Hanson, R. v

THE VICE PRESIDENT: All members of the constitution have contributed to this judgment.

We have heard these three applications together because they raise similar questions in relation to the admissibility of evidence of a defendant's bad character under the recently introduced provision in sections 98 to 113 of the Criminal Justice Act 2003. These abolish the long established common law rules governing the admissibility of evidence of bad character and introduce a raft of new provisions.

Before turning to the individual cases, it is first convenient to set out our conclusions in the light of the helpful submissions made to us by counsel as to the way in which trial judges should approach their task when confronted by a prosecution application to adduce such evidence. These comments are not intended to be a comprehensive treatise on the new provisions. Their primary focus is on the issues raised in these applications.

The starting point should be for judges and practitioners to bear in mind that Parliament's purpose in the legislation, as we devine it from the terms of the Act, was to assist in the evidence based conviction of the guilty, without putting those who are not guilty at risk of conviction by prejudice. It is accordingly to be hoped that prosecution applications to adduce such evidence will not be made routinely, simply because a defendant has previous convictions, but will be based on the particular circumstances of each case.

Section 101(1) provides seven possible gateways through which evidence of a defendant's bad character is admissible. The ones likely to be most commonly relied upon by the prosecution are (d), where the evidence is relevant to an important matter in issue between the defendant and the prosecution, (f), where the evidence is to correct a false impression given by the defendant and (g), where the defendant has made an attack on the character of another person who will often, though not always, be the victim of the alleged crime, whether alive or dead.

The present applications are concerned only with the Crown wishing to rely upon evidence of previous convictions rather than other evidence of bad character. By section 103(1) matters in issue for the purpose of section 101(1(d) include:

Where propensity to commit the offence is relied upon there are thus essentially three questions to be considered:

In referring to offences of the same description or category, section 103(2) is not exhaustive of the types of conviction which might be relied upon to show evidence of propensity to commit offences of the kind charged. Nor, however, is it necessarily sufficient, in order to show such propensity, that a conviction should be of the same description or category as that charged.

There is no minimum number of events necessary to demonstrate such a propensity. The fewer the number of convictions the weaker is likely to be the evidence of propensity. A single previous conviction for an offence of the same description or category will often not show propensity. But it may do so where, for example, it shows a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged (compare DPP v P [1991] 2 AC 447 at 460E to 461A). Child sexual abuse or fire setting are comparatively clear examples of such unusual behaviour but we attempt no exhaustive list. Circumstances demonstrating probative force are not confined to those sharing striking similarity. So, a single conviction for shoplifting, will not, without more, be admissible to show propensity to steal. But if the modus operandi has significant features shared by the offence charged it may show propensity.

In a conviction case, the decisions required of the trial judge under section 101(3) and section 103(3), though not identical, are closely related. It so to be noted that wording of section 101(3) - "must not admit" - is stronger than the comparable provision in section 78 of the Police and Criminal Evidence Act 1984 - "may refuse to allow". When considering what is just under section 103(3), and the fairness of the proceedings under section 101(3), the judge may, among other factors, take into consideration the degree of similarity between the previous conviction and the offence charged, albeit they are both within the same description or prescribed category. For example, theft and assault occasioning actual bodily harm may each embrace a wide spectrum of conduct. This does not however mean that what used to be referred as striking similarity must be shown before convictions become admissible. The judge may also take into consideration the respective gravity of the past and present offences. He or she must always consider the strength of the prosecution case. If there is no or very little other evidence against a defendant, it is unlikely to be just to admit his previous convictions, whatever they are.

In principle, if there is a substantial gap between the dates of commission of and conviction for the earlier offences, we would regard the date of commission as generally being of more significance than the date of conviction when assessing admissibility. Old convictions, with no special feature shared with the offence charged, are likely seriously to affect the fairness of proceedings adversely, unless, despite their age, it can properly be said that they show a continuing propensity.

It will often be necessary, before determining admissibility and even when considering offences of the same description or category, to examine each individual conviction rather than merely to look at the name of the offence or at the defendant's record as a whole. The sentence passed will not normally be probative or admissible at the behest of the Crown, though it may be at the behest of the defence. Where past events are disputed the judge must take care not to permit the trial unreasonably to be diverted into an investigation of matters not charged on the indictment.

