R v Weir (Antony Albert) and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kennedy |
| Judgment Date | 11 November 2005 |
| Neutral Citation | [2005] EWCA Crim 2866 |
| Docket Number | Case No: 2005/01956/C4, 2005/03314/C1, 2005 /02337/C3,; 2005/02524/D2, 2005/01877/C2 and 2005/01975/C2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 11 November 2005 |
[2005] EWCA Crim 2866
Lord Justice Kennedy
Mr Justice Bell and
Mrs Justice Dobbs
Case No: 2005/01956/C4, 2005/03314/C1, 2005 /02337/C3,; 2005/02524/D2, 2005/01877/C2 and 2005/01975/C2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Strand, London, WC2A 2LL
Mr S. James for the appellant Weir
Mr R.Vardon for the Crown in Weir
Mr R. Kovalevsky and Mr P. Mylaganam for Somanathan
Miss G. Etherton for the Crown in Somanathan
Mr A.R.H. Urquart for Yaxley-Lennon
Mr N. Lobbenberg for the Crown in Yaxley-Lennon
Mr F. Chamberlain for Manister
Mrs A. Vigars for the Crown in Manister
Mr D. Kapur for Hong Qiang He
Mr A. Dalgleish for De Qun He
Mr L. Mabley for the Crown in He & He
Introduction
We heard these five appeals consecutively on 20 th and 21 st September 2005. They were listed together because they raised points in relation to the Bad Character provisions of the Criminal Justice Act 2003 which have not previously been considered by the Court of Appeal, but the points raised are different in each case. There is no overlap. We therefore deal with the appeals separately in judgments to which all three members of the court have contributed, but it is convenient to begin by setting out those parts of the Act which are relevant in relation to one or more of the appeals.
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 then 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.
Abolition of common law rules
(1) the common law rules governing the admissibility of evidence of bad character in criminal proceedings are abolished.
(2) ……
Non-defendant's bad character
(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if –
(a) it is important explanatory evidence,
(b) it has substantial probative value in relation to a matter which –
(i) is a matter in issue in the proceedings, and
(ii) is of substantial importance in the context of the case as a whole,….
Defendant's bad character
(1) In criminal proceedings evidence of the defendant's bad character is admissible if, and only if –
(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
(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.
"Important explanatory evidence"
For the purposes of section 101(1) 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.
"Matter is issue between the defendant and the prosecution"
(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.
(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.
"Evidence to correct a false impression.
(5) Evidence is admissible under section 101(1)(f) only if it goes no further than is necessary to correct the false impression.
Court's duty to give reasons for rulings
(1) Where the court makes a relevant ruling –
(a) it must state in open court (but in the absence of the jury, if there is one) its reasons for the ruling;
(b) If it is a magistrates' court, it must cause the ruling and the reasons for it to be entered in the register of the court's proceedings.
(2) In this section "relevant ruling" means –
(a) a ruling on whether an item of evidence is evidence of a person's bad character;
(b) a ruling on whether an item of such evidence is admissible under section 100 or 101 (including a ruling on an application under section 101(3);
(c) a ruling under section 107.
Interpretation of Chapter 1
(1) In this Chapter
"misconduct" means the commission of an offence or other reprehensible behaviour;
On 21 st March 2005 in the Crown Court at Manchester this 44 year old appellant was convicted of sexual assault by touching a girl under the age of 13, contrary to section 7 of the Sexual Offences Act 200He was subsequently sentenced to an extended sentence, the custodial element of which was 15 months imprisonment. As the sentence was in excess of 30 months he is required to comply with the notification provisions of Part 2 of the Act for an indefinite period, not, as stated by the Judge when sentencing, for ten years, but that is not a matter with which have been concerned when considering his appeal.
The alleged victim J was a ten year old girl living in the same street as the appellant, who lived with his partner and her children C and T. J and C were friends, and sometimes J slept at C's home. J said that when she did so on Saturday 4 th July 2004 the appellant assaulted her by touching her vagina over her night clothes. According to J he had exposed himself to her on four or five previous occasions, and on Sunday 5 th July he told her that he used to pay girls £5 to watch him masturbate, and asked her if she wanted to watch. She refused, but on that Sunday when he took the children swimming he peeped into the cubicle when she was naked, and then forced three pounds into her hand. J complained to her mother on the following Sunday, and the police were then informed. When interviewed the appellant denied that anything improper took place. He had not exposed himself to the girl, and on Saturday 4 th July his partner was away but his friend Dean Allen was with him, and he had only gone into the children's bedroom to check that all was well. On the Sunday when he took the children swimming he had said nothing about masturbation. He had not spied on J, and although he did give her some money it was only to purchase food from the café. His case in relation to the Saturday evening was supported by Dean Allen, who detected no abnormality.
On 16 th February 2005, at a plea and directions hearing, the prosecution applied to adduce evidence that on 9 th August 2000 the appellant was cautioned for taking an indecent photograph of a child, contrary to section 1 of the Protection of Children Act 1978. The application was granted, and it is that decision which is challenged in this appeal. It is common ground that the relevant statutory provisions are those to be found in the sections 101( 1)(d), 103(1)(a), 103(2)(b) and 103(4(b) of the Criminal Justice Act 2003.
On 15 th December 2004 the Secretary of State exercised his powers under section 103(4)(b) by making the Criminal Justice Act 2003 (Categories of Offences) Order 2004 which came into force at the same time as sections 98 to 110 of the 2003 Act. Paragraph 2 of the Order provides -
(1) The categories of offences set out in Parts 1 and 2 of the Schedule to this Order are hereby prescribed for the purposes of section 103(4)(b) of the 2003 Act.
(2) Two offences are of the same category as each other if they are included in the same Part of the Schedule.
Part 1 of the Schedule sets out offences in the theft category. Part 2 is headed "Sexual Offences (Persons under the age of 16) Category". It includes the section 7 offence with which the appellant was charged before the Crown Court, but contains no reference to the offence in respect of which he had received a caution.
Mr James, for the appellant, therefore submits that as the offence in respect of which the caution was administered was not, for the purposes of section 103(2)(b) an offence of the same category as the one with which he was charged the evidence of the caution should not have been admitted. The Order, Mr James submits, is plainly selective. It does not include every possible...
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