Edwards & Ors, R v

J U D G M E N T

1. THE VICE PRESIDENT: These four cases have been listed and heard together because they provide further examples to add to those previously considered by this Court in R v Hanson & Ors [2005] EWCA Crim 824 and R v Bovell & Dowds [2005] EWCA Crim 1091 of the admissibility of bad character under sections 98 to 113 of the Criminal Justice Act 2003.

2. Because of grounds which have been advanced in the cases of Fysh and Duggan in particular, in relation to alleged noncompliance in the respective summings-up with observations made by this Court in paragraph 18 of Hanson , it is convenient, before turning to the individual cases, to make some general observations in relation to that part of that judgment.

3. The guidance proffered in paragraph 18 of Hanson as to what a summing-up should contain was, as is apparent from the last sentence of the paragraph, not intended to provide a blueprint, departure from which will result in the quashing of a conviction. What the summing-up must contain is a clear warning to the jury against placing undue reliance on previous convictions, which cannot, by themselves, prove guilt. It should be explained why the jury has heard the evidence and the ways in which it is relevant to and may help their decision, bearing in mind that relevance will depend primarily, though not always exclusively, on the gateway in section 101(1) of the Criminal Justice Act 2003, through which the evidence has been admitted. For example, some evidence admitted through gateway (g), because of an attack on another person's character, may be relevant or irrelevant to propensity, so as to require a direction on this aspect. Provided the judge gives such a clear warning, explanation and guidance as to use, the terms in which he or she does so can properly differ. There is no rigid formula to be adhered to. That said, there is, in the case of Chohan, a summing-up by Judge Mort which seems to us to be almost impeccable and which could serve as a model in many cases where evidence of bad character is admitted. We shall rehearse the relevant passage in that summing-up when dealing with Chohan's application.

4. We turn, first, to the case of Edwards. On 24th February 2005, at Manchester Crown Court, following a trial before Mr Recorder Finestein, this applicant was convicted on two counts of common assault, on counts 1 and 2, and of having a bladed article in a public place on count 4. He was acquitted on count 3, of having an offensive weapon. He was sentenced to 2 months' imprisonment on each of the counts of common assault consecutively to each other, and to a further 8 months consecutively for possession of a bladed article. His total sentence was therefore 12 months' imprisonment, and an order was made under section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 for forfeiture of the knife. His applications for leave to appeal against conviction and sentence were referred to the Full Court by the Registrar.

5. The facts were these. On 30th April 2004 two police officers stopped the applicant, who was driving a motor vehicle along Queen's Road, Manchester. They asked to see his licence and searched his car. They discovered a bottle of ammonia, which gave rise to count 3, in relation to which, as we have said, he was acquitted. The officers sought to arrest the applicant. A scuffle ensued. The officers and the applicant sustained minor injuries. The applicant was taken to a police station where he voluntarily handed over a lock-knife, which gave rise to count 4. It was the prosecution case that the applicant had assaulted the officers while they were lawfully seeking to arrest him and that he had no good reason for being in possession of the lock- knife. It was the defence case that the police officers had carried out an unprovoked assault on the applicant. He claimed to have a good reason for being in possession of the lock-knife, namely, he had used it on a fishing trip a couple of days previously, and had then completely forgotten about it.

6. The first of the officers to give evidence, Police Constable Smithwaite, described the applicant swearing at him and being generally obstructive when he, the officer, reached his car. There was a struggle inside the car as the other officer, Constable Bryson, went to get the keys. Then there was a struggle outside the car, during which the officers restrained the applicant by getting him onto the floor. The officer admitted in cross-examination that, during this altercation, he had himself sworn at a passerby. Constable Bryson gave a similar account of the aggressive and unco-operative nature of the applicant's behaviour. A further officer described the knife as being located, not as the applicant claimed on his belt, but down the front of his trousers inside his jeans.

7. In interview, the applicant essentially said nothing in response to questions; he read a prepared statement, denying the offences and saying he had been mistreated by the police.

8. At the outset of the trial, the prosecution sought to adduce evidence of the applicant's previous convictions for robbery and dwelling-house burglary in 1992 in relation to the issue of credibility pursuant to section 101(1)(d). The Recorder ruled, at that stage, that, due to the age of the offences, it would not be right to allow that material to go before the jury. However, during the course of the prosecution case, the defence mounted a severe attack on the prosecution witnesses. Accordingly, the prosecution case made a further application to introduce evidence of bad character, under gateway (g) because of that attack.

9. On behalf of the defence, Miss Arshad accepted that the defendant had attacked the character of the two prosecution witnesses. But she invited the Recorder to exclude the evidence under section 101(3) on the basis that, by reason of the length of time, it would be unjust for the evidence to be admitted, bearing in mind that the offences were 13 years old; and their prejudicial effect, it was said, would outweigh their probative value. The Recorder ruled that, in view of the sustained attack on the character of the police, the jury was entitled to know about the 1992 conviction and he would direct the jury to give such weight to them as they saw fit.

