Tully & Anor, R. v

LADY JUSTICE SMITH: On 15th August 2005 in the Crown Court at Lewes, the appellants were convicted of robbery on count 1 of the indictmentand both were sentenced to four years' imprisonment. On 10th August 2005, before the robbery trial commenced, Wood pleaded guilty to breach of an anti social behaviour order (ASBO). He also pleaded guilty to resisting arrest. For breach of the ASBO, Wood was sentenced to 9 months imprisonment, consecutive to the four year sentence. For resisting arrest, he received one month’s imprisonment concurrent. The total sentence for Wood was four years and nine months' imprisonment. Both appeal against their convictions by leave of the single judge. Wood's application for leave to appeal against sentence was referred to this court. This part of the judgment deals only with the appeals against conviction.

In the early hours of 16th January 2005, the complainant, a man named Iida, was working as a taxi driver. He collected two men and two women and took them to an address in the Moulescoomb Estate near Nottingham. When they arrived at their destination, one of the women paid the £10 fare. The other woman dropped some change on the floor of the taxi. The group all looked for the money, helped by the complainant, but they found nothing. The two women left and went into a house nearby.

The complainant watched the two men leave and go into a house nearby, referred to as No 96, and he kept watch on those premises until the police arrived. When the police went into No 96, they found the two appellants. They also found the complainant's waist bag, bank cards and AA card.

Police officers gave evidence that, when they searched No 96, they found the appellant Wood covered in clothing under a bed and the appellant Tully face down under a duvet on a bed. Tully had to be restrained following arrest and Wood escaped through a window and had to be caught. He put up a considerable struggle before he was arrested. A knife wrapped in clothing was found in a drawer in the hallway but there was no forensic evidence which connected it with these appellants.

It was the prosecution case that the appellants robbed the complainant as a joint enterprise. The defence case was alibi, although no alibi notices were served.

Following their arrest the appellants made no comment in interview. At an identification procedure the taxi driver failed to pick them out.

A former girlfriend of Tully's, named Danielle Brennan, provided the police with a statement saying that she and another woman had been with the appellants and had returned to the house by taxi that night. However, she proved unwilling to come to court to give evidence and, when brought to court, she indicated that she was not prepared to give evidence in support of the prosecution case. She was treated as a hostile witness. The content of her written statement was admitted under the hearsay provisions of the Criminal Justice Act 2003. She claimed that her statement had been extracted from her by the police. She claimed that none of it was true; none of the four of their group had been in the taxi; at the material time all of them had been inside the house, No 96, where the two men had been arrested. A police officer gave evidence denying that he had extracted the statement from her in the way that she had alleged.

Neither appellant gave evidence at the trial. Tully's mother gave evidence that she had spoken to her son twice at about the time that the robbery was taking place. She had telephoned the landline of No 96.

Before the trial, the prosecution had given notice of their intention to apply to put in the previous convictions of both appellants under section 101(d) of the Criminal Justice Act 2003. The notice should have been served in March 2005. In fact it was served in June but it was given some time before the trial.

Both appellants had bad records. Wood had two convictions for robbery in 1995 when he was only 15, four in 1997 when he was 16, and two in 1998 when he was 17. He is now 25. He had not been convicted of any further offences of robbery although he had many convictions for other offences such as burglary, theft, possession of an offensive weapon, taking vehicles and assault occasioning actual bodily harm, as well as driving offences, possession of cannabis and other minor matters. In all he had 26 convictions for offences of dishonesty. The last of his convictions was in January 2005 and was for theft. An offence of domestic burglary and one of aggravated vehicle taking committed in 2001 had been committed jointly with Tully. We should mention that, of his robbery convictions, several involved the use of a knife, not to cause injury but to threaten violence.

Tully had five convictions for robbery, the most recent of which had occurred in the year 2000. He also had 23 other offences of dishonesty. As with Wood, there was no recent conviction for robbery but the offences of dishonesty had continued until 2004.

