R v Highton; R v Van Nguyen; R v Carp
| Jurisdiction | England & Wales |
| Judgment Date | 28 July 2005 |
| Neutral Citation | [2005] EWCA Crim 1985 |
| Docket Number | Case No: 200501806/C1, 200501360/D3, 200500995/B1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 28 July 2005 |
[2005] EWCA Crim 1985
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(1) His Honour Judge Morton Jack at the Oxford Crown Court
(2) His Honour Judge Ensor at the Manchester Crown Court
(3) Recorder Marston at the Taunton Crown Court
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice Of England And Wales
Lord Justice Moore-bick and
Mr Justice Richards
Case No: 200501806/C1, 200501360/D3, 200500995/B1
Mr Peter Du Feu for the Appellant Highton
Miss Fiona Horlick for the Respondent in Highton
Mr Michael Goldwater for the Appellant Van Nguyen
Mr William Baker for the Respondent in Van Nguyen
Mr Terry Munyard for the Appellant Carp
Mr Peter Ashman appeared for the Respondent in Carp
Lord Woolf:
This is the judgment of the Court:
THE GENERAL POSITION
We are hearing these three appeals together because they each concern the bad character provisions contained in the Criminal Justice Act 2003 (the "2003 Act"), Part XI, Chapter 1, sections 98–113. There are already 3 previous 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 admitted under s.101(1)(g) as a result of an attack by the defendant on another person's character is admissible as evidence of a propensity to commit offences of the kind with which the defendant is charged, or is only admissible in relation to his credibility, that is, as evidence tending to show that he is likely to be untruthful. That issue did not arise in those earlier appeals and this judgment is the first judgment relating to it.
The issue arises because s.101 of the 2003 Act identifies 7 different gateways, at least one of which must be complied with before evidence of a defendant's bad character is admissible in criminal proceedings. However, the 2003 Act does not expressly identify the purpose for which the bad character evidence can be used if it passes through one of those gateways and is therefore admissible. Two different interpretations are contended for by counsel appearing for the appellants and the Crown. The appellants contend that the purposes for which admissible evidence of bad character can be used are confined by the terms of the gateway through which the evidence is admitted. The Crown, on the other hand, contends that once the evidence becomes admissible by passing through any gateway, it can be used for any purpose for which bad character evidence is relevant in the particular case.
The dimensions of the issue are apparent when the relevant provisions of the sections of the 2003 Act are considered. They start with s.101(1) itself.
"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 provisions 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."
The meaning of the words "the defendant's bad character" is dealt with in s.98 which provides:
"98 "Bad character"
References in this Chapter to evidence of a person's "bad character" are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which –
(a) has to do with the alleged facts of the offence with which the defendant is charged, or
(b) is evidence of misconduct in connection with the investigation or prosecution of that offence."
The interpretation section, s.112, provides:
(1) In this Chapter:
"bad character" is to be read in accordance with s.98;
"criminal proceedings" means criminal proceedings in relation to which the strict rules of evidence apply; and
"misconduct" means the commission of an offence or other reprehensible behaviour.
S.99 abolishes the common law rules governing the admissibility of evidence of bad character in criminal proceedings but the abolition is subject to s.118 (1), in so far as it preserves the rules under which, in criminal proceedings, a person's reputation is admissible for the purposes of good or bad character.
It is next necessary to refer to s.102 which is linked to s.101(1)(c). S.102 provides:
"For the purposes of section 101(1)(c) evidence is important explanatory evidence if-
(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
(b) its value for understanding the case as a whole is substantial.
Next, we come to s.103 which played a significant part in the argument. It is linked to s.101(1)(d). It reads:
"(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)."
Section 104 deals with matters in issue between the defendant and co-defendant (dealt with in s.101(1)(e)). Section 105 deals with evidence to correct a false impression (dealt with in s.101(1)(f)) and s.106 deals with attacks on another person's character (dealt within s.101(1)(g)). These sections did not feature in argument and it is not necessary to refer to them further.
If, however, we return to s.103(1), it is to be noted that it deals with propensity. The argument before us was as follows: as subsection 101(1)(d) is the only gateway that is referred to in s.103(1), the reference it contains to propensity makes it clear that it is only if the evidence is admitted under s.101(d) that bad character evidence can be used to show a propensity on the part of the defendant to commit the offences of which he is charged or a propensity to be untruthful.
In our view, however, the force of this argument is diminished for a number of reasons. First, s.103(1) prefaces s.103(1)(a) and (b) with the word "include". This indicates that the matters in issue may extend beyond the two areas mentioned in this sub-section. More importantly, while this argument can be advanced in relation to s.101 (d), it can also be advanced in respect of the other parts of sub-section (1), in particular in relation to s.101(1)(a) and (b). In addition, s.101(1) itself states that it is dealing with the question of admissibility and makes no reference to the effect that admissible evidence as to bad character is to have. We also consider that the width of the definition in s.98 of what is evidence as to bad character suggests that, wherever such evidence is admitted, it can be admitted for any purpose for which it is relevant in the case in which it is being admitted.
We therefore conclude that a distinction must be drawn between the admissibility of evidence of bad character, which depends upon it getting through one of the gateways, and the use to which it may be put once it is admitted. The use to which it may be put depends upon the matters to which it is relevant rather than upon the gateway through which it was...
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Subject Index
...54R vHayter [2006] UKHL6 . . . . . . . . . . . . . . . . . . 280R vHenry [2005] 3SCR 609 . . . . . . . . . . . . 243, 244R v Highton [2005] EWCA Crim 1985,[2005]1 WLR 3472. . . . . . . . . . . . . . . . . . . . . 124R vHoey [2007] NICC49 . . . . . . . . . . 169, 277,290R vHorne [1992] CrimL......