As to propensity to untruthfulness, this, as it seems to us, is not the same as propensity to dishonesty. It is to be assumed, bearing in mind the frequency with which the words honest and dishonest appear in the criminal law, that Parliament deliberately chose the word "untruthful" to convey a different meaning, reflecting a defendant's account of his behaviour, or lies told when committing an offence. Previous convictions, whether for offences of dishonesty or otherwise, are therefore only likely to be capable of showing a propensity to be untruthful where, in the present case, truthfulness is an issue and, in the earlier case, either there was a plea of not guilty and the defendant gave an account, on arrest, in interview, or in evidence, which the jury must have disbelieved, or the way in which the offence was committed shows a propensity for untruthfulness, for example, by the making of false representations. The observations made above in paragraph 9 as to the number of convictions apply equally here.

As to section 101(1)(g), pre 2003 Act authorities will continue to apply when assessing whether an attack has been made on another person's character, to the extent that they are compatible with section 106.

If a judge has directed himself or herself correctly, this Court will be very slow to interfere with a ruling either as to admissibility or as to the consequences of noncompliance with the regulations for the giving of notice of intention to rely on bad character evidence. It will not interfere unless the judge's judgment as to the capacity of prior events to establish propensity is plainly wrong, or discretion has been exercised unreasonably in the Wednesbury sense (compare R v Makanjuola (1995) 2 Cr App R 469 at 473E).

Furthermore, if, following a ruling that evidence of bad character is admissible, a defendant pleads guilty, it is highly unlikely that this Court will entertain an appeal against conviction (see R v Chalkley and Jeffries [1998] 2 Cr App R 79 at 88C, 89C to E, 91C to D and 94D to F).

In cases of the kind we are considering, it is the Crown which begins the process of applying to adduce evidence of bad character. It must specify the relevant gateways. The form of application (BC2), prescribed by Rule 23E, inserted into the Crown Court Rules 1982 by Statutory Instrument 2004 No 2991 (L18) requires that the Crown set out "a description of the bad character evidence and how it is to be adduced or elicited in the proceedings including the names of any relevant witnesses." Form BC 3, similarly prescribed for the use of the defence, calls for particulars of why it is contended that the evidence ought not to be admitted. It follows from what we have already said that, in a conviction case the Crown needs to decide, at the time of giving notice of the application, whether it proposes to rely simply upon the fact of conviction or also upon the circumstances of it. The former may be enough when the circumstances of the conviction are sufficiently apparent from its description, to justify a finding that it can establish propensity, either to commit an offence of the kind charged or to be untruthful and that the requirements of section 103(3) and 101(3) can, subject to any particular matter raised on behalf of the defendant, be satisfied. For example, a succession of convictions for dwelling-house burglary, where the same is now charged, may well call for no further evidence than proof of the fact of the convictions. But where, as will often be the case, the Crown needs and proposes to rely on the circumstances of the previous convictions, those circumstances and the manner in which they are to be proved must be set out in the application. 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 convictions to be inadmissible. 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 admissibility under this Act.

Our final general observation is that, in any case in which evidence of bad character is admitted to show propensity, whether to commit offences or to be untruthful the judge in summing-up should warn the jury clearly against placing undue reliance on previous convictions. Evidence of bad character cannot be used simply to bolster a weak case, or to prejudice the minds of a jury against a defendant. In particular, the jury should be directed; that they should not conclude that the defendant is guilty or untruthful merely because he has these convictions. That, although the convictions may show a propensity, this does not mean that he has committed this offence or been untruthful in this case; that whether they in fact show a propensity is for them to decide; that they must take into account what the defendant has said about his previous convictions; and that, although they are entitled, if they find propensity as shown, to take this into account when determining guilt, propensity is only one relevant factor and they must assess its significance in the light of all the other evidence in the case. We do not purport to frame a specimen direction but the Judicial Studies Board may wish to consider these observations in relation to their helpful specimen direction No 24 on bad character.

We turn, now, to consider each of the applications.