10. The applicant gave evidence. He said that he was gratuitously and offensively treated by the police, whereas he had not been guilty of any bad conduct towards them. They had assaulted him and had caused him pain in the manner they applied and pulled down the handcuffs. Constable Smithwaite had told a passerby to "fuck off". He said the lock-knife was not his. Two days earlier it had been handed to him by a friend, on a fishing expedition to cut the lines. He had hooked the knife onto his jeans (the ones which he was wearing at the time of his arrest). It had been there for two days, and he had simply forgotten about it. He called his friend to confirm that he was the source of the knife. A young woman also gave evidence of the manner of application of the handcuffs by the police officers.

11. In passing sentence, the Recorder said that the applicant had behaved in a wholly aggressive way in assaulting the police, acting in their duty. Fortunately, the injuries were not serious, but the offences were so serious that only a custodial sentence was appropriate.

12. The appellant, who is 34 years of age, has a large number of previous convictions since 1991, mainly for driving and theft related offences. But, in 1992, as we have indicated, he was convicted of robbery and burglary from a dwelling and also assault occasioning actual bodily harm.

13. The submission which is made to this Court by Miss Arshad, on behalf of the appellant, is confined to a single ground of appeal, namely, that the previous 1992 convictions ought not to have gone before the jury. She submits that, when he ruled against the first application to admit that evidence under gateway (d), the Recorder had expressed the view that to admit that evidence would have so adverse an effect on the fairness of the proceedings that it ought not to be admitted at that stage. It is apparent from the transcript of the first ruling on 21st February, in Volume 1A, that the Recorder, having referred to the offences being committed 13 years ago, said at page 2F:

"...to allow that in at this stage would seem to be on balance to have such an adverse effect on the fairness of the proceedings that the court ought not to admit it..."

He went on to say:

"...I have to balance the type of conviction that would go before the jury as against the allegation that the defendant faces, and in the context of this case, there are offensive weapons, be it CS gas or a knife and incidents of effectively common assault on police officers, and to allow that in for these offences it seems to me would have an adverse effect on the fairness of the proceedings, but more fundamental as I have indicated, I think it is the age of the conviction which plainly must be taken into account, and, having regard to the balancing act that I have to do,... I think it is perfectly clear on the authorities that these should not be allowed in, and so I do not allow them in."

That conclusion as to the impact of the 1992 matters on the fairness of the proceedings, Miss Arshad submits, was a finding which bound the Recorder when the later application was made, following the attack upon the prosecution witnesses.

14. As it seems to us, the difficulty with that submission is that the fairness of the proceedings and the impact on it of admitting the evidence, has to be gauged at the time at which the application is made and by reference to the gateway under which admissibility is sought. At the initial stage there had been no attack on the character of the prosecution witnesses. In that regard, when dealing with the matter at the time of the second application, the Recorder, as appears from Volume 1 of the transcript, at page 21F said this:

"I have come to the conclusion that there is a difference now between the prosecution arguments, the difference being a sustained attack upon the character of the police, and it seems to me that, even though these convictions are of a serious nature and of some age, the jury are entitled to know about this conviction, that I think they would be misled seriously if they did not know of this matter."

In our judgment, that was a conclusion which was not only open to the Recorder, it is one which he was, in the circumstances as we have described them, right to reach.

15. The second submission made by Miss Arshad is that, in admitting the evidence under gateway (g) because of its relevance to credibility and permitting the jury to know of a conviction in relation to the defendant's capacity to tell the truth, the learned Recorder adopted the wrong approach. He ought, Miss Arshad submits, to have admitted, rather than this conviction for a very serious offence of dishonesty, different convictions to be found in the applicant's record in more recent years.

16. The difficulty with that submission, as it seems to us, is that the convictions in more recent years included four convictions for offences of violence. Had the Recorder admitted those, it might well have been said that they had a significantly prejudicial effect against the defendant when he was facing charges of using violence: an impact which far outweighed the probative value of those offences. It is therefore, in our view, an impossible contention that the learned Recorder was wrong to admit an offence of dishonesty, but not to admit offences of violence. In those circumstances, there is, as it seems to us, no arguable ground of appeal in relation to conviction so far as Edward's is concerned. That application is refused.

17. In relation to sentence, Miss Arshad submits, first, that, bearing in mind the improvement in recent years in the defendant's behaviour, compared with more distant features of his criminal past, it was particularly incumbent upon the Recorder, before sentencing, to obtain a pre-sentence report. This he declined to do. Secondly, Miss Arshad submits, by reference to the guideline case of R v Poulton & Celaire [2003] 1 Cr App R(S) 610, a sentence of 8 months' imprisonment, in relation to the bladed article, was significantly too long. Thirdly, she submits that it was wrong in principle to impose consecutive sentences for the assaults on the two police officers which essentially arose out of the same incident.

18. Each of those three points, in our judgment, is well made. Having regard to their combined impact, we indicated that leave to appeal against sentence would be granted, and we now quash the total sentence of 12 months imposed by the learned Recorder, and substitute for it a total sentence of 9 months, made up as follows: for each of the offences of common assault, the sentence will be 3 months, but those sentences will run concurrently with each other. For the offence in relation to the bladed article, the sentence will be 6 months consecutively to the 3 months on the other two counts. The appeal against sentence is therefore allowed as we have indicated.

