Tuesday, 19 July 2005

THE LORD CHIEF JUSTICE:

1. On 12 April 2005, in the Crown Court at Preston, before His Honour Judge Brown, the applicant was convicted and sentenced as follows: on count 4, sexual assault on a female, three years' imprisonment; on count 5, wounding with intent, life imprisonment (which was a mandatory life sentence for a second serious offence) with a minimum period of 66 months to be served; and on count 7, committing an offence with intent to commit a relevant sexual offence, two years' imprisonment concurrent. The total sentence, therefore, was one of life imprisonment. Not guilty verdicts were entered on count 1 (unlawful wounding) and on count 2 (attempted kidnapping). A guilty plea was entered to a charge of dangerous driving, and a sentence of six months' imprisonment was imposed in respect of that offence. Having been convicted of sexual offences to which Part 1 of the Sex Offenders Act applies, the applicant was required to comply with the provisions of section 2 of that Act, to notify the police indefinitely. The applicant's application for leave to appeal against conviction has been referred to this court by the Registrar. We have granted leave to appeal.

2. The facts are as follows. The complainants were strangers to the appellant (as he now is). The offences alleged were a series of violent sexual and sex-related attacks over the course of a 12 hour period between the evening of the 28th and the morning of 29th October 2004. Following his arrest the appellant was interviewed about the allegations. In essence (except in relation to count 4) he denied any wrongdoing, or sought to put forward an innocent explanation for his behaviour.

3. The nature of the evidence which was given on behalf of the prosecution can be summarised as follows. In relation to the first assault, KS said that she had been with a friend until 10pm. She had met the appellant at 1am. She had been out that night to buy some cannabis. She was in her car driving around. She parked up and saw a man standing by the side of her car. She wound down the window and asked him if he had change for the phone. He said, "Yes", and jumped into her car. He directed her towards a 24 hour garage. However, she felt frightened. Eventually she parked up and asked the man to get out of her car. The man laughed and put his hands on her left thigh. He prodded at her vagina, grabbed her breasts and pulled her hair. Fortunately, someone came to her assistance and the man ran off. KS was screaming as she got out of her car. A passer-by made a 999 call.

4. In relation to the second event, CG had smoked some heroin. She left her friend's home to buy something to eat. She walked towards her hostel. While in the foyer area a man came up to the window of the door. She walked to the garage to buy some milk. The same man was in his car. She walked over to the car and spoke to the man, who was the appellant. She asked him if he wanted business. He said yes and she told him the price. In the car he gave her £30. She got out a condom and put it on him. She started performing oral sex. She said that the appellant suddenly changed and became like an animal. He started squeezing her throat and holding her face. He shouted at her and asked her for her tongue. She put out her tongue. He bit off the end of her tongue. He got out of the car, kicked her and called her a "dirty bitch". She ran off and flagged down a man in a recovery truck, who came to her assistance.

5. The third event involved HA. At about 4.15am she was on her way to work at a sorting office. She noticed a car following her when she drove off the slip road. She had seen the same car with a single male occupant moments before. She felt very frightened. The car went to overtake her, but did not. It continued to follow her through several sets of traffic lights. She drove down an unlit road. The car rammed her. She lost control of her car and stopped outside the gates of the sorting office. The male got out of his car and walked to the passenger side of her car. She got out of her vehicle and ran. She was crying by the time she reached the office where she worked. The man concerned was the appellant.

6. In relation to count 3, the appellant said that the complainant had offered him a lift in her car. He denied sexually assaulting her. In relation to the second assault, the appellant said that he had never met CG before. He had been in the car with CG. She gave him oral sex and the condom came off. He then kissed her on the cheek but started to feel pain in his testicle (presumably as a result of something CG had done). He was close to her face, came into contact with her tongue and subsequently bit it off. He lost control because he was in so much pain. After the incident with CG his mind was racing. He drove along for about an hour. He noticed a vehicle in front of him as he left the motorway. He needed to sleep at this point. He followed the car in front. He focused on the rear lights. He unintentionally collided with the car. He denied any sexual intent.

7. Having regard to the evidence which the complainants gave at the trial, it was a case in which the Crown had overwhelming evidence to support a prosecution. However, the Crown sought to adduce evidence of the appellant's previous convictions. In September 1989 he was convicted of two offences of indecent assault on two different women. In 1992 he was convicted of assault occasioning actual bodily harm on a woman. In July 1993, he was convicted of an offence of attempted rape. In December 1995, he was convicted of indecent assault and assault occasioning actual bodily harm. The Crown could have proved those convictions in the normal way under sections 73 and 74 of the Police and Criminal Evidence Act 1984 ("PACE"). They chose, however, to adopt a different approach. They sought to rely on section 117 of the Criminal Justice Act 2003. For that purpose they relied on a statement of Yvette Lesley Grimes, an officer with the Essex Police. As a result of information she received, she retrieved records from the computer facility available to the Essex Police. The records obtained from that computer are in turn derived from various members of staff who work for the Essex Police Force, who are acting under a duty to record information supplied from persons in legal organisations, also acting under a duty, who either had or may reasonably be supposed to have had personal knowledge of the matters dealt with in the records. She goes on to state:

"Such people may not now reasonably be expected (having regard to the time which has elapsed since they supplied the information and to all the surrounding circumstances) to have any recollection of the matters dealt with in the information they supplied."