On 26th January 2005, at Bradford Crown Court, following a pre-trial ruling by Mr Recorder Babb, this applicant pleaded guilty to theft, a plea acceptable to the Crown as an alternative to the single count of burglary in the indictment. He was sentenced to 9 months' detention in a young offender institution. He applies for leave to appeal against conviction and the Registrar has referred that application to the Full Court.

The circumstances were that, between about 2.00 and 3.30 pm on Saturday 24th July 2004, a carrier bag containing approximately £600 in cash was stolen from Paul James' bedroom within the private living quarters at a public house in Halifax. The applicant had been drinking in the bar during the early afternoon. At some stage, after 2.00 pm, but before 3.30, he had been given permission to enter the kitchen behind the bar, to make up a bottle for his child.

The Crown's case was that a stairway from the kitchen was the only effective means of access to Mr James' bedroom. It was the prosecution case that the applicant was the only person with the opportunity to enter the bedroom and steal the money at that time. Furthermore, the statement of the landlord, Mr Calland, was of considerable significance. He described the applicant asking his mother to lend him some money. She said she did not have any. Later, Mr Calland noticed the applicant go through into the back of the public house. He did not question it, "as his mum lived upstairs".

About an hour after he had asked his mum for some money, the applicant came to the bar and ordered some drinks for himself and a group of four or five others for which he paid with a £10 note. About an hour later he ordered another round and this time he paid with a £20 note.

In interview by the police, the applicant denied the offence. He claimed that he had not gone upstairs and there was, in any event, another means of access to Mr James' room. He said that he and Mr James did not get on and this was why he had been accused of responsibility for the disappearance of the money. The police established that there was another means of gaining access to the bedroom, via another staircase and door, but the Crown's case was that the door had been locked and there were no signs of it being tampered with.

The applicant having earlier pleaded not guilty to the burglary count, the matter came on for trial on 26th January 2005. Prior to the jury being sworn, the Crown sought leave for details of the applicant's previous convictions for dishonesty to be admitted, pursuant to section 101(1(d). The Crown submitted that the convictions were relevant to an important matter in issue between the defence and prosecution, namely, whether the applicant had a propensity to commit offences of this kind and whether he had a propensity to be untruthful within 103(1)(b).

Counsel for the applicant in the Court below, as before us, resisted the application, maintaining that the applicant's previous convictions for dishonesty did not demonstrate a propensity to commit burglary, and did not demonstrate a propensity to be untruthful as opposed to dishonest. The defence further submitted that, even if the conditions required by gateway (d) were met, the evidence should be excluded under section 103(3). The Recorder ruled that there was no doubt that the applicant had a bad character, within the meaning of sections 98 and 112 of the Act. He was satisfied, under gate way (d), that evidence of that bad character was relevant to propensity to commit offences of the kind with which he was charged. He had regard to the length of time between the applicant's previous convictions and the matters forming the subject of the offence before the court, as required under section 101(4). The application to admit on the basis that the applicant had a propensity to be untruthful, the Recorder concluded, had been less easy to determine and he said that he would have lacked sufficient information to determine that the applicant was shown to have a propensity to be untruthful. He therefore refused to admit the evidence via that route. The admissions of previous convictions was always likely to have an affect on the fairness of proceedings. But to accede to the defence submission to exclude the applicant's bad character would be tantamount to saying that if a defendant's record was bad enough it would always be excluded, whereas a defendant with one or two convictions was likely to have his bad character put before the jury. The Recorder concluded that admissibility of the evidence of the applicant's bad character, under (d), would not have such an adverse effect on the fairness of the proceedings that it ought not to be admitted.

No issue was raised before the Recorder in relation to the adequacy of the prosecution's notice of intention to rely on the previous convictions, although, in fact, no written notice had been given. Although the Recorder was not invited to admit in evidence the applicant's convictions when he was aged under 14, and the offences of dishonesty relied on by the prosecution were all within the theft category in Part 1 of the Schedule to the categories of offences order, he looked at the previous dishonesty offences globally, without considering, or apparently being invited by counsel to consider, the relevance to propensity of the individual convictions. In this respect, for the reasons given earlier, he was in error. For example, convictions for handling and aggravated vehicle taking, although within the theft category, do not, in our judgment, show, without more pertinent information, propensity to burgle as indicted or to steal, to which the applicant pleaded guilty. The applicant's robbery conviction, albeit also within the theft category, might, had it been analysed, have been regarded as being so prejudicial as to adversely affect the fairness of the proceedings in relation to the offence charged. But the applicant had a considerable number of convictions for burglary and theft from a dwelling, which were plainly properly admissible to show propensity to commit an offence of the kind here charged. The other evidence against the applicant was powerful, particularly that of Mr Calland, which we have rehearsed.

