Nelson, R v

LORD JUSTICE KEENE: On 1st September 2006, in the Crown Court at Woolwich before His Honour Judge Carroll, after a four day trial, this appellant was convicted of affray, that being count 1 on the indictment, and sentenced to 10 months' imprisonment. He was acquitted of assault occasioning actual bodily harm. He now appeals against conviction by leave of the Single Judge.

Both those charges arose out of an incident in a block of flats in Sydenham, South East London. The appellant lived there and across the corridor from him there lived a man called Brian Kelsey.

On the evening of 2nd May 2005, Kelsey was visited by a friend of his, Dale Kinvig, and Kinvig's partner and baby son were present as well. Kinvig gave evidence at trial but Kelsey did not and the police have found it difficult to contact him. Dale Kinvig's evidence was that when he left Brian Kelsey's flat at about 10.30 pm, the appellant had come out of his flat shouting angrily. Kinvig's partner and son had gone downstairs because they were frightened. The appellant went back into his own flat and Kinvig went towards the lift. But the appellant then reappeared with a machete and began to swing this over Mr Kinvig's head. He hit the wall and lifted the frame with the machete. He swung it about ten times coming, it was said, within about 2 inches or so of Mr Kinvig's head. This went on for about half a minute.

There was a further incident in the lift, according to Mr Kinvig. The appellant forced his way into the lift and there he grabbed Mr Kinvig by the hair and hit him on the head with the handle of the machete. At some point the appellant, it was said, held the machete to Mr Kinvig's neck, causing a graze. That was the basis of the charge of assault occasioning actual bodily harm.

Police officers who arrived described the appellant as being drunk, his flat as smelling of cannabis and one of them had seen him with a lit cannabis cigarette. The appellant had handed over a knife and two machetes to police officers.

The defence case was that the appellant had been the victim of racist abuse from his neighbours. He had heard someone kicking his door in, and found himself confronted by his neighbour, Mr Kelsey and by Mr Kinvig. Two other men then arrived, it was said, and the appellant armed himself with a knife because he feared for his safety and for that of his son. He had retreated inside the flat, and Mr Kinvig's account of events was simply untrue. Indeed, during the course of cross-examination of Mr Kinvig, it was put to him that the allegations against the appellant had been fabricated by Mr Kinvig and Mr Kelsey together, because of a long running dispute between Mr Kelsey and the appellant. In effect it was being said in cross-examination that Mr Kelsey and Mr Kinvig had conspired together to fabricate the account given in evidence for an ulterior motive.

The Crown sought to put before the jury evidence of certain previous convictions of the appellant and the judge allowed them in against a defence objection. The convictions in question were for supplying and possession of drugs, in 1992, and for possession of cannabis, in 2002. Other convictions, some for theft and deception, back in the 1980s, and one for criminal damage in 2003 were not put before the jury.

The judge in his ruling on admissibility found that the requirements of section 101(1)(g) of the Criminal Justice Act 2003 were satisfied. That is one of the so-called gateway provisions for the admission of bad character evidence and it provides that evidence of the defendant's bad character is admissible if, but only if: "(g) the defendant has made an attack on another person's character".

The judge ruled that there had been an attack, during cross-examination of Kinvig, on that witness's character in the light of the assertions made by the appellant's counsel, to which we have already referred. The judge also went on in that same ruling to refer to section 106(1)(c) of the 2003 Act, which provides that for the purposes of section 101(1)(g) a defendant makes an attack on another person's character if: "(c) evidence is given of an imputation about the other person made by the defendant (i) on being questioned under caution before charge about the offence with which he is charged, or (ii) on being charged with the offence, or officially informed that he might be prosecuted for it."

In the course of his interview the appellant had asserted that Brian Kelsey, his neighbour, and those in that flat were prolific drug takers, indeed Class A drug takers, and had told lies about him. The judge found that to be an attack on the character of others, especially Mr Kelsey, which fell written the terms of section 106(1)(c). For that reason also he concluded that gateway (g) rendered the evidence of the appellant's previous convictions admissible. He went on to consider and reject a submission that it would be unfair to admit them, and he indicated that his ruling on fairness operated both under the 2003 Act, presumably a reference to section 101(3), and under section 78 of the Police and Criminal Evidence Act 1984.

