Campbell v R

Prior to the Criminal Justice Act 2003 it was rare for a jury to be given details of a defendant’s previous criminal record. Since that Act has come into force it has become much more common. There have been a number of appeals in relation to the direction given by the judge to the jury in relation to a defendant’s previous convictions. This is another such case. Two previous convictions of the appellant were placed before the jury. The appellant contends that his conviction is unsafe because the judge gave the jury a direction in relation to the relevance of his previous convictions that was not appropriate. This appeal raises not only the question of the approach of the trial judge when summing up in relation to previous convictions. It raises the more general question of the approach of the trial judge and of this court to directions that deal with what are essentially matters of common sense.

On 7 September 2006 in the Crown Court at Reading before HH Judge Risius the appellant was convicted of one offence of false imprisonment and one offence of assault occasioning actual bodily harm. On 30 November 2006 he was sentenced by Judge Risius in respect of the first offence to an indeterminate sentence for public protection pursuant to section 225 of the Criminal Justice Act 2003, with a minimum term to be served before being considered for release of 2 years. 208 days on remand was ordered to count towards this sentence. No separate penalty was imposed in relation to the second offence. The appellant was granted permission to appeal against conviction by Eady J.

At the end of the hearing we dismissed the appeal. The following are our reasons for doing so.

The complainant’s evidence was that she lived in a one bedroom house in Reading. She met the appellant through a former girlfriend of his and he would visit her house to take drugs with her. Several other people were staying there. The relationship with the appellant was, at times, sexual, but she found him frightening. In the middle of March 2006 the appellant gained access to her house by kicking down the door and then moved a television set and a commode into her bedroom. He told her to remain in that room and she did so because she was frightened of him. The next day she attempted to leave her house, but he dragged her back by her hair. He left the house occasionally for short periods and, on Friday 17 March, went to the Doctor’s surgery, which was, however, within sight of the flat, so that she was too frightened to leave then.

That evening, when the appellant was asleep, the complainant enlisted the help of a friend and ran away to the house of another friend, Declan, where she stayed the night. The appellant arrived at Declan’s house on the evening of 18 March, very angry. He dragged her into the hall by her shoulders, catching her neck and the back of her head against a fire extinguisher. He then banged her head against the wall and tried to strangle her. The police were called but she did not at that stage complain of any injuries. The following day, however, she attended the police station and reported the appellant’s behaviour. The police noticed scratches on her neck and found blood in the hall of Declan’s house. The complainant declined to submit herself to a medical inspection.

The appellant gave evidence. He confirmed that the complainant was his girl friend and that they smoked crack cocaine together. He said that he had been sleeping at her flat but spent the days away from the flat. He had never done anything to prevent the complainant from leaving the flat. There had been no arguments and no violence. He had visited the Doctor, two blocks away, on the 17 March. The complainant left on her own accord to go to Declan’s. The complainant’s allegations of assault and false imprisonment were invented.

The 2003 Act makes lengthy provision for the circumstances in which evidence of a defendant’s bad character is admissible:

The appellant has many previous convictions, starting with one for criminal damage in 1984. These include offences of violence and a number of offences of dishonesty. The Crown sought and obtained permission from the judge to adduce evidence of only two previous offences. The first was a conviction on 8 November 2002 for actual bodily harm to Janet Williams, a former girlfriend. The second was a conviction on 22 September 2004 for battery of his then current girlfriend, Susan Addison. His conduct on those occasions included hair pulling, grabbing by the throat and strangulation. He pleaded guilty on each occasion. The ground upon which permission was sought and given to adduce this evidence was that it showed a propensity to commit acts of violence towards women and was thus admissible pursuant to section 101(1) (d) of the Act. Although the admission of this evidence was opposed at the time, the judge’s decision to admit it was not challenged before us.

