R v Campbell (Kenneth)
| Jurisdiction | England & Wales |
| Judgment Date | 26 June 2007 |
| Neutral Citation | [2007] EWCA Crim 1472 |
| Docket Number | Case No: 200605014 C4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 26 June 2007 |
[2007] EWCA Crim 1472
The Lord Chief Justice of England and Wales
The Honourable Mr Justice Henriques and
The Honourable Mr Justice Teare
Case No: 200605014 C4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM READING CROWN COURT
His Honour Judge Risius, CB
T20067093
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr R. Fortson for the Appellant
Mr R. Bendall for the Respondent
Hearing dates: 14th May 2007
Lord Phillips of Worth Matravers CJ:
Prior to the Criminal Justice Act 2003 it was rare for a jury to be given details of a defendant's previous criminal record. Since that Act has come into force it has become much more common. There have been a number of appeals in relation to the direction given by the judge to the jury in relation to a defendant's previous convictions. This is another such case. Two previous convictions of the appellant were placed before the jury. The appellant contends that his conviction is unsafe because the judge gave the jury a direction in relation to the relevance of his previous convictions that was not appropriate. This appeal raises not only the question of the approach of the trial judge when summing up in relation to previous convictions. It raises the more general question of the approach of the trial judge and of this court to directions that deal with what are essentially matters of common sense.
On 7 September 2006 in the Crown Court at Reading before HH Judge Risius the appellant was convicted of one offence of false imprisonment and one offence of assault occasioning actual bodily harm. On 30 November 2006 he was sentenced by Judge Risius in respect of the first offence to an indeterminate sentence for public protection pursuant to section 225 of the Criminal Justice Act 2003, with a minimum term to be served before being considered for release of 2 years. 208 days on remand was ordered to count towards this sentence. No separate penalty was imposed in relation to the second offence. The appellant was granted permission to appeal against conviction by Eady J.
At the end of the hearing we dismissed the appeal. The following are our reasons for doing so.
The facts
The complainant's evidence was that she lived in a one bedroom house in Reading. She met the appellant through a former girlfriend of his and he would visit her house to take drugs with her. Several other people were staying there. The relationship with the appellant was, at times, sexual, but she found him frightening. In the middle of March 2006 the appellant gained access to her house by kicking down the door and then moved a television set and a commode into her bedroom. He told her to remain in that room and she did so because she was frightened of him. The next day she attempted to leave her house, but he dragged her back by her hair. He left the house occasionally for short periods and, on Friday 17 March, went to the Doctor's surgery, which was, however, within sight of the flat, so that she was too frightened to leave then.
That evening, when the appellant was asleep, the complainant enlisted the help of a friend and ran away to the house of another friend, Declan, where she stayed the night. The appellant arrived at Declan's house on the evening of 18 March, very angry. He dragged her into the hall by her shoulders, catching her neck and the back of her head against a fire extinguisher. He then banged her head against the wall and tried to strangle her. The police were called but she did not at that stage complain of any injuries. The following day, however, she attended the police station and reported the appellant's behaviour. The police noticed scratches on her neck and found blood in the hall of Declan's house. The complainant declined to submit herself to a medical inspection.
The appellant gave evidence. He confirmed that the complainant was his girl friend and that they smoked crack cocaine together. He said that he had been sleeping at her flat but spent the days away from the flat. He had never done anything to prevent the complainant from leaving the flat. There had been no arguments and no violence. He had visited the Doctor, two blocks away, on the 17 March. The complainant left on her own accord to go to Declan's. The complainant's allegations of assault and false imprisonment were invented.
Evidence of bad character
The 2003 Act makes lengthy provision for the circumstances in which evidence of a defendant's bad character is admissible:
“101 Defendant's bad character
(1) 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 intended 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.
(2) Sections 102 to 106 contain provision supplementing subsection (1).
(3) The court must not 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.
(4) On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged.
…
103 'Matter in issue between the defendant and the prosecution'
(1) 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.
(2)Where subsection (1)(a) applies a defendant's propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of—
(a) an offence of the same description as the one with which he is charged, or
(b) an offence of the same category as the one with which he is charged.
(3) Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case.
(4) For the purposes of subsection (2)—
(a) two offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be in the same terms;
(b) two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State.
(5) A category prescribed by an order under subsection (4)(b) must consist of offences of the same type.
(6) Only prosecution evidence is admissible under section 101(1)(d).”
The appellant has many previous convictions, starting with one for criminal damage in 1984. These include offences of violence and a number of offences of dishonesty. The Crown sought and obtained permission from the judge to adduce evidence of only two previous offences. The first was a conviction on 8 November 2002 for actual bodily harm to Janet Williams, a former girlfriend. The second was a conviction on 22 September 2004 for battery of his then current girlfriend, Susan Addison. His conduct on those occasions included hair pulling, grabbing by the throat and strangulation. He pleaded guilty on each occasion. The ground upon which permission was sought and given to adduce this evidence was that it showed a propensity to commit acts of violence towards women and was thus admissible pursuant to section 101(1) (d) of the Act. Although the admission of this evidence was opposed at the time, the judge's decision to admit it was not challenged before us.
Directions to the jury
The judge started his summing up by directing the jury as to the relevant law, dealing with the burden and standard of proof and the ingredients of the offences with which the appellant was charged. He then went on to give the jury directions as to the relevance of evidence that they had heard in relation to the bad character both of the appellant and of the complainant. Those directions were as follows:
“Next, a word about Mr Campbell's character. You have heard evidence that he has a bad character in the sense that he has a criminal conviction from 2002 for assaulting someone called Janet Williams, thereby causing her actual bodily harm, and another conviction from the year 2004, this time for the offence of battery. 'Battery' is another word for an assault where physical contact is made but which does not necessarily cause injury, and that was in relation to another woman called Susan Addison. It is important that you should understand why you have heard this evidence and how you may use it. As I will explain in a little more...
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Subject Index
.... . . . . . 298R vBurns [2006] EWCACrim 617 . . . . . . . . . . . 282R vByfield 1990 NSWLEXIS 10770 . . . . . . . . . 298R v Campbell [2007] EWCA Crim 1472, [2007]1 WLR2798. . . . . . . . . . . 77, 124, 137,139, 278R v Cannings (Angela) [2004] EWCA Crim1 . . . . . . . . . . . . . . . . . . ......
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Bad Character Evidence and Reprehensible Behaviour
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Single-Act Propensity
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