Bovell, R. v

J U D G M E N T

1. THE VICE PRESIDENT: These two applications for leave to appeal against conviction have been referred to the Full Court by the Registrar. Although they are unrelated, we have heard them together because they provide further examples of the application of the bad character provisions in sections 98 to 113 of the Criminal Justice Act 2003 which were considered by this Court, differently constituted, in R v Hanson, Pickstone and Gilmore [2005] EWCA Crim 824.

2. These cases afford no basis for further general guidance, but we think it desirable to mention two additional matters. First, it is necessary for all parties to have the appropriate information in relation to convictions and other evidence of bad character, whether in relation to the defendant or to some other person, in good time. That can only be achieved if the rules in relation to the giving of notice are complied with. It is worth mentioning that the basis of plea in relation to an earlier conviction may be relevant where it demonstrates differences from the way in which the prosecution initially put the case. In other words, a mere reference to the statement of a complainant in an earlier case may not provide the later court with the material needed to make a decision as to the admissibility of the earlier conviction. Secondly, it is apparent that difficulties may arise in relation to the preservation and storage of information, having regard to the present provisions of paragraph 5.8 in the Current Code of Practice made under Part II of the Criminal Procedure and Investigation Act 1996. That provides for the retention of relevant material until a convicted person is released from custody, or discharged from hospital, in cases where the court imposes a custodial sentence or a hospital order, or, in all other cases, for 6 months from the date of conviction.

3. It is not feasible for this Court, today, to propose any amendment of that provision. But consideration as to whether it should be amended in the light of the obligations arising from the bad character provisions of the Criminal Justice Act 2003 ought, as it seems to us, to be given, in particular by the prosecuting authorities.

4. We turn to the case of Bovell. He was convicted at Woolwich Crown Court, on 27th January 2005, following a trial before His Honour Judge Moss, of wounding with intent. The following day he was sentenced to five-and-a-half years' imprisonment and an order for forfeiture of golf clubs was made under section 1(2) of the Prevention of Crime Act 1953.

5. In outline, the facts were that, on 5th September 2004, the applicant was involved in an altercation with a shopkeeper, Singh Harjinder Nazran, outside his shop. The culmination of the incident was that Mr Nazran was stabbed three times, twice to the leg and once in the buttock. The applicant ran away before the police arrived. The prosecution case was that the applicant had deliberately stabbed Mr Nazran, intending serious harm.

6. The defence case was that it was the applicant who had been attacked by Mr Nazran and he, the applicant, was acting in self-defence.

7. Mr Nazran gave evidence that the incident occurred after 7 o'clock in the evening. He knew the applicant. The applicant asked for credit. Mr Nazran refused. A little later, the applicant returned. He was aggressive. So much so that the complainant put his daughter, who was with him, inside the shop. The applicant was accompanied by his girlfriend, who had a golf club. The applicant walked up to him, seized the golf club from his girlfriend, which she immediately snatched back, and came towards the complainant face-to-face. According to the complainant, the applicant was ranting and raving and stabbed him in the top part of his left thigh. At first he felt nothing, but, as he turned to get a piece of wood, his leg gave way. Thereupon he was stabbed in the buttock by the applicant.

8. At hospital there were found to be two cuts in his leg. They were stitched together and the wound in his buttock was also stitched.

9. The defence sought to adduce before the jury, under section 100 of the Criminal Justice Act 2003, evidence of the bad character of Mr Nazran. The material then available was a conviction for handling stolen goods in October 1993, when the complainant was 20, for which he was fined and a conviction for robbery, committed in 1993, for which he had been sentenced to 4 years' imprisonment, following a guilty plea. The details of that offence of robbery then provided were that Mr Nazran had attacked his victim, placed a bag over his head, threatened him and stolen his property.

10. The defence submitted that these convictions were relevant and admissible, in accordance with section 100(1)(b), that is to say, they had substantial probative value. It was said that they showed Mr Nazran's propensity to act violently and also went to his credibility.