If, as the Recorder anticipated, appropriate directions were given to the jury, the convictions would not have had such an adverse effect on the fairness of the proceedings that they ought not to be admitted. Accordingly, although, as it seems to us, the Recorder's ruling could and should have been more narrowly confined, it was in substance correct. The Recorder was also correct to rule that the convictions for dishonesty were not, without more information, admissible to show propensity to be untruthful. It cannot generally be a sound objection to admissibility that the defendant has a very large number of previous convictions capable of showing propensity. This, as it seems to us, merely makes the evidence more compelling.

In the event, following the ruling and legal advice, the applicant unambiguously pleaded guilty to theft. As explained earlier, a plea of guilty is generally a bar to an appeal against conviction. We are wholly unpersuaded by Mr Nicol, by reference to R v Bailey, Brewin and Ghangi [2001] EWCA 733, the comment on that decision in Archbold news on 27th June 2001, paragraph 13 in Lord Bingham's speech in Attorney-General's Reference No 2 of 2001 [2004] 2 AC 72, or otherwise, that the circumstances of the applicant's plea of guilty afford him any basis for appealing against his conviction. No unfairness resulted from the Recorder's ruling. The conviction was safe. It was for those reasons that we yesterday refused his application for leave to appeal against conviction.

Gilmore:

On 11th February 2005, at Wood Green Crown Court, following a trial before Mr Recorder Etherington QC, this applicant was convicted of theft and sentenced to 4 months' imprisonment. His application for leave to appeal against conviction has been referred to the Full Court by the Registrar.

The facts were these. Between 22nd and 29th July 2004 a fax machine and two adult videos, which belonged to the complainant, were stolen from his locked garden shed in Enfield. On 29th July, at about 12.30 in the morning, police noticed the applicant in a road nearby, carrying a bag filled with electrical items and a torch. The applicant told the police that he had found the bag and torch next to some rubbish bins in the alleyway directly behind the complainant's garden and he believed it to be rubbish. He had taken the bag to see if the electrical items worked. The police then noticed that the complainant's shed door had been broken into and they alerted the complainant. He confirmed that the bag recovered from the applicant contained his property, which had been stored in the shed.

The prosecution case was that the applicant had stolen those items, or had taken them from the alleyway knowing perfectly well that they belonged to somebody else. The defence case was that the applicant had seen the property in the alleyway and climbed over a gate to take it, believing it to be abandoned as rubbish. The applicant gave evidence in his defence.

The issue for the jury was therefore whether the applicant had stolen the property from the shed or whether he had found it abandoned in the alleyway. If they found that it had not been abandoned, then they had to be sure that the appellant knew the property belonged to somebody else.

The appellant gave evidence and that evidence included a reference to the three convictions for shoplifting to which he said he had pleaded guilty. It is to the Recorder's ruling, admitting evidence in relation to those convictions, that this application is directed. The first of those three offences was committed on 4th March 2004 and conviction followed the following day. The second offence was committed on 21st March and the third on 13th April. The convictions in relation to the second and third offences took place on 30th June. The material before the Recorder, at the time of his ruling, indicated that the defendant had pleaded guilty to two of those three offences.

No written notice of intention to rely on the previous convictions was given in accordance with the Crown Court Amendment No 3 Rules of 2004. Objection was taken by the defence to the Crown's failure to provide such notice. But it was conceded by the defence that there was no prejudice in dealing with the application to extend the time limits.

The Recorder, on 10th February 2005, took into account, as he was entitled to, that it was only since 14th January 2005, and the decision of this Court, differently constituted in R v Bradley [2005] EWCA Crim 20, that it had been appreciated that the provisions of this part of the 2003 Act applied to trials taking place after 15th December 2004, whether or not the proceedings were instituted before that date.