19. We turn to the case of Fysh. On 9th February 2005 at Norwich Crown Court, following a trial before His Honour Judge Worsley, this appellant was convicted of having an offensive weapon, on count 2, and common assault on count 3. On 23rd March he was sentenced to 9 months on count 2 and 5 month concurrently on count 3. The total sentence was therefore 9 months' imprisonment. He appeals against conviction by leave of the Single Judge.

20. The facts were these. On 18th September 2004 the appellant went to the home in South Lynn of a man called Nicholas Moore. The appellant's friend drove him there in a Rover car, but remained in the car throughout. The appellant knocked on Mr Moore's door. He answered. The appellant accused Mr Moore of assaulting his son. Voices were raised. Mr Moore and his wife said that the appellant struck Mr Moore with some form of cosh, made from a sock containing something hard. Two 999 calls were made during the incident. The first by Mrs Moore, in which she at first described the weapon as a baseball bat, but, later in the conversation, said it was a sock containing, possibly, coins. There was a similar confusion in a second similar call.

21. The woman police constable called to the incident described Mr Moore as having an injury to the right side of his face, by his eye. There was redness, swelling and a small cut but she conceded that she had got the location wrong when she was cross-examined.

22. The appellant was known to the Moore family as, twenty years earlier, he had been engaged to Mr Moore's sister.

23. When the appellant was arrested and interviewed he said nothing. He was, however, picked out on identity parades by four witnesses. It was the prosecution case that the appellant had a cosh of the character which we have described and, when he confronted Mr Moore at his house, he deliberately struck out at him twice, and one of those blows struck Mr Moore's eye causing injury. It was the defence case that the appellant had been at Mr Moore's home on this day, but he had not touched Mr Moore with a weapon or anything else.

24. The judge indicated that, whether the appellant gave evidence or not, he would have to consider whether bad character was admissible, and he contemplated that it might be, under gateways (g) and/or (d) of section 101. He also indicated that he would not go back beyond 1986, in relation to the appellant's record, in the event that he allowed evidence to be admitted of previous convictions.

25. The evidence for the prosecution came from Mr Moore and Mrs Moore and from Stephen Coe and Spencer Canon who had been sitting in the kitchen of the Moores' house. Mr and Mr Moore and Stephen Coe all described the appellant as using a weapon of the kind which we have described or, so far as Stephen Coe is concerned, he said he saw it raised above the appellant's head, though he did not actually see him strike Mr Moore. Spencer Canon also referred to the appellant holding what he described, initially, as a rounders bat, but later, after discussion with others, he realised was an old sock.

26. The Crown applied to adduce previous conviction of the appellant, not by any means all of them, but those starting with a conviction for common assault in 1999. The application also related to an offence of theft by shoplifting, in May 2002, making a false statement in order to obtain benefit or payment, including three offences taken into consideration, in August 2002, battery, in March 2002 and a further offence of theft by shoplifting in August 2002.

27. The learned judge ruled that these convictions were evidence of bad character, admissible under one of the gateways, in particular, gateways (d) and (g) and he concluded that there was no basis for excluding those convictions from being admitted.

28. The learned judge concluded that propensity to untruthfulness was an issue under gateway (d).

29. The submission which is made by Mr Lynn, on behalf of the appellant is that the judge was wrong to permit this evidence to be adduced. Mr Lynn points out that there was some confusion at the time of trial in February as to the rules applicable. The new Criminal Procedure Rules had not come into force and the old Crown Court rules, in particular rule 23 E3, appeared to govern the position. Those rules have now been replaced since April 2005 by the new Criminal Procedure Rules.

30. In the light of the applicable rules Mr Lynn submits, first, that no notice was given by the prosecution of their intention to rely upon these convictions and there was no reason why appropriate notice could not have been given. By reason of the absence of notice, Mr Lynn submits that there was prejudice to the defence in two respects. First, there was a lack of time for him to prepare an argument against admissibility under the new statutory provisions. He accepts that he did not seek from the judge an adjournment, and that the judge said that, if he needed time further to consider the matter, he could have it. As it seems to us, there can have been no prejudice on this basis.

31. The second basis for prejudice, Mr Lynn submits, is that the facts were not agreed because no notice had been given and no adequate pre-trial enquiries had, in consequence, been made. The defendant was cross-examined about the facts of one of these offences. Mr Lynn submits the defendant was embarrassed in consequence, because the explanation which he had to give in relation to one of the offences was that it did not involve entry into someone else's home, and the victim of the offence was his girlfriend. Clearly, it is unfortunate that there was cross-examination in those circumstances.

32. As this Court has previously pointed out, (see Bovell & Dowds para 2) it is important that provisions in relation to notice are observed so that adequate enquiries can be made on both sides as to the circumstances of offences, in so far as those circumstances may be relevant when the question of the admissibility of previous convictions arises. But, in the circumstances of this case, we are unpersuaded that the unfortunate cross-examination to which we have referred was such as, even arguably, to render the appellant's conviction unsafe. We say this in view of the limitation placed by the learned judge on the number of the appellant's abundant previous convictions which could be placed before the jury and having regard to the nature of the evidence against the appellant which, on any view, was substantial and came from a number of sources.