The judge started his summing up by directing the jury as to the relevant law, dealing with the burden and standard of proof and the ingredients of the offences with which the appellant was charged. He then went on to give the jury directions as to the relevance of evidence that they had heard in relation to the bad character both of the appellant and of the complainant. Those directions were as follows:

The latter, general, part of the direction in relation to the appellant’s bad character accorded with a specimen direction published by the Judicial Studies Board, with the advice that it could be used “in any case”. The writer of the direction added this note:

The judge gave the jury the following short direction in relation to the credibility of the witnesses:

The jury retired to consider their verdict at 1.05 pm. At 3.35 pm they sent a note with two questions. The second was as follows:

The judge discussed with counsel how he should answer this question. It was agreed that the judge should direct the jury that there was nothing else that they should know. The judge suggested that he should repeat the direction that he had previously given in relation to character, observing that while it may not have been very clear the first time, it was very much in the standard terms. Mr Fortson, who was acting for the appellant, agreed that this was the appropriate response because “elaboration will simply get us into difficulty”. After the judge had repeated his earlier direction and the jury had retired again, Mr Fortson raised the question as to whether it had been appropriate for the judge to include the direction that the jury could take the appellant’s bad character into account when deciding whether he had been truthful. That is the question that is raised on behalf of the appellant by this appeal.

The primary ground of appeal advanced by Mr Fortson was as follows. The fact that the appellant had two previous offences of violence, to which he had pleaded guilty, had no bearing on his propensity to tell the truth. The judge should not have directed the jury that his previous convictions might have relevance to his credibility. This material misdirection rendered the jury’s verdict unsafe, having particular regard to the fact that they had returned to seek additional guidance in relation to the appellant’s evidence of bad character.

Mr Fortson sought to buttress this proposition by a submission that was a little more complex. Section 101 of the 2003 Act sets out a number of different ‘gateways’ through which evidence of a defendant’s bad character can be admitted. In directing the jury as to the relevance of such evidence, the judge should have regard only to the gateway through which the evidence was introduced, or any other gateway through which the evidence could have been introduced. Thus he argued that if evidence was introduced under section 101(1)(g) it could only be used by the jury to show propensity to offend as charged if it also satisfied the requirements of section 101(1)(d). In the present case the evidence was introduced under section 101 (1)(d). The ‘important matter in issue’ was whether the appellant had a propensity to commit offences of the kind with which he was charged. The evidence had not and could not have been introduced because it bore on the question of whether the appellant had a propensity to be untruthful. It followed that the judge should not have directed the jury that it was open to them to treat the evidence as bearing on his credibility.

In support of his submissions, Mr Fortson referred us to the judgment of this court, delivered by Fulford J, in R v Meyer [2006] EWCA Crim 1126. The appellant in that case had been convicted of causing grievous bodily harm with intent. He had struck the victim’s face with his fist, fracturing his cheekbone, and asserted that he had done so in self defence. An important issue of fact was whether he had a stone in his clenched fist when he struck the blow. Evidence was given that the appellant had two recent previous convictions, one for unlawful wounding and one of causing actual bodily harm. He had pleaded guilty to both offences. The judge gave a bad character direction that included a direction that this was potentially relevant to credibility. This was in the same terms as the direction given by Judge Risius – the JSB specimen direction.

At the start of his judgment Fulford J recorded that it was agreed between prosecution and defence that the previous convictions were not relevant to the appellant’s credibility. Later he commented that once evidence of bad character was admitted it was incumbent on the judge to give the jury a careful and focused direction as to its true relevance. As to this, he commented:

Mr Fortson submitted that the present case was on all fours with Meyer. The judge’s direction on credibility was inappropriate and the appeal should be allowed.

Before 2003 it was unusual for a jury to be told of a defendant’s bad character. When they were, directions in relation to that character were a problem area. This was because of a reluctance to permit the jury to draw natural inferences from the fact that the defendant had previous convictions. The reason for that reluctance was concern that, unless restrained by the direction of the judge, the jury would attach more significance to the defendant’s bad character than it merited.

Section 1(f) of the Criminal Evidence Act 1898 permitted cross-examination of a defendant who gave evidence as to his previous convictions or bad character in specified circumstances, the most common being if he attacked the character of a prosecution witness. In that event the judge was required to direct the jury that the defendant’s previous convictions were relevant only to his credibility; they were no indication that he was more likely to have committed the offence with which he was charged. Such a direction was contrary to common sense, particularly where the previous convictions showed a propensity to commit the very type of offence with which the defendant was charged.