The rules provide in 23E(7) that the Crown Court may allow oral notice and shorten or extend time limits if it is in the interests of the justice to do so. In our judgment, the Recorder's exercise of discretion, in relation to notice, bearing in mind in particular the conceded absence of prejudice, was impeccable.

It is correct, as Mr Nicol submits, that the Recorder in his ruling identified the dates of conviction of the three offences rather than the dates of commission of the offences. In the present case, having regard to the respective dates which we have rehearsed, that is of no significance. All three of these shoplifting offences were committed within a six week period, ending 3 months before the date of the offence charged. The Recorder was fully entitled to conclude that the offences showed a recent persistent propensity to steal. He was also entitled to conclude, bearing in mind, in particular, that the material before him showed pleas of guilty to two of the three offences and there was no further information about the offences before him, that none of them showed a propensity to be untruthful. There was substantial evidence against the applicant apart from the convictions. He had been found, after midnight, in a dark alley, leading to the garden in which was the shed from which the goods had been stolen. He had a torch in his possession. His explanation was that he had found the goods stacked by rubbish and had seen them there two days before. In our judgment, the previous convictions were plainly relevant to the issue of whether his possession of the goods, in those circumstances, was innocent or criminal. They established propensity to steal, and that propensity increased the likelihood of guilt. There is not, nor could there be, any criticism of the way in which the Recorder dealt with these matters in his summing-up. There is no arguable ground that Gilmore's conviction is unsafe. It was for these reasons that his application for leave to appeal against conviction was refused.

Pickstone:

On 24th January 2005 at Wolverhampton Crown, following a trial before His Honour Judge Eades, the applicant was convicted on counts 1 and 2 of indecent assault on a female and on counts 3, 5 and 6 of rape. He was acquitted on count 4 of anal rape. On 4th March he was sentenced, in total, to an extended sentence of 10-and-a-half years, the custodial term of which was 8 years and the extended period of licence two-and-a-half years. He applies for leave to appeal against conviction and that application has been referred to the Full Court by the Registrar.

In July 1993 the applicant had pleaded guilty to indecent assault on an 11 year old girl and had been sentenced to 2 years' probation.

The facts were that the applicant met his wife, the complainant's mother, before that conviction. The complainant and her twin brother were born in May 1994, and there was another sister born in 1996.

When the complainant was born, the applicant was living at a bail hostel. Some time later, at his instigation, his wife moved in with his mother. At about Christmas 1996, he was allowed back to live with the family as a result of him having entered into a contract with social services whereby he undertook never to be alone with his children or to dress or bathe them, or to do anything that might trigger his fantasies, to which, in a moment, we shall return. The other members of the family agreed to that.

On 4th July 2002, the complainant was interviewed on video by police officers, following concerns on the part of the social services that their agreement with the applicant had been broken. At that time the complainant made no allegation of sexual impropriety against the applicant. The following month the complainant and her siblings were removed from the family by the social services and were placed with foster parents.

In March 2004 the complainant girl made a series of revelations to her foster mother which led to the police investigating. In consequence, on 11th May 2004 the applicant was arrested. In interview, he gave an account which foreshadowed the evidence which he was to give before the jury. The details of the offences are immaterial for present purposes. It suffices to say that count 1, of indecent assault, related to an occasion in the applicant's car, when the girl said he had inserted his finger into her vagina; count 2, of indecent assault, had occurred, she said, in the applicant's mother's bedroom. Again, the applicant had inserted his finger into her vagina. Counts 3 and 4, of rape (and it will be recalled that the applicant was acquitted on count 4) had occurred, the girl said, downstairs in the living room. Counts 5 and 6, of rape, had occurred in the applicant's bedroom, when the complainant's twin brother was on a Playstation.

The prosecution case was based, in part, on the evidence of the complainant but, in significant part also, on the medical evidence of injuries to her hymen and vagina which were described as being consistent with digital or penile penetration, the latter being slightly the more likely. There was no anal damage found. The prosecution also relied on the applicant's previous conviction, in 1993, as showing a propensity, making it more likely that he had committed these offences.