She then attaches the records themselves. Those records contain details of the appellant's previous convictions. In addition they contain an entry which reads "Methods Used". We give one example of the methods used. The document YLG/4, in addition to giving details about the conviction, says:

"Drove victim to secluded area of industrial estate intending to have sexual intercourse. Used force in an attempt to remove her clothing and detain victim. Was prevented from committing full offence by victim's fierce resistance."

8. In order to put that evidence before the court, the Crown relied on sections 101(1)(d) and 117 of the Criminal Justice Act 2003. Section 101 deals with the admissibility in criminal proceedings of the evidence of the defendant's bad character. It provides that the evidence is to be admissible if, but only if, it meets the requirements of one or more of the categories (a) to (g) that are set out, of which the significant one for present purposes is (d) which provides:

"it is relevant to an important matter in issue between the defendant and the prosecution."

Subsection (3) of section 101 provides:

"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."

9. Before the trial judge Mr Smith properly argued that the judge should exclude the evidence under subsection (3) and not admit these previous convictions because the convictions could be unduly prejudicial, having regard to the time that had elapsed since their commission.

10. Section 103 amplifies the provisions of section 101(1)(d). Section 103(1) provides:

"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 than he is guilty of the offence."

The prosecution said that this case came within section 103(1)(a). Subsection (2) provides:

"Where subsection (1)(a) applies, a defendant's propensity to commit offences of a 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."

Subsection (3) provides:

"Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in the case."

Presumably that subsection was also relied upon by the defence as a reason for the evidence being excluded.

11. In addition to the arguments based on those provisions, a separate and distinct argument was advanced by Mr Smith. It is the separate and distinct argument with which this application is primarily concerned. Clearly any ruling which was made as to whether it was in the interests of justice for the evidence to go before the jury was a matter which was for the decision of the trial judge. Having regard to the facts to which we have referred, it was a case where he properly could exercise a discretion to allow the evidence to be given. However, section 117 provides certain conditions which must be fulfilled before evidence can be admitted under that section. It is important to consider those provisions. They come under Chapter 2, which is the part of the Act which deals with hearsay. Section 114(1) provides, as an introduction to section 117 and the other sections in that chapter:

"In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if --

(a) any provision of this Chapter or any other statutory provision makes it admissible,

(b) any rule of law preserved by section 118 makes it admissible,

(c) all parties to the proceedings agree to it being admissible, or

(d) the court is satisfied that it is in the interests of justice for it to be admissible."

The width of the provision in (d) is not a matter upon which we need to express an opinion today, but it is a very wide provision indeed. Subsection (3) says:

"Nothing in this Chapter affects the exclusion of evidence of a statement on grounds other than the fact that it is a statement not made in oral evidence in the proceedings."

12. Section 117(1) provides:

"In criminal proceedings a statement contained in a document is admissible as evidence of any matter stated it --

(a) oral evidence given in the proceedings would be admissible as evidence of that mater,

(b) the requirements of subsection (2) are satisfied, and

(c) the requirements of subsection (5) are satisfied, in a case where subsection (4) requires them to be."

So far as section 117(1)(a) was concerned, the documentary evidence on which the prosecution sought to rely was for reasons already given evidence which was admissible under section 101(1)(d).

13. Subsection (2) provides:

"The requirements of this subsection are satisfied if --

(a) the document or the part containing the statement was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office,"

(In his arguments before us Mr Smith realistically accepts that that requirement was complied with in this case.)

" (b) the person who supplied the information contained in the statement (the relevant person) had or may reasonably be supposed to have had personal knowledge of the matters dealt with, and

(c) each person (if any) through whom the information was supplied from the relevant person to the person mentioned in paragraph (a) received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office."

In this case if (b) is complied with, then there is no problem with regard to (c). Apart from what we are about to say in relation to (b), the information would be information which would be handled by persons falling within (c). It would be recorded in the computer by such a person; it would be extracted from the computer in such a way and it came to the officer in this case who produced the document. Under (b) the person who supplies the information has to be the relevant person who had or may reasonably be supposed to have had the personal details of the matters dealt with.

14. Subsection (5) provides:

"The requirements of this subsection are satisfied if --

....

(b) the relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement (having regard to the length of time since he supplied the information and all other circumstances)."