11. The trial judge concluded that he could not imagine a jury giving any weight to the previous convictions at all. They were over a decade ago, and neither of them involved, on the information then before the court, a weapon. He was not persuaded that they had substantial probative value and he declined to permit evidence in relation to them to be adduced. It is that aspect of the matter which is at the heart of the present application and to it we shall shortly return.

12. To complete our reference to the evidence before the jury, a Mr Doal, who was the complainant's cousin, worked part-time in the shop. He had known the applicant for several years. He described the applicant crossing the road, shouting and moving his arms about, and said he sought to intervene by standing between the applicant and the complainant. He did not hear the substance of the conversation between the two, but he did hear the applicant saying, aggressively, that he would be coming back. A little later, he saw the applicant and his girlfriend, and the applicant at that time was carrying a golf club. He described the applicant and the complainant as "sort of grappling", pushing and shoving. Mr Doal went to break that up but the applicant's girlfriend hit him on the head with the golf club. He saw a knife, with a blade some six inches long, come from the applicant's waistband and he saw the applicant stab the complainant, twice, in the left thigh.

13. A woman called Monica Drummond described hearing the sound of breaking glass and looking out of her window. Some 30 feet away she saw what was clearly the applicant and his girlfriend and she thought they were both carrying golf clubs. She saw the complainant come out of the shop with blood running down his leg, but she did not see the stab which had caused that.

14. The applicant, in evidence, said that he had gone to the shop initially to buy a drink. He was a few pence short and asked if he could owe the balance. The complainant had sworn at him. He, the applicant, had sworn back and called the complainant a "drunken idiot". He had gone to his girlfriend's to get the money he needed. He went back to the shop followed by his girlfriend, who had a golf club, although he did not. He had reached for the golf club because he was afraid of the complainant's dog, but she had snatched it back. Someone had hit him from behind and on the side and he suspected that that was Mr Doal. He had been winded by that. He was slumped over and heard a knife drop. He picked it up and waved it around in front of him at leg height, to frighten the complainant, not to harm him. He did not intend to make any contact with the complainant. He just wanted to stop the hitting. He saw blood on the knife and the complainant running away. He panicked and ran away himself, throwing away the knife. He denied, in cross-examination, having had the knife with him. It had, he said "just appeared".

15. The grounds of appeal challenge the judge's refusal to accede to the defence application to put the complainant's previous conviction and a caution before the jury. As a result of disclosure which has taken place in connection with this appeal, it appears that in the robbery, (committed in 1993, but for which the complainant was not tried until 1996 or 1997) the complainant, had carried a knife. That, as is apparent from the ruling which he gave, was not something which the judge knew about.

16. The submission is made by Mr Anders, on behalf of the applicant, that, had he known about that, the judge might very well have reached a different decision and permitted the jury to hear the evidence in relation to the complainant's robbery conviction.

17. It has also emerged that, in May 2001, the complainant was accused of violence and, in consequence, charged with an offence of wounding with intent, contrary to section 18 of the Offences Against the Person Act. That was a matter which was not known at the time of trial. It is now known that the charge was not, ultimately, pursued. On the day on which he made the allegation against the complainant in the present case, the victim stressed that he did wish to proceed. Two days later, it appeared that there was a dearth of witnesses of the incident about which he complained. Four days after the allegation had been made, the officer in the case expressed concern about the credibility of the victim. The matter was not pursued because the victim, in a written statement, on 18th June, withdrew the allegation against the present complainant, for reasons which, even now, are not known.

18. The submission made by Mr Anders, in relation to that section 18 charge is that it gave rise to evidence within section 100(1) which was substantially probative in relation to the allegation made against this applicant. Therefore, it is said, had the judge known of the material now available, both in relation to the carrying of a knife in the robbery offence in 1993, and the events of 2001, he would have admitted evidence of both those matters in relation to the character of the complainant. Mr Anders submits that, that being so, it is impossible for this Court to be sure of the safety of the conviction. It might be that had the jury known of these matters, their verdict would have been different.