33. The second ground which was advanced in oral submissions by Mr Lynn was that the learned judge, in admitting previous convictions for offences of dishonesty, failed to consider the question of whether such offences gave rise, in the terms of the statute, to a propensity to be untruthful (see section 103(1)(b)). As this Court has previously pointed out, dishonesty does not necessarily equate with a propensity to be untruthful. It may be that the offences of theft by shoplifting, had the appeal centred on that aspect of the matter alone, could properly be regarded as not showing a propensity to be untruthful, rather than merely dishonesty. That cannot, however, be said in relation to the offences of benefit fraud, committed on four occasions.

34. Mr Lynn accepted that, in any event, if the evidence was properly admissible under gateway (g), as well as under gateway (d), there could not be the same objection to the admissibility of the offences of dishonesty. Mr Lynn submitted that the judge's basic consideration, as he put it, in relation to admissibility was under gateway (d). He submits that if the convictions had not been admitted, there was a real likelihood that the appellant would have been acquitted. It is, at that point, convenient to refer to the observation made by the judge in the course of his ruling as to bad character, which is in the transcript Volume III, at page 4E. He said this:

"So far as gateway (g) is concerned, yes, it is an inevitable consequence of the defendant's case that the prosecution witnesses have to be attacked by counsel as having made this up and put their heads together, as was put squarely to them, and rightly to them, by Mr Lynn, cooked up a story, invented a malicious and unpleasant story, a fraud."

As it seems to us, once it is accepted, as it was in the court below and is here, that the attack on the prosecution witnesses amounted to an allegation of conspiracy to put their heads together, in order falsely to implicate the appellant, the judge's ruling under gateway (g) was, as he described it himself "inevitable". In our judgment, there is no substance in the grounds of appeal so far as Fysh is concerned.

35. We add this, by reference to one of the written grounds not supported in oral submission before us today by Mr Lynn, that there is no sustainable criticism to be made of the terms in which the learned judge summed up this matter to the jury. It is correct that he did not have the advantage, if such it be, of this Court's judgment in Hanson , in relation to the distinction between a propensity to untruthfulness and dishonesty. In the course of his summing-up he equated the two. But the judge's summing-up followed, closely, the specimen direction given by the Judicial Studies Board, in December 2004, in relation to the admissibility of evidence of bad character and the blemish upon it which we have identified it does not give rise to any reason for regarding the appellant's conviction as unsafe. Fysh's application is therefore refused.

36. We turn to the case of Duggan. On 4th March 2005, at Snaresbrook Crown Court, following a trial before Mr Recorder Marshall, this applicant was convicted of wounding with intent to cause grievous bodily harm and sentenced to 5 years' imprisonment. His application for leave to appeal against conviction and sentence was referred to the Full Court by the Registrar. The incident giving rise to the charge occurred on the evening of 25th April 2004, in the Walkabout Public House on Upper Street, Islington. There was an altercation between the applicant and a woman called Susan Green. She sustained an injury from glass to the outside of her right hand, a deep laceration of her right middle finger, a black eye and a bruised jaw.

37. It was the prosecution case that the applicant had deliberately punched the complainant in the face, whereupon she had raised her hands in protection and the applicant then thrust a glassed object towards her, injuring her hand. The defendant's case was that the complainant had thrust a pint glass towards his face and, as he raised his hand to protect himself, the bottle he was holding had collided with the glass, so that injuries were caused to the complainant's hand. He said that his arm must have inadvertently connected with the complainant's face, causing the bruising. The central issue was self-defence in the context of which of the two was the aggressor.

38. The evidence from Susan Green was that, on her way back from buying a round of drinks, she was bumped into from behind so her drink spilled. She tapped the applicant on the shoulder and spoke to him, but he was offhand. She asked whether he was going to apologise and he effectively spat out the word "no" and threw his drink in her face. She thereupon threw her drink on him. At that stage, he punched her in the face with a clenched fist, straight to the eye. She was shocked. She held up her hands to protect herself; her glass by this stage had gone out of her hands. She could not say what the man had in his hands and she was not able to say precisely what happened after that. She denied in cross-examination that her hand injury was sustained when she was punched in the face. The two incidents were separate and her hand had been injured after she had been punched. She had done nothing violent. Evidence confirmatory of her account was given by Beth Howells, who said that it might have been 10 to 12 seconds after the punch that she saw the attack with the glass.

39. A Policewoman Constable came to the scene. When she arrived, the applicant was being aggressive and shouting at the door staff: "You're a fucking cunt". She warned him about his behaviour and he shouted: "Your mother blows fucking Pakis". She arrested him for a public order offence. Details were taken by another officer, in relation to the assault on Susan Green and the applicant was arrested for that. He continued to be racially abusive. When he was told he was being arrested for a racially aggravated public order offence, he claimed, falsely as he later said, to be a member of the British National Party and proud of it. He continued with similar insults and refused to give his name. He declined the services of a solicitor and did not answer any questions in interview.

40. He gave evidence that he had been drinking and watching football during the day. He had eight beers over three or four hours but was not drunk. The atmosphere in the pub had been "lovely". The complainant had bumped into him rather than the other way round. She had moved her glass to his face and he was afraid she was going to glass him, so he brought up his arm to protect himself. He had a bottle of beer in his hand, which must have broken the complainant's glass. He assumed, although he had not felt it, that his arm must have carried on and must have hit her on the face. He had been asked to leave by a bouncer.