The duty to give such a direction contrasted with the duty of the judge, where a defendant had a good character, to direct that good character not merely made it more likely that the defendant was telling the truth but made it less likely that he had committed the offence with which he was charged. Although the latter was no more than common sense that one might have expected a jury to be capable of applying without assistance, failure to give either limb of the direction automatically resulted in the quashing of a conviction.

This lamentable state of affairs kept the Court of Appeal and, not infrequently, the House of Lords, busy with appeals against jury directions in respect of character. It is an extreme example of the way that directions that are desirable by way of assisting the jury to draw logical conclusions from the evidence have become treated as if they are mandatory requirements of law.

This often occurs in the following way. The Court of Appeal criticises an aspect of a judge’s summing up and suggests an alternative direction that would have been appropriate. The Judicial Studies Board then incorporates this suggestion in a specimen direction. Thereafter, if the specimen direction is not given, this is treated as a defect in the summing up that warrants permission to appeal and has, on occasion, been treated in this court as rendering the conviction unsafe without considering whether the jury would have reached the same conclusion by the application of common sense to the evidence, whether or not the specimen direction was given. Failure to give a direction that is no more than assistance in applying common sense to the evidence should not automatically be treated as a ground of appeal, let alone as a reason to allow an appeal.

The change in the law relating to character evidence introduced by the 2003 Act should be the occasion for simplifying the directions to juries in relation to such evidence. Decisions in this field before the relevant provisions of the 2003 Act came into force are unhelpful and should not be cited. Where evidence of bad character is introduced the jury should be given assistance as to its relevance that is tailored to the facts of the individual case. Relevance can normally be deduced by the application of common sense. The summing up that assists the jury with the relevance of bad character evidence will accord with common sense and assist them to avoid prejudice that is at odds with this.

We reject Mr Fortson’s submission that the jury can only use evidence of bad character for a particular purpose if it could have been introduced through the relevant gateway. Once the evidence has been admitted through a gateway it is open to the jury to attach significance to it in any respect in which it is relevant. To direct them only to have regard to it for some purposes and to disregard its relevance in other respects would be to revert to the unsatisfactory practices that prevailed under the old law.

Lord Woolf CJ made plain that it was open to the jury to use character evidence, once admitted, in any respect in which it was relevant when giving the judgment of this court in R v Highton and others [2005] EWCA Crim 1985; [2005] 1 Cr App R 7. In each of the three appeals before the court evidence of the appellant’s bad character had been ruled admissible under section 101(1)(g) of the 2003 Act on the ground that the appellant had attacked the character of another person. It was, as we understand it, argued for each appellant that the jury should have been directed that this evidence could only be used in relation to credibility, rather than as evidencing a propensity to commit the offences charged or to be untruthful. In short, reliance was placed on the old approach to character evidence. Lord Woolf swept this away with the following short but important paragraph:

What should a jury’s common sense tell them about the relevance of the fact that a defendant has, or does not have, previous convictions? It may tell them that it is more likely that he committed the offence with which he is charged if he has already demonstrated that he is prepared to break the law, the more so if he has demonstrated a propensity for committing offences of the same nature as that with which he is charged. The extent of the significance to be attached to previous convictions is likely to depend upon a number of variables, including their number, their similarity to the offence charged and how recently they were incurred and the nature of his defence.

In considering the inference to be drawn from bad character the courts have in the past drawn a distinction between propensity to offend and credibility. This distinction is usually unrealistic. If the jury learn that a defendant has shown a propensity to commit criminal acts they may well at one and the same time conclude that it is more likely that he is guilty and that he is less likely to be telling the truth when he says that he is not.

