R v Edwards (Karl Adrian)
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT |
| Judgment Date | 29 June 2005 |
| Neutral Citation | [2005] EWCA Crim 1813 |
| Docket Number | No: 200501210/B3200501250/D4200501977/B4200501107/B1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 29 June 2005 |
[2005] EWCA Crim 1813
IN THE COURT OF APPEAL CRIMINAL DIVISION
The Vice President (Lord Justice Rose)
Mr Justice Holland
Mr Justice Richards
No: 200501210/B3200501250/D4200501977/B4200501107/B1
MISS F ARSHAD appeared on behalf of the APPLICANT EDWARDS
MR J LYNN appeared on behalf of the APPELLANT FYSH
MR J MCCRINDELL appeared on behalf of the APPLICANT DUGGAN
MR J SAMUELS appeared on behalf of the APPLICANT CHOHAN
MR B HOULDER & MR A BASSANO appeared on behalf of the CROWN
These four cases have been listed and heard together because they provide further examples to add to those previously considered by this Court in R v Hanson & Ors [2005] EWCA Crim 824 and R v Bovell & Dowds [2005] EWCA Crim 1091 of the admissibility of bad character under sections 98 to 113 of the Criminal Justice Act 2003.
Because of grounds which have been advanced in the cases of Fysh and Duggan in particular, in relation to alleged noncompliance in the respective summings-up with observations made by this Court in paragraph 18 of Hanson, it is convenient, before turning to the individual cases, to make some general observations in relation to that part of that judgment.
The guidance proffered in paragraph 18 of Hanson as to what a summing-up should contain was, as is apparent from the last sentence of the paragraph, not intended to provide a blueprint, departure from which will result in the quashing of a conviction. What the summing-up must contain is a clear warning to the jury against placing undue reliance on previous convictions, which cannot, by themselves, prove guilt. It should be explained why the jury has heard the evidence and the ways in which it is relevant to and may help their decision, bearing in mind that relevance will depend primarily, though not always exclusively, on the gateway in section 101(1) of the Criminal Justice Act 2003, through which the evidence has been admitted. For example, some evidence admitted through gateway (g), because of an attack on another person's character, may be relevant or irrelevant to propensity, so as to require a direction on this aspect. Provided the judge gives such a clear warning, explanation and guidance as to use, the terms in which he or she does so can properly differ. There is no rigid formula to be adhered to. That said, there is, in the case of Chohan, a summing-up by Judge Mort which seems to us to be almost impeccable and which could serve as a model in many cases where evidence of bad character is admitted. We shall rehearse the relevant passage in that summing-up when dealing with Chohan's application.
We turn, first, to the case of Edwards. On 24th February 2005, at Manchester Crown Court, following a trial before Mr Recorder Finestein, this applicant was convicted on two counts of common assault, on counts 1 and 2, and of having a bladed article in a public place on count 4. He was acquitted on count 3, of having an offensive weapon. He was sentenced to 2 months' imprisonment on each of the counts of common assault consecutively to each other, and to a further 8 months consecutively for possession of a bladed article. His total sentence was therefore 12 months' imprisonment, and an order was made under section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 for forfeiture of the knife. His applications for leave to appeal against conviction and sentence were referred to the Full Court by the Registrar.
The facts were these. On 30th April 2004 two police officers stopped the applicant, who was driving a motor vehicle along Queen's Road, Manchester. They asked to see his licence and searched his car. They discovered a bottle of ammonia, which gave rise to count 3, in relation to which, as we have said, he was acquitted. The officers sought to arrest the applicant. A scuffle ensued. The officers and the applicant sustained minor injuries. The applicant was taken to a police station where he voluntarily handed over a lock-knife, which gave rise to count 4. It was the prosecution case that the applicant had assaulted the officers while they were lawfully seeking to arrest him and that he had no good reason for being in possession of the lock—knife. It was the defence case that the police officers had carried out an unprovoked assault on the applicant. He claimed to have a good reason for being in possession of the lock-knife, namely, he had used it on a fishing trip a couple of days previously, and had then completely forgotten about it.