41. He said in relation to his previous convictions, as to the rulings about which we shall in a moment come, that he always pleaded guilty. He was not in fact a member of the BNP but he did not dispute what the police officer said he had said. He claimed that he was upset because he was being arrested for nothing at all. He described himself as a gentleman. Both of the witnesses against him were lying.

42. The learned judge ruled, in relation to the admission of evidence of bad character, that although the Crown's application was out of time, and that no notice in accordance with the rules had been given, it was in the interests of justice that the application should succeed because no prejudice had resulted to the defence from the lack of notice.

43. The Recorder said that the applicant's convictions for assault and theft, in 1998, and for an offence contrary to section 5 of the Public Order Act 2003 were clearly bad character within the meaning of section 98. In addition the applicant had pleaded guilty to a racially aggravated section 5 Public Order Act offence, which arose from the events following his arrest for the wounding of Miss Green. That offence also, in the Recorder's judgment, came within the definition of bad character. He rejected a defence submission that that evidence came within the exception in section 98(b) as being "misconduct in connection with the investigation... of that offence."

44. The Recorder ruled that the applicant's behaviour, after the offence, was admissible as being relevant to his demeanour and state of mind at the time of the offence. It was clearly capable of informing the jury of what was happening so soon after the crucial events. There was no prejudice in admitting the evidence, such as to lead to exclusion under section 78 of the Police and Criminal Evidence Act and therefore the evidence was admissible.

45. The Crown sought to admit the previous convictions under gateway (d), on the basis that the matters in issue between the parties were who attacked whom and whether the applicant was telling the truth in relation to self-defence. The Recorder ruled that the convictions for violence or disorder were relevant to the issue of self-defence. They showed a clear pattern of attacking people, so that the Crown could properly adduce the evidence to establish propensity. The Recorder said he was not satisfied that the applicant's honesty was a substantial issue, so that his conviction for theft ought to be admitted.

46. Having referred to section 101(3) and (4) the Recorder said he was satisfied that the evidence would not have such an adverse effect on the fairness of the proceedings that it ought to be excluded: on the contrary, it was capable of informing the jury of precisely what they needed to know. Although the first assault was committed when the applicant was 16, it could not be said to be one-off in view of his more recent offending in November 2002. Although the offences were not of the same description or category, for the purposes of section 103(2) and (4), that did not preclude admissibility.

47. There was an issue about whether the earlier conviction was for assaulting occasioning actual bodily harm or, as the applicant maintained, for common assault. That is one of the aspects which give rise to this application for leave to appeal. We shall return to it a little later. The learned Recorder ruled that the underlying facts in relation to the conviction in 1998, for which no memorandum of conviction was then available, should not be admitted.

48. In passing sentence, the Recorder described the attack as unprovoked and vicious, on a slightly built young woman who presented absolutely no threat. She had been fun loving and carefree, but was now concerned about going out into rowdy places. The Recorder commented that there was little mitigation. The applicant was young (he is 22) and the Recorder commented that his record could have been worse but it was hardly a commendation. It was, the Recorder said, clear that he had not learned his lesson from previous offending, and it was to be pointed out that he had committed this offence during the period of a conditional discharge, imposed in December 2003, for 12 months, for an offence contrary to section 5 of the Public Order Act.

49. The learned Recorder also referred to the illness of the applicant's mother, who, sadly, has multiple sclerosis and, until his incarceration, the applicant was her main carer. It is apparent from material before this Court that she is finding it difficult to manage without him.

50. On behalf of the applicant, Mr McCrindell advances a number of grounds of appeal in seeking to challenge the applicant's conviction. First, he says, rightly, that it was not until the morning of the trial that antecedents were obtained and there had been no previous notice of an intention to rely on the applicant's previous convictions. Mr McCrindell refers to paragraph 2 in the judgment of this Court in Bovell & Dowds , which stressed the importance of the rules being adhered to, so that, in particular, the defence are in a position to deal with the matters on which the prosecution rely, and both sides can make such enquiries as may be necessary with regard to the circumstances of convictions sought to be relied on. Mr McCrindell points out, rightly, that, if the rules had been complied with, everyone would have been clear as to exactly what evidence was to go before the jury.

51. So far as the admissibility of the convictions is concerned, Mr McCrindell stresses the difficulties arising from the want of notice in investigating the nature of what was said to be an assault occasioning actual bodily harm. It is apparent from the memorandum of conviction, which has been obtained since trial, that the offence of which the applicant was previously convicted, which was the subject of dispute (it is to be noted the only subject of dispute) was common assault, not assault occasioning actual bodily harm. So far as that is concerned, however, the learned judge, at page 9D of the transcript of the summing-up, directed the jury that it was probably best to assume for safety "that it was a conviction of common assault".

52. So far as the applicant's aggressive behaviour after the incident and following the arrival of the police officers is concerned, Mr McCrindell makes no complaint about want of notice in relation to that because statements from prosecution witnesses served on the defence described that conduct on which the prosecution wished to rely. The want of notice in relation to the convictions, as it seems to us, did not give rise to any prejudice so far as the defence were concerned. Clearly, it may well have been prejudicial had the matter proceeded wrongly on the basis that the offence was assault occasioning actual bodily harm, rather than merely common assault. But, by virtue of the direction given by the Recorder in his summing-up, it is apparent that the case did not proceed on that basis.

