 2004. For the respondent, it is said that they apply to all trials and Newton (77 Cr App R 13) hearings begun on a after 15th December 2004. It is apparent that Parliament, had it chosen to do so, could have made its intention crystal clear by...
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