19. In response, on behalf of the Crown, Mr Houlder QC submits that, so far as the 1993 robbery is concerned, the judge's conclusion may or may not have been different had he known of the knife. So far as the events in 2001 are concerned, Mr Houlder submits that they do not give rise to evidence, still less of evidence of substantial probative value, within the terms of section 100(1)(b), and the learned judge, even had he known about those matters, could and would not properly have permitted them to be elicited before the jury.

20. In any event, Mr Houlder submits, had material of either of the kinds now relied on, in relation to the complainant's bad character, been admitted by the judge, it would have been inevitable that the judge would have acceded to a prosecution request, either to adduce evidence of, or to cross-examine the applicant about, his previous convictions. They, as is apparent from his record, were numerous in relation to dishonesty and, more specifically, he had been imprisoned in 1997 for possessing an offensive weapon in a public place and, in September 2001, he had been imprisoned for three separate offences of common assault. Those matters, submitted Mr Houlder, demonstrated not just dishonesty but a propensity to use violence and the possession of an offensive weapon. Had that material been before the jury who had, also known of the complainant's 1993 conviction for robbery and the accusation of section 18 wounding in 2001, their verdict would have been no different. There is no ground to question the safety of the conviction when there is also borne in mind the significant other evidence in the case, in particular, confirmation of the complainant's account by both Mr Doal and Miss Drummond. The jury had seen all the witnesses and, of particular significance, one of the wounds sustained by the victim was to his left buttock which, Mr Houlder submits, is an unlikely source of wounding if the applicant had been acting as he claimed, either accidentally or in self-defence. Furthermore, the applicant admitted that he himself used insulting words towards the complainant and the complainant's cousin. The jury would, inevitably, have come to the same conclusion. In any event, submits Mr Houlder, the events in 2001 would not have been admitted in evidence by the trial judge, even had he known about them.

21. As it seems to us, it may be that the judge's decision with regard to the admissibility of the robbery offence, in 1993, might have been different had he known that the complainant had then been carrying a knife. It is to be noted, however in relation to that offence, that, notwithstanding he was only prosecuted for it some years later, when fingerprint evidence come to light, the complainant immediately admitted his guilt. This would have been relevant to the judge's decision. It seems to us to be unlikely in the extreme that the judge, had he known of the events in 2001, would have admitted the allegation of a section 18 offence made against the complainant. We say that, first, because we entertain considerable doubt as to whether the mere making of an allegation is capable of being evidence within section 100(1). As the allegation was, in the circumstances which we have identified, withdrawn, our doubt on this aspect is increased.

22. It is apparent from the circumstances, as we have summarised them, that if there was to be any question of the section 18 allegation being admitted before the jury, it would necessarily have given rise to investigation of the other subsequent matters, including the aspersions on the credibility of the victim, the want of independent confirmation of his account, and the fact that he had withdrawn the allegation. An excursion into those satellite matters is, as it seems to us, precisely the sort of excursion which, as was suggested in paragraph 12 of the judgment in Hanson , a trial judge should be discouraged from embarking upon. All of this adds to the unlikelihood of the judge permitting evidence of the 2001 events even if they had been known about at trial.

23. As it seems to us, even if the judge had admitted the complainant's conviction for robbery and even if, which for the reasons we have given, we think highly unlikely, he had admitted the allegation of section 18 wounding, we are entirely unpersuaded that that might have affected the jury's verdict. We say that in part because of the inevitable consequences of the jury learning of the applicant's record and in part because of the other powerful evidence against the applicant.