Having admitted the appellant's previous drug convictions the judge, in due course, gave certain directions to the jury about their approach to the convictions. We shall have to come to those directions in due course.

That ruling and the subsequent directions to the jury form the basis for the grounds of appeal against conviction. So far as the ruling is concerned, it is not very vigorously contended today that the attack on the character of Mr Kinvig did not satisfy section 101(1)(g). The focus of Mr Anders' submission, on behalf of the appellant, so far as the gateway provisions are concerned, is the reliance by the judge on what the appellant had said in interview about Mr Kelsey. It is pointed out by Mr Anders that it was the Crown which sought to put in this part of the interview, where the appellant had commented about Mr Kelsey's drug taking, and that the defence had sought its exclusion.

Mr Anders argues that those comments were not relevant to any issue in the case and should not have gone before the jury. Had they not gone before the jury, then the comments in interview could not have formed the basis for an application under gateway (g) to admit any of the previous convictions of the appellant. Consequently, the allowing in of that part of the interview was itself an error on the part of the judge. Criticism is also made, to which we shall come, about the judge's ruling on fairness in that respect.

We take the gateway aspect of the case first. There is no doubt that the wording of section 101(1)(g), "an attack on another person's character", does not confine that gateway to the situation where a defendant, personally or through his advocate, attacks the character of a prosecution witness. It goes beyond the wording used in the earlier statutory provision which dealt with this area of law, namely section 1(3) of the Criminal Evidence Act 1898, which by paragraph (ii) referred to "imputations on the character of the prosecutor or the witnesses for the prosecution or the deceased victim of the alleged crime." Apart from the case where there was a deceased victim, the earlier statutory provision effectively confined this basis for admitting evidence of a defendant's bad character to situations where there had been an attack during the trial on the character of a prosecution witness, including a person whose statement was read at trial. It did not extend to cases where the defendant attacked the character of a non-witness, save that of a deceased victim (see the decision in R v Lee (1976) 62 Cr App R 33).

That has been changed by the 2003 Act, which simply refers to "an attack on another person's character", apparently irrespective of whether that person is a witness at trial. It must be taken, in our view, as Parliament's intention deliberately to widen the gateway in this fashion. Nonetheless, we would emphasise that the trial judge still has a discretion as to whether the jury should hear about a defendant's bad character when he has merely made imputations about the character of a non-witness. Not only does he have such a general discretion under section 78 of the Police and Criminal Evidence Act 1984, but section 101(3) of the 2003 Act specifically provides that: "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."

How the trial judge exercises that discretion is a matter for him or her, but it seems to this Court that it would be unusual for evidence of a defendant's bad character to be admitted when the only basis for so doing was an attack on the character of a non-witness who is also a non-victim. The fairness of the proceedings would normally be materially damaged by so doing.

Having said that, the facts of cases do vary. Those in the present case seem to us to be such that an attack by the appellant on the character of Brian Kelsey, albeit a non- witness, could properly provide the foundation for the admission of the appellant's previous convictions. We take that view because the basis of the attack on the witness, Mr Kinvig, was that he had effectively conspired with Mr Kelsey, with the result that imputations on Mr Kelsey's character might influence the jury in their view of Mr Kinvig's evidence. The appellant was saying that those two men had jointly fabricated the allegations against him. If therefore the accusations by the appellant about Mr Kelsey's drug taking were properly before the jury in the first place, this might have been one of those rare cases where an attack on a non-witness's character could satisfy both gateway (g) and section 101(3).

However, as we have indicated, that presupposes that those allegations in interview about Mr Kelsey's drug taking were properly before the jury in the first place. It is certainly true that allegations made by a defendant, in interview, as were these allegations, about a person's character may meet the requirements for an attack under gateway (g). That follows from the terms of section 106(1)(c) set out earlier. But that provision depends on the fact that, as the opening words say, "evidence is given" of such an imputation made in interview, that is to say, evidence is given at trial about what was said by the defendant in the course of interview.