The two important issues to which the convictions were said to be relevant were that each appellant had a propensity to commit offences of the type with which he was now charged. Also the appellants had, in the past, committed offences jointly and had that propensity as well.

The prosecution application was opened initially on the basis that it was intended to put each man's robbery convictions and the joint enterprise convictions before the jury. However, as soon as Crown counsel had said that to the judge, the judge asked why the Crown was limiting itself to the robbery and joint enterprise convictions. Counsel answered that he did not wish to overegg the pudding. The judge then pointed out that the appellants were going to argue that the robberies had taken place quite a long time ago. They were going to say they were too long ago to demonstrate a propensity. The judge then referred to section 103(2) of the 2003 Act which provides that propensity to commit an offence of the type with which the defendant is charged can be demonstrated by showing that he had been convicted of an offence of the same description or category. It appeared that the judge was encouraging the Crown to extend their application to include all the offence of dishonesty committed by both appellants. The court then adjourned for luncheon. In the afternoon prosecuting counsel adopted the judge's suggestion and extended his application to include all the offences of dishonesty of both appellants.

The prosecution had come to the trial prepared to show the judge the circumstances of the robbery and joint enterprise offences. They had not brought all the details of the other offences. The judge thought that that did not matter and said that the offences spoke for themselves.

Mr Scamardella, who appeared for Wood at the trial as he has in this court, opposed the application submitting that the robbery offences were not recent enough to show propensity. But, said the judge in response, the other offences of dishonesty were more recent. Counsel referred the judge to the case of Hanson [2005]EWCA Crim.824 and submitted that the prosecution was seeking to bolster a weak case by admitting all the previous convictions. The judge plainly did not think that the case was weak.

Mr Harrison, who appeared for Tully at the trial and before this court, mentioned the lateness of the notice of application. He complained that, until late that morning, the defence had believed that the application related only to the robberies and joint enterprise offences. They now found that it was being put on a much wider basis. It was true, as the judge pointed out, that the written application was non-specific; it said only there would be an application to admit previous convictions. However the accompanying detailed information related only to the limited range of offences. There were no details of the offences of dishonesty and, Mr Harrison complained, he had not had the opportunity to take full instructions from his client. In any event, he submitted, not all the offences of dishonesty showed a propensity to commit robbery. The judge replied that it was sufficient for the Crown to prove a propensity to acquire other people's property by one means or another. Counsel submitted that the offences of dishonesty covered too wide a spectrum of conduct to prove a propensity to commit the kind of offence charged, namely robbery. He adopted Mr Scamardella's submission that the Crown were seeking to bolster a weak case. He explained that the defence was suspicious that the Crown had made this application late in the day only since they had discovered that Miss Brennan was not a willing witness in support of the prosecution case. Counsel also submitted that the fact that the two men had committed two offences together on a single occasion in 2001 was not sufficient to show that they had a propensity to commit offences together. Finally, he submitted that the admission of a large number of convictions for dishonesty would deprive the appellants of a fair trial.

In his ruling, the judge recited paragraph 7 of the decision in Hanson where Rose LJ said this:

The judge then said that he bore in mind section 101(3) of the 2003 Act. That provides:

Thus the judge had twice reminded himself of the need to ensure that the proceedings were not rendered unfair by the admission of evidence of previous convictions. The judge then continued:

He then dealt with the submission that the case against the defendants was weak and he explained his reasons for saying that it was not; on the contrary it was strong. He said that there was significant circumstantial evidence. Finally he considered the lateness of the notice of the Crown’s application for which he said there was no real excuse, but he said that the notices had been served in good time before the trial and the defence had had time to consider them. The defence was complaining that they had not been served with all the details but that did not matter because the Crown was relying on the convictions themselves, not the detailed circumstances of them. If counsel wanted more time to take instructions they could apply. Then at page 23F he said this:

The judge even admitted a conviction of the appellant Tully's which dated back to a time when he was only 13 years old.