53. The second ground advanced by Mr McCrindell is that the material before the court, on the basis of which the bad character evidence was admitted, was of poor quality, in that it was derived from the Police National Computer. The difficulty with that submission, as it seems to us, is that there was nothing in dispute by the defence, in relation to the material from the Police National Computer, apart from the nature of the assault to which we have already referred. There is, in consequence, no substance in that ground.

54. The third ground advanced by Mr McCrindell is that the bad character evidence should not have been admitted. In particular, in that regard, he refers to the speech of Lord Phillips of Worth Matravers in the civil, similar fact, case of O'Brien v Chief Constable of South Wales Police [2005] UKHL 26. At paragraphs 12 and 52 Lord Phillips, observed that the statutory provisions with which this Court is presently concerned "require an enhanced relevance in order to ensure that the ambit of the trial remains manageable." As it seems to us, there was an enhanced relevance in relation to the earlier convictions and the events after these offences, so far as the applicant's behaviour is concerned. In our judgment, such matters were capable of establishing propensity to violence relevant to the crucial issue as to who was the aggressor.

55. There are further grounds, 4, 5 and 6, in relation to the use of unchallenged racist language. But for the reasons which we have already indicated, the learned Recorder was entitled to conclude that they showed a high level of aggression on the applicant's part, immediately following the incident giving rise to the section 18 offence.

56. Ground 7 is a further complaint about reliance on the Police National Computer with which we have sufficiently dealt.

57. Grounds 8 to 12 are critical in various respects of the summing-up. It is said that, in Mr McCrindell's words, "this went a little bit too far", when the learned Recorder said that the prosecution case was that the applicant was an aggressive man who had been aggressive on this night. Something which goes a little bit too far, even if it does -- and we are not persuaded that it does -- is an insubstantial basis on which to suggest that a summing-up is so defective as to render a conviction arguably unsafe.

58. Mr McCrindell relies on the observations made in paragraph 18 of this Court's judgment in Hanson , and submits that further directions in accordance with that judgment ought to have been given. Of course, that judgment was not available at the time of the Recorder's summing-up, and we have already, at the beginning of this judgment, referred to the way in which paragraph 18 in Hanson should be understood.

59. The further criticism is made that, at page 9G of the transcript of the summing-up, the Recorder's use of the phrase "you have been permitted to hear of these convictions...", in the context of an explanation by the Recorder as to why those convictions were before the jury was terminology which might induce in the jury's mind a belief that the Recorder himself had already decided that the convictions were determinative of issues which the jury had to decide. We are wholly unpersuaded that that is a possible interpretation of that passage in the summing-up. In our judgment, without descending into further detail, there is no substance in any of the criticisms of the summing-up. Accordingly, leave to appeal against conviction is refused.

60. So far as sentence is concerned, the submission which is made in the written grounds of appeal and to which the Court indicated it was sympathetic, is that 5 years is somewhat longer than is necessary in this case, having regard, in particular, to the degree of injuries sustained by the victim. The significant injury, as we have indicated, was to the hand rather than to the face. That is a matter to which, in reaching the appropriate sentence, attention should be paid. The Court indicated that it was minded to reduce the sentence to one of 4 years' imprisonment. In a late submission, Mr McCrindell suggested that a figure below that might, in all the circumstances, having regard to the appellant's possible release dates, might be possible. In our judgment, 5 years was somewhat longer than necessary, even following a trial. Accordingly that sentence is quashed. We substitute for it a sentence of 4 years' imprisonment. We see no justification for going below that figure, in the light of all the circumstances in this case. Albeit that the physical injuries were not serious, the offence has had a serious impact upon the victim.

61. The appeal against sentence is therefore allowed in the way and to the extent which we have indicated.

62. We come, finally, to the application of Chohan. On 8th February 2005, at Manchester Crown Court, following a trial before His Honour Judge Mort, this applicant was convicted on count 1 of robbery, on count 2 of possession of an imitation firearm while committing a schedule 1 offence and on count 3 of possession of an imitation firearm with intent to cause fear of violence. He was sentenced to 10 years' imprisonment on count 1 and to 3 years' imprisonment concurrently on each of counts 2 and 3. The total sentence was therefore 10 years' imprisonment. His application for leave to appeal against conviction has been referred to this Court by the Registrar.

63. The facts were these. A couple of days prior to the incident which formed the basis of the three counts, an 89 year old man called Sidney Marsh was visited at home by the applicant, who claimed that his mother had been robbed and he was looking for the culprits. He said he had written their descriptions on a piece of paper which he gave to Mr Marsh.

64. On 19th May 2003 Mr Marsh was again at home, in Solway Close, Oldham. The applicant arrived and shouted through the window: "I've found those lads." He walked into the kitchen, shook the complainant by the shoulders, produced what appeared to be a gun, pointed it at Mr Marsh's chest and said: "I want a fiver". Mr Marsh went to get a £5 note and the man took his wallet from him. That gave rise to counts 1 and 2. Astonishingly, when his robber had left his home, this 89 year old victim gave chase. He told a neighbour he had been robbed. Two women neighbours gave chase for a short while and confronted the man, who pointed a gun at them, giving rise to count 3. They backed off. He made good his escape.