The defence case was that the complainant had made up the allegations in order to procure the applicant's removal from the family home, which would have enabled the girl to leave her foster parents and move back home. Any injuries, according to the defence, must have been caused either accidentally or by someone else.

The defendant gave evidence that he had fantasies about girls of 9 years and upwards which had continued since the time of his previous conviction and they could be triggered by a variety of events. He denied any form of sexual misbehaviour towards the complainant. The issue for the jury was therefore the credibility of the complainant and the applicant, in the context of the medical evidence.

The Crown sought to have the applicant's 1993 conviction admitted under gateways (d, (f) and (g). The judge ruled it was admissible under (d) and (g) but not under (f). No objection before the judge was taken by the defence in relation to the lack of written notice by the prosecution of intention to rely on the conviction.

The crucial question before us is whether the judge was entitled to admit evidence of the 1993 conviction. He concluded, correctly, that the earlier offence was of the same description and the same category, within the Categories of Offences Order, as the offences charged. He expressly took into account the length of time since the previous offence and said that "a defendant's sexual mores and motivations are not necessary affected by the passage of time." He said that the passage of time was not here sufficient to make the admission of the evidence unjust. He concluded that it had significant probative value, and its admission would not adversely affect the fairness of the proceedings. He therefore admitted the evidence under (d). He also admitted it under (g) on the basis that what the defendant had said in interview was a false allegation giving rise to an attack on the complainant's character within section 106(1)(c)(i) and (2)(b). He declined to admit the evidence under (f), to correct a false impression, because of the defendant's assertion that the complainant had a motive to have the defendant removed from the matrimonial home. In that respect the judge was right. The suggestion made in interview did not amount to the giving of a false impression, which, as section 105(1) makes clear, must be "about the defendant".

In our judgment, the judge's conclusions as to (d) and (g) are unassailable. We do not accept Mr Nicol's submission that the judge imposed a burden on the defence in relation to lapse of time. Nor is the fact that the conviction was spent under the Rehabilitation of Offenders Act relevant. What the defendant said in interview was an attack on the girl's character. It is true, as Mr Nicol reminded us, that the interview took place some months before the 2003 Act came into force. He submitted that the conviction, therefore, had to be excluded under section 101(3), on the ground that, at the time of the interview, an attack or imputation on a prosecution witness, made only in interview, would not have triggered the provisions of section 1(3) of the Criminal Evidence Act 1898. Whether or not this argument was put before the trial judge, we do not accept it. The law of admissibility in a trial is that in force at the time of trial. There is no question of the defendant being tried for conduct which was not a crime at the time of its commission. Nor do we accept that the evidence had to be excluded because the defendant was not warned at the time of the interview of the possible consequences of what he said. Anyone who makes a self-serving assertion of significance in interview can expect the Crown to seek to adduce, at the subsequent trial, relevant and admissible evidence to refuse it. In this case, that included the evidence of the defendant's earlier conviction.

Mr Nicol was also critical of the summing-up. There was undoubtedly an error by the judge at pages 8 and 9 as to why the evidence had been admitted. But this was corrected at pages 40 to 41. Mr Nicol makes a further criticism of the judge's direction on credibility. We have not heard full argument as to whether it is right or indeed necessary to give a credibility direction where evidence of bad character has been admitted under this Act, nor as to whether the nature of the direction should be dependent on the gateway through which the evidence has been admitted. But, in this case, the defendant's credibility was so inextricably bound up with whether he had committed the offences that no sustainable criticism can be made of this aspect of the summing-up.

Mr Nicol also criticised the judge's failure to warn the jury that the fact that the social services had taken the girl away in 2000 was not of itself evidence that the defendant had breached his agreement with the social services. It was not, in our judgment, incumbent on the judge to give such a warning. But, in any event, its absence cannot possibly render the verdicts unsafe. The jury cannot have failed to appreciate that their deliberations should focus on the credibility of the defendant and the complainant, in the context of the medical evidence. That this happened is demonstrated by their acquittal on count 4 alleging anal rape.

There is no reason to regard Pickstone's conviction as, even arguably, unsafe. It was for these reasons that we refused him leave to appeal.