R v Hanson; R v Gilmore; R v Pickstone
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT |
| Judgment Date | 22 March 2005 |
| Neutral Citation | [2005] EWCA Crim 824 |
| Docket Number | No: 200501030/D3200500813/C4200500927/D3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 22 March 2005 |
[2005] EWCA Crim 824
Guideline Court
BEFORE:
The Vice President
(Lord Justice Rose)
Mr Justice Hughes
Mrs Justice Hallett Dbe
No: 200501030/D3200500813/C4200500927/D3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
MR B HOULDER QC & MR G BRIDGE, MISS S POWIS & MISS M MAXWELL-BURNSIDE appeared on behalf of the CROWN
MR A NICHOL QC & MR J LINDSAY, MR P BRADLEY & MR S TIERNEY appeared on behalf of the APPLICANTS
All members of the constitution have contributed to this judgment.
We have heard these three applications together because they raise similar questions in relation to the admissibility of evidence of a defendant's bad character under the recently introduced provision in sections 98 to 113 of the Criminal Justice Act 2003. These abolish the long established common law rules governing the admissibility of evidence of bad character and introduce a raft of new provisions.
Before turning to the individual cases, it is first convenient to set out our conclusions in the light of the helpful submissions made to us by counsel as to the way in which trial judges should approach their task when confronted by a prosecution application to adduce such evidence. These comments are not intended to be a comprehensive treatise on the new provisions. Their primary focus is on the issues raised in these applications.
The starting point should be for judges and practitioners to bear in mind that Parliament's purpose in the legislation, as we devine it from the terms of the Act, was to assist in the evidence based conviction of the guilty, without putting those who are not guilty at risk of conviction by prejudice. It is accordingly to be hoped that prosecution applications to adduce such evidence will not be made routinely, simply because a defendant has previous convictions, but will be based on the particular circumstances of each case.
Section 101(1) provides seven possible gateways through which evidence of a defendant's bad character is admissible. The ones likely to be most commonly relied upon by the prosecution are (d), where the evidence is relevant to an important matter in issue between the defendant and the prosecution, (f), where the evidence is to correct a false impression given by the defendant and (g), where the defendant has made an attack on the character of another person who will often, though not always, be the victim of the alleged crime, whether alive or dead.
The present applications are concerned only with the Crown wishing to rely upon evidence of previous convictions rather than other evidence of bad character. By section 103(1) matters in issue for the purpose of section 101(1(d) 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;
(d) the question whether the defendant has a propensity to be untruthful, except where it is not suggested the defendant's case is untruthful in any respect."
By section 103(2) a defendant's propensity to commit offences of the kind with which he is charged may be established (without prejudice to any other way of doing so), by evidence of conviction of an offence of the same description or category as the one with which he is charged, but by section 103(3), this does not apply if the Court is satisfied that this would be unjust "by reason of the length of time since the conviction or for any other reason". The Criminal Justice Act 2003 (Categories of Offences) Order 2004, Statutory Instrument 2004 No 3346, prescribes offences in the categories of theft and sexual offences against persons under the age of 16.
Where propensity to commit the offence is relied upon there are thus essentially three questions to be considered:
Does the history of conviction(s) establish a propensity to commit offences of the kind charged?
Does that propensity make it more likely that the defendant committed the offence charged?
Is it unjust to rely on the conviction(s) of the same description or category; and, in any event, will the proceedings be unfair if they are admitted?
In referring to offences of the same description or category, section 103(2) is not exhaustive of the types of conviction which might be relied upon to show evidence of propensity to commit offences of the kind charged. Nor, however, is it necessarily sufficient, in order to show such propensity, that a conviction should be of the same description or category as that charged.
There is no minimum number of events necessary to demonstrate such a propensity. The fewer the number of convictions the weaker is likely to be the evidence of propensity. A single previous conviction for an offence of the same description or category will often not show propensity. But it may do so where, for example, it shows a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged (compare DPP v P [1991] 2 AC 447 at 460E to 461A). Child sexual abuse or fire setting are comparatively clear examples of such unusual behaviour but we attempt no exhaustive list. Circumstances demonstrating probative force are not confined to those sharing striking similarity. So, a single conviction for shoplifting, will not, without more, be admissible to show propensity to steal. But if the modus operandi has significant features shared by the offence charged it may show propensity.
In a conviction case, the decisions required of the trial judge under section 101(3) and section 103(3), though not identical, are closely related. It so to be noted that wording of section 101(3) —"must not admit" —is stronger than the comparable provision in section 78 of the Police and Criminal Evidence Act 1984 —"may refuse to allow". When considering what is just under section 103(3), and the fairness of the proceedings under section 101(3), the judge may, among other factors, take into consideration the degree of similarity between the previous conviction and the offence charged, albeit they are both within the same description or prescribed category. For example, theft and assault occasioning actual bodily harm may each embrace a wide spectrum of conduct. This does not however mean that what used to be referred as striking similarity must be shown before convictions become admissible. The judge may also take into consideration the respective gravity of the past and present offences. He or she must always consider the strength of the prosecution case. If there is no or very little other evidence against a defendant, it is unlikely to be just to admit his previous convictions, whatever they are.
In principle, if there is a substantial gap between the dates of commission of and conviction for the earlier offences, we would regard the date of commission as generally being of more significance than the date of conviction when assessing admissibility. Old convictions, with no special feature shared with the offence charged, are likely seriously to affect the fairness of proceedings adversely, unless, despite their age, it can properly be said that they show a continuing propensity.
It will often be necessary, before determining admissibility and even when considering offences of the same description or category, to examine each individual conviction rather than merely to look at the name of the offence or at the defendant's record as a whole. The sentence passed will not normally be probative or admissible at the behest of the Crown, though it may be at the behest of the defence. Where past events are disputed the judge must take care not to permit the trial unreasonably to be diverted into an investigation of matters not charged on the indictment.
As to propensity to untruthfulness, this, as it seems to us, is not the same as propensity to dishonesty. It is to be assumed, bearing in mind the frequency with which the words honest and dishonest appear in the criminal law, that Parliament deliberately chose the word "untruthful" to convey a different meaning, reflecting a defendant's account of his behaviour, or lies told when committing an offence. Previous convictions, whether for offences of dishonesty or otherwise, are therefore only likely to be capable of showing a propensity to be untruthful where, in the present case, truthfulness is an issue and, in the earlier case, either there was a plea of not guilty and the defendant gave an account, on arrest, in interview, or in evidence, which the jury must have disbelieved, or the way in which the offence was committed shows a propensity for untruthfulness, for example, by the making of false representations. The observations made above in paragraph 9 as to the number of convictions apply equally here.
As to section 101(1)(g), pre 2003 Act authorities will continue to apply when assessing whether an attack has been made on another person's character, to the extent that they are compatible with section 106.
If a judge has directed himself or herself correctly, this Court will be very slow to interfere with a ruling either as to admissibility or as to the consequences of noncompliance with the regulations for the giving of notice of intention to rely on bad character evidence. 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 (compare R v Makanjuola (1995) 2 Cr App R 469 at 473E).
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