In this appeal, counsel for the appellants advance the same grounds. The essence of their complaint is that, although the judge purported to apply the relevant provisions of the Criminal Justice Act and to follow the guidance provided by this court in Hanson, in fact he did not do so. He took far too broad an approach to the issue of propensity. He was wrong, it is submitted, to say that it was sufficient for the Crown to show a propensity to obtain other people's property by one means or another. The Crown had been right at the start to set the limit more narrowly. They had sought to prove a propensity to rob. Such a propensity, if demonstrated, would make it more likely that the appellants had committed this offence but a propensity to acquire other people's property would not have that probative quality. Moreover, admitting so broad a category of offences made the proceedings unfair. Counsel for the appellants did not concede that the judge would have been justified in admitting the narrower set of convictions for robbery and joint enterprise, but both accepted that, had the judge made such an order, it would not have been appealable.

Mr Hall for the Crown has not sought to uphold the judge's decision to extend the scope of the application. Indeed, he frankly admits that he now wishes that he had not taken up the invitation that the judge extended to him. It seems to us that that is plainly right. It is perhaps useful to remind ourselves of what Rose LJ said in paragraph 4 of Hanson:

Here he was plainly stressing the need for judges to strike a balance between the right of the prosecution to put in such convictions as would have real probative value in the case and the right of the defence not to be prejudiced by damaging evidence which had no or insufficient probative value.

In our view the judge was wrong to hold, in effect, that a propensity to obtain other people's property by one means or another made it more likely that these appellants would have committed this offence. In fact he never said that in terms, but that was the implied basis of his decision. The whole thrust of the guidance in Hanson is that the court should only admit convictions which have some probative force by reason of their similarity to the offence charged. To allow the Crown to prove a propensity to obtain other people's property by some means or another is, in our view, to allow them to cast far too wide a net. Such evidence has limited probative value and has a potentially prejudicial and harmful effect. In Hanson the court said that the judge should look for similarities between what the defendant had done in the past and what he was now charged with. Those similarities did not have to be striking in the way that similar fact evidence has to be, but there must be a degree of similarity. The fact that the convictions are for offences of the same description or category does not automatically mean that they should be admitted. It is not possible to define the degree of similarity which must be shown. That must be for the judge's discretion and judgment to be exercised on the facts and circumstances of the individual case. But the judge must strike a balance and in doing so must remember the words of section 101(3) to which we have already referred.

Here the judge appears to have understood section 103(2) to give him complete freedom to admit all convictions of the same category as the offence of robbery regardless of their probative effect. Robbery being a theft offence, all convictions for other theft offences could go in to prove a general propensity to acquire other people's property by one means or another. The judge did not consider whether evidence of those convictions would make it more likely that each appellant had committed this offence. It seems us that, had he done so, he would have concluded that such evidence had little probative force. There are a great many people who have a propensity to acquire other people's property by one means or another. On the other hand, previous convictions for robbery would be much more probative and a conviction for robbing somebody using a knife to reinforce a threat of violence would increase the probative effect. In short, the more similar the circumstances of the past offences to the present allegation, the greater the probative force.

As the judge said, the effect of admitting any conviction is prejudicial to the defence but Parliament has permitted it. However, by section 101(3) Parliament has expressly required the judge to consider the prejudicial effect and has directed him not to admit a conviction if that would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. Admission of a large number of convictions for different offences of dishonesty is bound to be more prejudicial than a limited number of a more specific type. It does not appear to us that the judge properly considered the extent of the prejudice in this case. His approach was to say that Parliament had decided that such convictions should be admitted and therefore they should go in. In our judgment, that was not sufficient and the judge should have considered the effect of the admission of this wide range of convictions on the fairness of this individual trial. True it is that he rejected the submission that the prosecution case was weak and the convictions should not be used to bolster it. We think that he was right about that. But even where the evidence is strong, the judge should still consider the prejudicial effect of what he is being asked to admit on the individual trial. In our view, the judge fell into error for these reasons in dealing with the bad character application in the way that he did.