The first of the officers to give evidence, Police Constable Smithwaite, described the applicant swearing at him and being generally obstructive when he, the officer, reached his car. There was a struggle inside the car as the other officer, Constable Bryson, went to get the keys. Then there was a struggle outside the car, during which the officers restrained the applicant by getting him onto the floor. The officer admitted in cross-examination that, during this altercation, he had himself sworn at a passerby. Constable Bryson gave a similar account of the aggressive and unco-operative nature of the applicant's behaviour. A further officer described the knife as being located, not as the applicant claimed on his belt, but down the front of his trousers inside his jeans.
In interview, the applicant essentially said nothing in response to questions; he read a prepared statement, denying the offences and saying he had been mistreated by the police.
At the outset of the trial, the prosecution sought to adduce evidence of the applicant's previous convictions for robbery and dwelling-house burglary in 1992 in relation to the issue of credibility pursuant to section 101(1)(d). The Recorder ruled, at that stage, that, due to the age of the offences, it would not be right to allow that material to go before the jury. However, during the course of the prosecution case, the defence mounted a severe attack on the prosecution witnesses. Accordingly, the prosecution case made a further application to introduce evidence of bad character, under gateway (g) because of that attack.
On behalf of the defence, Miss Arshad accepted that the defendant had attacked the character of the two prosecution witnesses. But she invited the Recorder to exclude the evidence under section 101(3) on the basis that, by reason of the length of time, it would be unjust for the evidence to be admitted, bearing in mind that the offences were 13 years old; and their prejudicial effect, it was said, would outweigh their probative value. The Recorder ruled that, in view of the sustained attack on the character of the police, the jury was entitled to know about the 1992 conviction and he would direct the jury to give such weight to them as they saw fit.
The applicant gave evidence. He said that he was gratuitously and offensively treated by the police, whereas he had not been guilty of any bad conduct towards them. They had assaulted him and had caused him pain in the manner they applied and pulled down the handcuffs. Constable Smithwaite had told a passerby to "fuck off". He said the lock-knife was not his. Two days earlier it had been handed to him by a friend, on a fishing expedition to cut the lines. He had hooked the knife onto his jeans (the ones which he was wearing at the time of his arrest). It had been there for two days, and he had simply forgotten about it. He called his friend to confirm that he was the source of the knife. A young woman also gave evidence of the manner of application of the handcuffs by the police officers.
In passing sentence, the Recorder said that the applicant had behaved in a wholly aggressive way in assaulting the police, acting in their duty. Fortunately, the injuries were not serious, but the offences were so serious that only a custodial sentence was appropriate.
The appellant, who is 34 years of age, has a large number of previous convictions since 1991, mainly for driving and theft related offences. But, in 1992, as we have indicated, he was convicted of robbery and burglary from a dwelling and also assault occasioning actual bodily harm.
The submission which is made to this Court by Miss Arshad, on behalf of the appellant, is confined to a single ground of appeal, namely, that the previous 1992 convictions ought not to have gone before the jury. She submits that, when he ruled against the first application to admit that evidence under gateway (d), the Recorder had expressed the view that to admit that evidence would have so adverse an effect on the fairness of the proceedings that it ought not to be admitted at that stage. It is apparent from the transcript of the first ruling on 21st February, in Volume 1A, that the Recorder, having referred to the offences being committed 13 years ago, said at page 2F:
"…to allow that in at this stage would seem to be on balance to have such an adverse effect on the fairness of the proceedings that the court ought not to admit it…"
He went on to say:
"…I have to balance the type of conviction that would go before the jury as against the allegation that the defendant faces, and in the context of this case, there are offensive weapons, be it CS gas or a knife and incidents of effectively common assault on police officers, and to allow that in for these offences it seems to me would have an adverse effect on the fairness of the proceedings, but more fundamental as I have indicated, I think it is the age of the conviction which plainly must be taken into account, and, having regard to the balancing act that...
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