R v Powell
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 08 November 1985 |
| Judgment citation (vLex) | [1985] EWCA Crim J1108-11 |
| Docket Number | No. 4433/C/85 |
| Court | Court of Appeal (Criminal Division) |
| Date | 08 November 1985 |
[1985] EWCA Crim J1108-11
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Stuart-Smith
and
Mr. Justice Simon Brown
No. 4433/C/85
MR. N. LAMBERT appeared on behalf of the Appellant.
MR. L. LASSMAN appeared on behalf of the Crown.
REASONS FOR JUDGMENT
Mr. Justice Stuart-Smith is not able to sit with us this morning. This is the judgment of the Court.
On 8th October last we dismissed this appeal against conviction. We now give reasons for that decision.
On 19th July 1985 in the Crown Court at Snaresbrook before His Honour Judge Paynter-Reece and a jury, the appellant was convicted by a majority of ten to two of knowingly living wholly or in part on the earnings of prostitution contrary to section 30 of the Sexual Offences Act 1956.
The appellant was the owner of premises consisting of a shop with residential accommodation above at 90 Mountgrove Road, London, N.5. The appellant ran his business from the shop. The residential accommodation was occupied by tenants, save for one room on the first floor, used by the appellant as a stock room.
Between 15th and 23rd August 1983 two police officers kept observation on the premises. It was the Crown's case, based upon the evidence of the police officers, that on frequent occasions the appellant was seen to receive money from prostitutes who took their customers to a first-floor room; that prostitutes solicited passers-by in the presence of the appellant; he was seen to warn them of the presence of police in the area. He was also seen to tell prostitutes where to stand for the purpose of soliciting to separate prostitutes who were having an argument; to give a prostitute the key to a side door leading to the first floor room.
The defence was that the evidence of the police officers was a total fabrication. The appellant gave evidence that he had never received money from prostitutes or exercised control over them. He accepted that prostitutes had used his stock room, but that, he asserted, had been without his consent and despite his best endeavours to prevent them so doing. He said that he had no need to take money from prostitutes. He had come to this country in 1955 and since then had worked hard to build up his position as a property owner, owning 25 properties in the area, from which he received substantial rent and had £7,000 in the bank. He said that in August 1983 he had been on bail and that he realised that the police would watch him and therefore he would not have dreamt of taking money from prostitutes. When asked why he had not complained to the police about prostitutes using his stock room, he said that when previously he had complained to the police they had arrested him.
At the conclusion of his evidence in chief counsel for the Crown submitted that he should be entitled to cross-examine the appellant on his previous convictions.
The material words of section 1(f) of the Criminal Evidence Act 1898, upon which he relied, are as follows: "A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless – (i)….. (ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution…..".
It is plain, and indeed is now conceded on behalf of the appellant, that the appellant came within both limbs of the subsection. He had both put his own character in issue and had also attacked the police witnesses, alleging that they had lied on oath.
The convictions which the Crown wished to put to the appellant were first, that in 1969 he had been convicted on two charges of allowing his premises to be used for the purposes of prostitution; and secondly, that there had been a similar conviction in May 1984, when he was sentenced to three months' imprisonment suspended for two years and fined £250, that being the matter in respect of which he was on bail in August 1983.
Mr. Lambert on behalf of the appellant submitted that in the exercise of his discretion the learned Judge should have refused to permit cross-examination as to those convictions, because the probative value was far exceeded by the prejudicial effect of the evidence; and the jury would have the greatest difficulty in relating the evidence strictly to the issue of credibility, rather than concluding that the appellant had a propensity to commit offences involved with prostitution.
The learned Judge, in the course of his ruling, indicated that if the application had been made solely on the grounds that the defence had involved an attack upon the police evidence, he would not have acceded to the Crown's submission. In taking that view he was undoubtedly influenced by the recent decision of this Court in R. v. Watts (1983) 77 Cr. App. R. 126. However he went on to hold that since the appellant had gone much further than that, and put his own character in issue in the way we have set out, it would give the jury a wholly false impression if they were not to know of the convictions. He accordingly exercised his discretion in favour of the Crown.
The learned Judge gave a clear direction as to the significance of the evidence of previous convictions, telling the jury that the evidence went solely to credibility, and they must not consider that he, the defendant, had a tendency or disposition to commit the offence charged. Mr. Lambert could not properly, and did not, make any complaint about the summing up. He submitted simply that the learned Judge wrongly exercised his discretion. He recognised the difficulty that he faced in seeking to persuade this Court to interfere with the exercise of the Judge's discretion, but in his submission the facts of this case were special. He sought to support the Judge's view that the attack on the police was not sufficient on its own to allow the cross-examination.
He further contended however that since there was evidence that the appellant was habitually in the company of prostitutes and (if the police evidence was accepted) exercised control and direction over their movements, the burden was upon him, by virtue of section 30(2) of the Sexual Offences Act 1956, to prove on the balance of probabilities that he was not knowinly living on the earnings of prostitution. He maintains that it was necessary in order to discharge this burden that the appellant should give evidence to show that he had other sources of income and funds, namely his property and job as a shopkeeper and his balance of £7,000 in the bank. He shrank from the proposition that whenever the onus is cast upon the defence to establish some defence, cross-examination as to previous convictions should always be refused. He contended that it is a matter of the greatest weight when the Judge is exercising his discretion, and that the trial Judge did not give sufficient weight to it.
Much of the difficulty in the present case springs from two decisions of this Court, to each of which I was a party. They are R. v. Watts, to which reference has already been made, and R. v. Braithwaite and John (unreported), decided on 24th November 1984, reference 4459/A/83. Both were ex tempore judgments. In neither case were the speeches of their Lordships in Selvey v. Director of Public Prosecutions (1970) A. C. 304 drawn to the attention of the Court, nor, regrettably, did the Court have them in mind when giving judgment.
Giving the judgment of the Court in Watts I referred to the speech of Viscount Sankey in Maxwell v....
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