65. The identification of the robber as the applicant rested upon a prosecution witness called Donna Marsh. She happened to be nearby, in Lee Street, when, she said, the applicant, whom she knew as "Tony", ran past her. The issue, essentially, was whether she was right. The two women neighbours who had given chase, although they gave descriptions of the man they chased, were unable to pick him out on an identification parade.

66. Donna Marsh described seeing the man running away. She had a clear view of him. She turned and said "Hello". He replied. She knew him as Tony. He was an Asian man, about 30, five feet eight or nine, stocky and wearing a hat. She had his face in sight for a minute or so. He had a gun in his hand. At this time, that is May 2003, she had known him for about a year. Her evidence (and to the circumstances in which it was admitted in this form we shall come in a moment), was that she had seen him a lot, indeed every other day for a year or so, because she bought heroin from him. She was taking heroin three or four times a day. She used to meet him at the bottom of Lee Street, the street in which he was when she saw Mr Marsh's assailant running away. She also met him at The Junction Pub.

67. On 25th August 2004 she picked out the applicant on a VIPER parade as being the man she had seen the previous May. The reason why there had been so long a lapse of time between the offence of robbery and the VIPER parade was because, for most of that period, from a time starting two days after the commission of this offence, the applicant had been out of this country.

68. She said that she had not wanted to say that she was a heroin user. That was why, in the first statement which she made to the police, she only referred to knowing the applicant from seeing him around and in a pub. She thought she had mentioned the gun in her first statement, but it was not there. She said she had no reason to invent her evidence.

69. There were submissions made to the learned judge in relation to two different categories of evidence namely Donna Marsh the appellant's previous convictions. In relation to Donna Marsh she made a second statement on 8th January 2005 describing the basis on which she was able to recognise the applicant, namely the frequency of their encounters during heroin dealings. The prosecution sought to adduce it, under gateway (c) of section 101(1), that is to say, that it was "important explanatory evidence." explanatory, of course, in relation to the basis of her identification.

70. The judge ruled that, in such a case, it was inevitable that the jury, who would have to be directed as to the caution necessary in identification by reference to Turnbull , would have to consider the circumstances in which the witness claimed to be able to identify the defendant. It would, the judge concluded, be difficult properly to understand other evidence in the case without knowing the background of the heroin dealings which, he concluded, went to the heart of matters.

71. The wording of section 101(3) of the Act, whereby the court must not admit evidence under gateways (d) or (g) if it appears that it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it, suggested, the judge said, that section 78 of the Police and Criminal Evidence Act was not applicable in relation to gateways (d) and (g). But, he concluded, even if he was wrong, he would not exercise his discretion in this case to exclude the evidence, bearing in mind the vital importance to the identification by Donna Marsh of the explanatory evidence.

72. Submissions were also made in relation to the applicant's previous convictions, of which there are a considerable number. The application related to a robbery/assault with intent to rob, in 1992, and three burglarise in 2000. The Crown sought to adduce that evidence as to those conviction under gateway (d) on the basis that they were relevant to an important matter in issue, namely, a propensity to commit the type of offence with which the applicant was charged. They fell under subsection(1)(a), in that they were of the same description or category as the offence charged and, therefore, were admissible, subject to section 103(3), in relation to the length of time since the conviction, or any other matter, which rendered them inadmissible. The judge concluded that, despite the lapse of time, it was not unjust to admit the robbery conviction in 1992, bearing in mind the applicant's continuing criminality thereafter and the fact that it was a serious robbery at knife-point, which was material in the present case. Furthermore, the three burglaries in 2000 were relevant because they involved very similar methods of operation, namely gaining entry, by falsity, into the homes of the elderly. The judge concluded that it would not have such an adverse effect on the fairness of the proceedings that they ought not to be admitted. Furthermore, so far as the robbery in 1992, was concerned, although that offence was old, it demonstrated a propensity to commit offences involving the use of a weapon against a householder.

73. The defendant in evidence said that he had not been at Mr Marshall's house on 19th May, nor had he had a gun. He had never been a drug dealer. He had gone to Pakistan soon after the offence because his wife's mother was there and she had been taken ill. He said that, in interview, he had not known what was meant by the name Donna Marsh: he only knew her by her first name. He claimed to have recognised her when he came to court. He had known her for several years, as they were both heroin users. He claimed, and it is to be emphasised that this was denied by Donna Marsh, that he had had a sexual relationship with her. He suggested that she must have lied about seeing him running away from the robbery because he had not told her that he had remarried.

74. On behalf of the applicant, Mr Samuels submits that the judge was wrong to admit Donna Marsh's second statement describing the heroin dealing with the applicant. Mr Samuels accepted, rightly, that only a fraction of the applicant's record went before the jury by reason of the judge's ruling. He submits that it would have been possible to edit the statement in relation to the heroin dealing, in order to disclose a frequency of encounters, without disclosing the reason for those encounters. The prejudice arising from the allegation of heroin dealing was such that the judge ought not to have admitted the statement in the form which he did. It is to be noted that whereas initially, the defence based upon a challenge to the frequency of the association between the applicant and Donna Marsh it later changed to a claim of deliberate dishonesty by her, promoted by malice.