15. Having looked at section 117, it is necessary to return to the document which was sought to be admitted in this case. That document contained partly details relating to the appellant's conviction. As to that there is no difficulty. The fact of the conviction can be admitted under section 117. Alternatively, the provisions of PACE, to which we have already referred, could be relied upon. However, in regard to the entries dealing in the case of each previous conviction which described the method used, Mr Smith contended that the details of what the appellant is alleged to have done in order to commit the previous convictions was information dependent upon the complainant involved in those offences. The complainant was the relevant person under section 2(b) but she did not apply the information; a police officer personally did so. That affair does not fall within subsection (2)(b). Accordingly, it is submitted, the right course to have adopted was that which was adopted prior to the Criminal Justice Act coming into force. A statement should have been obtained from the complainant. If that had been done, it may or may not have been possible to rely on the circumstances in section 116(2), which allows statements to be adduced before a jury in criminal proceedings where a witness is unavailable. Section 116(2) includes such conditions as the witness is dead or is unfit or is outside the United Kingdom or cannot be found. There is also a different requirement that the witness concerned, through fear, does not give or does not continue to give oral evidence in the proceedings either at all or in connection with the subject matter of the statement and the court gives leave for the statement to be given in evidence.

16. In this case the Crown wanted to rely on the statement in the document as to the method used by the appellant in committing those previous convictions. Mr Bentham QC, who appears on behalf of the Crown, does not argue that the section is wide enough to cover the admission of the document in question. At an early stage in the life of this legislation the Crown sought to use section 117 for purposes which are outside the language of the Act. The judge, with whom we have considerable sympathy, concluded that the documents should go before the jury. He considered that for the position to be otherwise would cast an inappropriate burden upon the complainants who had been the victims of the previous convictions. He did not want the consequences of those offences to be graver than they already were as a result of their having to give statements and possibly be called to give evidence at the appellant's trial. That approach was understandable, but it was wrong. The necessary foundations for the admissibility of the method used by the appellant was not laid in this case.

17. In this connection it is extremely important that practitioners bear in mind the guidance given by the Vice President in R v Hanson and Others [2005] EWCA Crim 824. At paragraph 17 the Vice President said:

".... But where, as will often be the case, the Crown needs and proposes to rely on the circumstances of the previous conviction, those circumstances and the manner in which they are to be proved must be set out in the application [that is the formal application now required by the Crown Court Rules]. There is a similar obligation of frankness upon the defendant, which will be reinforced by the general obligation contained in the new Criminal Procedure Rules to give active assistance to the court in its case management (see rule 3.3). Routine applications by defendants for disclosure of the circumstances of previous convictions are likely to be met by a requirement that the request be justified by identification of the reason why it is said that those circumstances may show the conviction to be admissible. We would expect the relevant circumstances of previous convictions generally to be capable of agreement, and that, subject to the trial judge's ruling as to admissibility, they will be put before the jury by way of admission. Even where the circumstances are genuinely in dispute, we would expect the minimum indisputable facts to be thus admitted. It will be very rare indeed for it to be necessary for the judge to hear evidence before ruling on the admissibility under this Act."

18. The documents which were relied upon by the Crown in this case only became available at a very late stage. The process of case management to which the Vice President referred in Hanson did not happen. If the formal procedures referred to in Hanson had been followed, this would have been a case where the expectations of the Vice President expressed in Hanson would have been met and there would have been agreement as to a description of the facts of the previous convictions with which the appellant was satisfied. However, that did not happen. Having regard to the view we have expressed as to the non-compliance with the requirements of section 117, it is necessary for this court to consider whether the conviction was unsafe.

19. At page 18 of his summing-up Judge Brown dealt with the previous convictions in a manner in respect of which no possible objection can be taken. He did not go into the details of the previous convictions. He explained why they were relevant in a way which properly drew the jury's attention to their significance. The appellant had given evidence and had been asked about his account of the previous convictions. He qualified matters contained in the methods used on the documents which had been admitted, but they were as to specific items appearing in those statements and not to their generality. The jury heard the appellant's explanation. They were aware of his evidence as to what had happened. There was no oral evidence before them to contradict his account of his previous convictions.

20. In addition, this was a case where the evidence against the appellant, quite apart from the previous convictions, was overwhelming. Four different complainants, unknown to each other, gave an account of assaults taking place which were of a similar nature and which occurred over a short period of time. We have to ask ourselves: in all the circumstances of this case did the admission of the documents make this trial unsafe? It must be borne in mind that the fact of the previous convictions and their nature was properly before the jury. It was only the short statement as to the method used which should not have been admitted before the jury. Looking at the situation as a whole, we have come to the conclusion that these convictions were not unsafe. Accordingly this appeal will be dismissed.

21. Before we leave this case we point out that it has a moral for other cases of this sort. First, it emphasises the importance of the Crown determining whether they need any more evidence than the actual previous conviction to achieve the purpose for which they want the evidence to be admitted. Second, it emphasises the importance of the Crown deciding that if they want more than the evidence of the conviction and the matters that can be formally established by relying on PACE, they must ensure that they have available the necessary evidence to support what they require. That will normally require the availability of either a statement by the complainant relating to the previous convictions in a sexual case or the complainant to be available to give first-hand evidence of what happened. Care must be exercised to ensure that it is necessary to go to the lengths of requiring the complainant in a sexual case which has occurred in the past to be brought before the court. It is because of the need to comply with the formalities of the sort which were not complied with in this case that the procedure indicated by the Vice President in Hanson is so important.

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