The next question is whether that error means that these convictions are unsafe and should be set aside. The appellants submit that it does because the admission of too many convictions rendered the whole trial process unfair. In many cases, we think that there would be force in that submission. However, as Mr Hall for the Crown has submitted, there was very strong evidence in this case. Even though the complainant failed to pick out the appellants at the identification procedure, there was evidence that he had kept watch on the house to which they had run and it seems fanciful that some other people could have robbed the driver and run into the same house. However, we were told by the appellants’ counsel that two other youths were found in the same premises when the police arrived at the house. They submit that there is every possibility that it could have been those two youths who had committed this offence of robbery. The descriptions given by the taxi driver were very general and in some respects not wholly consistent with the appearance of these appellants. However, the appellants never ran the case that the two youths had been responsible. Their case was a wholly negative one. They did not give evidence; they did not offer any explanation in the course of their interviews. Mr Hall drew attention to the way in which the appellants sought to resist arrest, Mr Wood having run away from the police. Counsel for Wood made the point that he had a good reason to wish to escape from the police - he was in breach of an anti-social behaviour order which forbade him to be in this part of the town on this estate. He had a good reason to run away. But that explanation was never offered to the jury.

Mr Hall drew attention to the effect of Miss Brennan's evidence. Until the coming into force of the Criminal Justice Act 2003, the effect of her evidence, she having become hostile and resiled from her previous statement, would have been of no effect. However, it is not suggested that the judge erred in admitting her evidence under the hearsay rules and he gave a proper direction to the jury as to the approach that they should take to it. He told them that they were entitled to take it into account if they rejected her explanation for the way in which it had been extracted, as she claimed, from her. That, as it seems to us, was significant evidence in support of the Crown's case if the jury did reject her explanation.

In our view, it was most unfortunate that the judge suggested widening the scope of the Crown's application and unfortunate that the Crown acceded to the temptation to accept that invitation. Had the Crown proceeded with their limited application, we are quite satisfied that the judge would have been entitled to admit the convictions for robbery. We think that they were not so stale that they should have been disregarded and there were certainly enough of them in respect of each appellant to demonstrate a propensity to commit robbery. They had the necessary probative effect. No real complaint could in our view have been made of disproportionate prejudice. We think that virtually any judge would have admitted those convictions. Whether the judge would or should have admitted the convictions which tended to demonstrate a propensity to commit offences together is more difficult. We think that the judge may well have been justified in admitting them as it appears that joint enterprise was an important issue in the case. There is no doubt in our minds that if that course had been followed these appellants would have been convicted. For the reasons which we have just outlined the evidence was strong, but with the properly admitted convictions there can, in our judgment, be no doubt as to what would have been the outcome.

Standing back from this case and reviewing it in the round, we have no doubt about the safety of these convictions. Accordingly, the appeals against conviction are dismissed.

LADY JUSTICE SMITH: We are not going to say any more about the facts of this matter. The appellant Wood complains that a sentence of nine months' imprisonment consecutive to the four years to which he has been sentenced for robbery was excessive, bearing in mind that the only breach of the anti-social behaviour order was his presence on the Moulescoomb Estate. The ASBO had originally forbade him to enter that part of the City and also not to misbehave himself in any way. Mr Scamardella makes the point, and we consider that it has some force, that the only additional matter for which he has not been punished is being on the Moulescoomb Estate. For that, we accept his submission that nine months' imprisonment is excessive. However, we do consider that his presence on the estate, which amounted to a flagrant breach of the ASBO, does merit some recognition. We think that a term of three months' imprisonment is sufficient to mark that aspect of the breach.

Accordingly, the appeal against sentence will be allowed to the extent that the nine month sentence is quashed and replaced by a sentence of three months' imprisonment. That three months is to run consecutive to the four years imposed under count 1. The one month imprisonment imposed for resisting arrest which the judge directed should be concurrent with the breach of the ASBO sentence but consecutive to count 1 remains in place. The effect is that the appellant will serve four years and three months' imprisonment.