The defence in the present case objected to that part of the interview going in before the jury, as the Crown were seeking. The judge does not seem in his ruling to have expressly addressed this issue and certainly not with any great clarity. It is, in our view, difficult to see what relevance to the issues before the jury the appellant's comments in interview about Mr Kelsey's drug taking could have had. Certainly it would be improper for the prosecution to seek to get such comments before a jury simply to provide a basis for satisfying gateway (g) and getting the defendant's previous convictions put in evidence. We do not seek to suggest that that was the motivation of the prosecution in this case but nonetheless, objectively speaking, that seems to us to have been the situation which arose. It follows that, in our judgment, this was not a proper basis for meeting the requirements of gateway (g) on admissibility.

In the end, however, this is not of significance. The judge found that gateway (g)'s requirements were met by the attack on the witness, Mr Kinvig. That finding seems to us to be unassailable. Moreover, the judge made it clear in his ruling that that was a sufficient basis, by itself, for his decision to admit. In his ruling, at page 5 of the transcript, he said, having just dealt with the argument about Mr Kelsey:

Mr Anders goes on to challenge the judge's finding that it was fair to allow the previous drugs convictions to go before the jury. In particular, he says that the judge approached in a confused way the issue of fairness and that the judge was influenced in his ruling on fairness about the main witness and the attack upon Mr Kinvig, by the view which he had taken of the interview issue. Mr Anders questions whether the judge considered the fairness of the admission of the previous convictions simply based on the attack on Mr Kinvig, a witness at trial.

We cannot accept that. It seems to us that it is clear from the passage which we have quoted a few moments ago, that the judge here was applying his mind specifically, when he dealt with the attack on the main witness in the case, Mr Kinvig, to the fairness of admitting the previous convictions within that particular context and without being influenced in that respect by the view he had taken on the interview issue. It is of course well-established that this Court will not lightly interfere with the exercise of discretion in such a situation by the trial judge because, at this stage of the process, it is a matter essentially for the judge's own judgment and discretion. We cannot see that it was not open to the judge on the facts here to arrive at the conclusion which he did, given the attack on the character of Mr Kinvig. His credibility and that of the appellant were central to the case. Any prejudice to the appellant beyond the issue of credibility was extremely limited. The convictions allowed in were not ones of violence, and in any event there was already strong evidence about the appellant's use of drugs on the very evening of this incident coming from police witnesses. One of those, Sergeant Janion, spoke of smelling cannabis when talking to the appellant at his front door; another, Sergeant Mackin, noticed a strong smell of cannabis in the flat and testified that the appellant picked up a lighted joint from an ashtray in the flat. So the appellant's links with illegal drugs were already well before the jury. The judge's decision on the fairness of admitting the past convictions was one which he could properly make in all those circumstances.

The other issue in the case concerns the judge's directions to the jury on that evidence of the past convictions. What the judge did in summing-up was to explain how an attack on the character of a victim could lead to evidence of the defendant's character going in before them. He suggested that it might be relevant in assessing the defendant's allegation of drug taking in Mr Kelsey's flat. Then he went on to say this, beginning at page 23F of the transcript of his summing-up:

That direction did focus the jury's attention on credibility and it emphasised, rightly in our view, that it did not follow that the defendant was incapable of telling the truth. What it did not include was anything to the effect that bad character by itself could not prove guilt and that the jury should not jump to the conclusion that the defendant was guilty just because of that bad character. There is no doubt that the jury should have been directed to that effect, and Mr Anders is quite right in criticising that omission (see in particular the decisions of this Court in R v Hanson [2005] EWCA Crim 824, [2005] 2 Cr App R 21, at paragraph 18, and R v Edwards [2005] EWCA Crim 1813, [2006] 1 Cr App R 3, at paragraph 3).

However, in the circumstances of this case, the Court does not regard this omission, regrettable though it is, as casting any real doubt on the safety of the conviction for affray. First of all, there was clear evidence from police witnesses of the machetes found in the appellant's flat and new scratches to the doorframe of the lift, consistent with the complainant Mr Kinvig's evidence, including one deep scratch on top of the head of the door. There was also evidence of the appellant's condition at the time, affected by alcohol and cannabis, which was also potentially relevant.

Moreover, and of some importance, the jury acquitted the appellant on the charge of assault occasioning actual bodily harm. It is therefore apparent that they did not jump to the conclusion that he was guilty of these charges because of his previous drugs convictions. They patently avoided the danger against which the direction, which should have been given and was not given, is intended to guard.

In all those circumstances, we are satisfied that this conviction is safe and the appeal against it is therefore dismissed.