24. Despite Mr Anders' able submissions, we are unpersuaded that it is arguable that Bovell's conviction is unsafe.

25. We turn to Dowds. On 28th January 2005, at Nottingham Crown Court, following a trial before Miss Recorder Dix-Dyer, he was convicted of burglary and he was subsequently sentenced to 2 years' detention in a young offender institution. A co-accused called Travis Leleu, had pleaded guilty on 26th January and he received a similar sentence.

26. The facts were that, at about 8 o'clock on the evening of 30th August 2004, a house in Beeston was burgled. Entry was gained by the co-accused using a key. There was no evidence that anything had actually been stolen; indeed, the Crown's case was that, in consequence of that entry, the applicant had left some items there, in particular, an orange and brown shoe box containing trainers and a poster. It appeared that the co-accused was claiming squatter's rights and had left a bag of his own in the premises.

27. The applicant had been seen, by someone living near the burgled house, carrying the box, prior to leaving it in the premises.

28. It was the prosecution case that the burglary enterprise was joint, involving both the applicant and the co-accused. The applicant's defence was that he had never gone into the house and he had no idea how the items connected to him had come to be inside.

29. The applicant had, on two previous occasions, pleaded guilty to an offence of burglary. It is at the heart of this appeal whether the learned Recorder ought properly to have permitted evidence in relation to those convictions, dating from when the applicant was aged 16 and 18 (he now being 19) to be before the jury.

30. It was conceded at trial by Mr Hurst, then as now appearing for the applicant, that in the course of giving evidence, the applicant made an attack on another person's character, within section 101(1)(g) of the Act. That came about in the following way. In the course of his evidence in-chief, Mr Hurst asked the applicant a question, which in his submission to us, he described as intended to elicit part of the background, but which in fact elicited from the applicant an answer which Mr Hurst had not been expecting. The answer was, in effect, that, on the day before the burglary of which the applicant was accused, his co-accused, Leleu, had committed another burglary.

31. The submission which Mr Hurst makes is that, notwithstanding this was undoubtedly an attack on another person's character, the learned Recorder, in the exercise of her discretion, when addressing the fairness of the proceedings under section 101(3) ought not to have admitted evidence of the applicant's two convictions for burglary. The sole basis advanced by Mr Hurst for the claim of unfairness in admitting the evidence is that the defendant's motive in giving the answer which he did may not have been to attack the co-accused.

32. As it seems to us, there are two difficulties with that proposition. First, in our judgment, it cannot have been Parliament's intention that, in order to assess "adverse effect on the fairness of the proceedings", a trial judge should conduct some sort of investigation on the voir dire or otherwise as to why a defendant gave the answer which he did. Impact on the fairness of the proceedings must be assessed, in our judgment, by reference to matters other than what the particular defendant's intention in giving an answer may or may not have been. Secondly, having regard to the account of the applicant's evidence set out in detail, in particular, at pages 20 and 21 of the transcript of the summing-up, it is difficult to the point of impossibility to accept that the defendant's motive in giving the answer which he gave was not to cast an aspersion upon his co-accused. The applicant gave an account of what occurred, including his co-accused kicking in the door of the premises, and he, the applicant, storming off because he did not like what the co-accused was doing. For a person with two fairly recent previous convictions for burglary, that is an account which, to put it no higher, would not seem to sustain the suggestion that the applicant's reason for the answer he gave was not to be critical of the accused. That is particularly so, bearing in mind that the whole thrust of the applicant's defence was that only the co-accused was involved in this burglary and he, the applicant, was not. It is, in that context, perhaps worth commenting that evidence in relation to the applicant's bad character would, as it seems to us, have been admissible, under section 101(1)(f), to correct a false impression given by the defendant. It is unnecessary further to explore that aspect of the matter. But it suffices to say that, in our judgment, despite Mr Hurst's submissions, there is no basis for suggesting that the learned Recorder exercised her discretion under the statute in a way which was other than correct. That being so, Dowds' application does not, in our judgment, afford any arguable ground for challenging the safety of his conviction. Accordingly his application is, likewise, dismissed.