75. In our judgment, the circumstances of this case, in relation to identification, were such that no sustainable criticism can be made of the judge's decision to admit in evidence the witness Donna Marsh's second statement. Only if that was done, as it seems to us, would it be possible for her sensibly to explain, not least, in the face of the different defences emanating from the applicant, the basis of her ability to identify him in the circumstances which she did.

76. So far as the admission of the 1992 robbery and the three dwelling-house burglaries in 2000 are concerned, Mr Samuels was frank enough to concede that the circumstances of the three burglaries were, as he put it, "uncomfortably close" to the offence charged. As it seems to us, that was a reason not for excluding the evidence of those convictions but for admitting it. The judge's exercise of discretion, in relation to the admission of these convictions was, as it seems to us, impeccably performed. No suggestion is made that he took into account inappropriate considerations or failed to take into account appropriate considerations. Accordingly, the application for leave to appeal against conviction on behalf of Chohan fails.

77. Before leaving the case of Chohan, it is, as we foreshadowed at the beginning of this judgment, perhaps helpful to refer to the summing-up of His Honour Judge Mort in Chohan's case:

"In this case you have heard evidence that Mr Chohan has a bad character, in the sense that he has got criminal convictions and you have heard, it is alleged, that he otherwise misconducted himself by supplying heroin to Donna Marsh. It is important that you understand why you have heard this evidence and how you can use it. As I will explain in more detail later, you must not convict Mr Chohan only because he has got a bad character. You have heard of this bad character because, first of all, in relation to the allegation that he was supplying drugs to Donna (and bear in mind it is her allegation that that is the position) it may help you to understand other evidence in the case, namely how is it that Donna Marsh was so confident that the man running past her on Lee Street, running away from Mr Marsh and from the two women, was the defendant. The reason being because she was seeing him several times a day when acquiring drugs from him. So it may help you to consider the accuracy and reliability of her identification and it may help you to understand the case as a whole. You have heard, in relation to the previous convictions, of his bad character and it may help you to resolve an issue that has arisen between the defence and the prosecution, namely the question whether he has a propensity or a tendency or an inclination to commit offences of the kind with which he is charged. If you think it is right, you may take the previous convictions into account, in deciding whether or not Mr Chohan committed the offences with which he is now charged. The prosecution rely on the robbers in 1992 because they show that he has a tendency to use weapons to threaten violence to steal and two instances have been given to you where a sheath knife was used, one in order to steal and one whereby theft actually took place and it is said, ten years on, now he is using a handgun. The prosecution rely on the burglaries in 2000 because they say that they show that the defendant has a tendency to use bogus explanations to trick his way into older people's homes in order to steal from them... So the prosecution's case there is that it is, on this occasion, a combination of pretending to be looking for people who have robbed his mother, asking for a pen and paper to write down the description of the alleged robberies and then using the pretext, coming back and saying: 'We have found them' going in, producing the gun and stealing wallet. So the crown are saying here there is a tendency to commit robberies with a weapon and to target the elderly with bogus explanations and, therefore, they say it makes it more likely that he is guilty of the offence. The defence, on the other hand, say, first of all, these robberies were ten years ago, he described himself, 'I was about 16 or 17 at the time, the burglaries were three years old, I always pleaded guilty to offences that I had been arrested for' and it is, in fairness to the defence, a matter which you can take into account, deciding what impact the convictions had on his truthfulness. Mr Samuels put it in a well known phrase from Casablanca of 'rounding up the usual suspects' and that is what obviously you must be very careful about...

If you do conclude that, at the time of these offences in May, 2003, Mr Chohan did have a propensity to commit offences of that type, namely robberies with weapons or targeting the elderly with bogus explanations to get entry into the property, then you can consider whether it makes it more likely that he committed the offences in May, 2003. You have to decide to what extent, if at all, his character helps you when you are considering whether or not he is guilty. You must not convict simply because of his convictions, nor mainly because of them. The propensity or tendency amounts to some additional evidence pointing to guilt, but please bear in mind, even if he did have such a tendency, it does not necessarily prove that he would commit further offences or that he has committed these offences.

You are also entitled to consider the evidence of Mr Chohan's previous convictions in the following way. If you think it right, you may take into account, when deciding whether or not his evidence to you was truthful, because a person with convictions for dishonesty may be less likely to tell the truth, but it does not follow that he is not capable of telling the truth. Indeed, Mr Chohan says, 'The fact that on the previous occasions I have been arrested and I have always held my hands up means that, when I plead not guilty, I am likely to be telling the truth' and you decide to what extent his character helps you when judging his evidence. So that is the extent to which the evidence of his previous convictions may be used for the particular purposes I have just indicated, if you find it helpful."

That approach is not only, rightly not criticised by Mr Samuels in this case, but, subject to one refinement in relation to the distinction drawn between propriety of dishonesty and propriety to untruthfulness in para 13 of Hanson , it provides an impeccable summing-up which may well afford useful guidance in other cases where summing up the significance of previous convictions.

78. For the reasons which we have given, Chohan's application for leave to appeal against conviction is refused.

79. Although we have not, in the course of this judgment, referred expressly to the written submissions provided for the Court's benefit by Mr Houlder QC, on behalf of the Crown, we are greatly indebted to him for the submissions which he made in relation to each of these cases.