R v Nicky Eastlake; R v Kevin Scott Eastlake
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOOPER,DAME HEATHER STEEL |
| Judgment Date | 08 February 2007 |
| Neutral Citation | [2007] EWCA Crim 603 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 2006/05378/B4 |
| Date | 08 February 2007 |
[2007] EWCA Crim 603
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Lord Justice Hooper
Mr Justice David Clarke and
Dame Heather Steel DBE
No. 2006/05378/B4
2006/05379/B4
MR A J WALKER appeared on behalf of THE APPELLANT NICKY EASTLAKE
MR R BLOOMFIELD appeared on behalf of THE APPELLANT KEVIN EASTLAKE
MR G GATLAND appeared on behalf of THE CROWN
Thursday 8 February 2007
I will ask Dame Heather Steel to give the judgment of the court.
DAME HEATHER STEEL
On 29 September 2006, in the Newcastle Crown Court before His Honour Judge Faulks and a jury, the appellants were convicted of two offences. Count 1 charged an offence contrary to section 20 of the Offences against the Person Act 1961, the particulars being that on 25 December 2005 they unlawfully inflicted grievous bodily harm upon Craig Mitchell. Count 2 charged an offence contrary to section 47 of the Offences against the Person Act 1861, the particulars being that on 25 December 2005 they assaulted Martin Platt thereby occasioning him actual bodily harm. Count 3 of the indictment was severed and on the direction of the judge the jury convicted Nicky Eastlake of breaching an Anti-Social Behaviour Order made under section 1 of the Crime and Disorder Act 1998 on 22 November 2004 by Tynedale Magistrates' Court. On 19 October 2006, they were each sentenced to 18 months' detention concurrently in a young offender institution on counts 1 and 2. Nicky Eastlake was sentenced to a concurrent term of six months' detention in a young offender institution in respect of count 3.
The appellants appeal against their convictions by a certificate from the trial judge that the case is fit for appeal on ground 1, and by leave of the single judge in respect of grounds 2 and 3 which concern the appellant Nicky Eastlake.
The first ground of appeal, as set out in the certificate of the trial judge, reads:
“Under the provisions of section 101(1)(d) and section 103 of the Criminal Justice Act 2003 should evidence of a relevant propensity to commit offences be capable of supporting the accuracy and reliability of identification evidence when identification is the only issue in the case?”
The single judge gave leave in respect of grounds 2 and 3, which concern Nicky Eastlake. Ground 2 is that the judge erred in not withdrawing the case from the jury after a submission of no case was made in accordance with R v Turnbull [1977] QB 224; and ground 3 is that the judge erred in not referring adequately in his summing-up to the weaknesses and circumstances of the identification of the appellant. We are grateful to Mr Bloomfield on behalf of the appellant Kevin Scott Eastlake and Mr Walker on behalf of the appellant Nicky Eastlake, and also to Mr Gatland on behalf of the prosecution for their submissions and for the authorities which have been supplied to this court.
The brief facts of the offences are that at about 11.15pm on 25 December 2005 a group of seven teenagers, which included the two complainants, Craig Mitchell and Martin Platt, were walking along Elsdon Avenue in Seaton Delaval in Northumberland. They had been to a party and were making their way home when the encountered a group of three males, two of whom assaulted Martin Platt (aged 16) and, when he attempted to intervene, Craig Mitchell. Martin Platt suffered two black eyes and a swollen jaw. Craig Mitchell had one tooth completely knocked out and two further teeth were broken. He required extensive dental treatment.
After the attack, all three males ran off, two in one direction and one in another. One of the three males had shouted at one of the attackers, “Come on, leave it Scott”, or words to that effect. There was no dispute that one of the three males had stood and watched the attack and took no part in the assaults.
The appellants were arrested on 26 January 2006. In their respective interviews they gave accounts that they had spent the evening in a social club on Elsdon Avenue before walking together to their home addresses some two or three minutes away from the club. Both stated they were home with their family from about 10.30pm to 10.40pm. Kevin Scott Eastlake agreed that he was known as Scott.
On 10 February 2006, a series of identification procedures were carried out with five witnesses from the group of seven. Ross Mitchell, who was aged 13 and the brother of the complainant Craig, identified the appellant Nicky Eastlake; and Jessica Platt identified Kevin Scott Eastlake.
At the trial both appellants relied on alibi and asserted that the identification of them by witnesses was mistaken. There was no other direct evidence against them. At trial they each gave and called evidence in support of their defence. No complaint is made by either appellant in respect of the directions given to the jury as to how they should approach the alibi evidence.
The Crown sought leave to adduce evidence of bad character of the appellants by way of their propensity for violence pursuant to section 101(1)(d) and section 103(1)(a) of the Criminal Justice Act 2003. The judge ruled that the evidence should be adduced.
The first ground of appeal which is pursued on behalf of both appellants is the one on which the trial judge (unusually) issued his certificate that the case was fit for appeal. Both appellants attack the judge's decision to admit into evidence, pursuant to section 101(1)(d) and 103 of the Criminal Justice Act 2003, the previous convictions of the appellants.
In the case of each brother the previous convictions to which the bad character application related were for common assault. Scott Eastlake had four such convictions: one on 12 January 2004 for two offences committed in an incident in the street on 10 November 2003, one on 6 April 2004 for an offence of street violence on 6 February 2004, and one on 16 November 2004 for an offence of street violence committed with his brother on 13 August 2004. Nicky Eastlake was convicted of one such offence on 7 June 2004 for an assault committed on 17 April 2004, and was convicted in the youth court on 16 September 2004 for an offence committed with his brother in August. Although Nicky Eastlake had other previous convictions, they were not sought to be introduced into evidence.
Section 101(1)(d) of the Criminal Justice Act 2003 reads as follows:
“(1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if—
….
(d) it is relevant to an important matter in issue between the defendant and the prosecution
….”
That section is supplemented by section 103 which, insofar as it is relevant to this case, reads as follows:
“(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;
….
(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—
….
(b) an offence of the same category as the one with which he is charged.”
Mr Bloomfield draws attention to subsection (3) which reads:
“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.”
The argument advanced to the trial judge was essentially based on the judgment in R v Hanson and Others [2005] 2 Cr App R 21. At paragraph 10 Rose LJ said:
“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 is to be noted that the 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 to 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.”
It was submitted that this was a weak case, being based solely on the identification of each of the two brothers by a single witness and that the Crown sought to bolster a weak case with bad character evidence, which would distract the jury from their task of dispassionately evaluating the reliability of the identification evidence. The judge summarised the argument and ruled as follows:
“The application is made under gateway (d), the propensity gateway.
The prosecution put their reasoning in this way. This is an identification case. One prosecution witness picked out Kevin Scott...
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