Section 101 (1) (d) of the 2003 Act renders admissible bad character evidence where it is ‘relevant to an important matter in issue between the defendant and the prosecution’. Section 103 (1)(b) provides that matters in issue between the prosecution and defence include ‘the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect’. It will be comparatively rare for the case of a defendant who has pleaded not guilty not to involve some element that the prosecution suggest is untruthful. It does not, however follow, that, whenever there is an issue as to whether the defendant’s case is truthful, evidence can be admitted to show that he has a propensity to be untruthful.

The question of whether a defendant has a propensity for being untruthful will not normally be capable of being described as an important matter in issue between the defendant and the prosecution. A propensity for untruthfulness will not, of itself, go very far to establishing the committal of criminal offence. To suggest that a propensity for untruthfulness makes it more likely that a defendant has lied to the jury is not likely to help them. If they apply common sense they will conclude that a defendant who has committed a criminal offence may well be prepared to lie about it, even if he has not shown a propensity for lying whereas a defendant who has not committed the offence charged will be likely to tell the truth, even if he has shown a propensity for telling lies. In short, whether or not a defendant is telling the truth to the jury is likely to depend simply on whether or not he committed the offence charged. The jury should focus on the latter question rather than on whether or not he has a propensity for telling lies.

For these reasons, the only circumstance in which there is likely to be an important issue as to whether a defendant has a propensity to tell lies is where telling lies is an element of the offence charged. Even then, the propensity to tell lies is only likely to be significant if the lying is in the context of committing criminal offences, in which case the evidence is likely to be admissible under section 103(1)(a)

The practice has developed in this country, unlike some other common law jurisdictions, of trying to assist the jury to evaluate the evidence that they have heard by giving a summary of the relevant parts of the evidence and directions as to how to approach the evidence which are essentially matters of common sense. In such circumstances it is plainly desirable to give the jury a direction in respect of character evidence. In R v Hanson and others[2005] EWCA Crim 824; [2005] 2 Cr App R 21 the Vice-President, Rose LJ, gave guidance as to how the court should apply the provisions as to admissibility of character evidence introduced by the 2003 Act. He added:

This general observation immediately led to appeals on the ground that the summing-up had not been complied with. This led the Vice-President to proffer further guidance in R v Edwards and others[2005] EWCA Crim 1813; [2006] 1 Cr App R 3:

The summing up in Chohan, to which the Vic-President referred, was indeed exemplary. It was not simply a recital of principles but was tailored to the particular facts of the case. It drew attention to features in the defendant’s previous criminal behaviour that were alleged to have been replicated in the offence with which he was charged. It referred to both prosecution and defence counsel’s submissions on the relevance of the evidence of previous convictions and contained a very helpful warning against placing too much weight on the defendant’s previous convictions:

Everything that the judge said to the jury in Chohan accorded with common sense, including the last direction, for the defendant’s previous convictions were for offences which involved dishonesty. As the decision in Meyer indicates, however, such a direction will not always be appropriate and, for reasons that we shall explain, may in other cases be of limited assistance to the jury.

The relevant Judicial Studies Board specimen directions in relation to bad character are as follows:

We would make the following observations about these specimen directions. They direct the judge to identify the gateway or gateways through which the bad character has been admitted by reference to the wording of the Act. We question the desirability of this. It is right that in Edwards the Vice-President said that ‘it should be explained why the jury has heard the evidence’ but we think that reciting to the jury the statutory wording in relation to the relevant gateway is likely to be unhelpful. It cannot assist the jury to be told “this evidence has been admitted because it may help you to resolve an issue between the defendant and the prosecution, namely whether the defendant has a propensity to commit offences of the kind with which he is charged”. Nor is that part of the specimen direction that relates to gateway (f) likely to assist the jury.

If the jury is told in simple language and with reference, where appropriate, to the particular facts of the case, why the bad character evidence may be relevant, this will necessarily encompass the gateway by which the evidence was admitted.

In the rare case where evidence of bad character has been admitted because the question of whether the defendant has a propensity to be untruthful is an important matter in issue between the defendant and the prosecution, the direction should always explain the relevance of the evidence with reference to the particular facts which make that matter important.

Where evidence of a criminal or otherwise blameworthy act on the part of the defendant is adduced because it bears on a particular issue of fact and this evidence has no bearing on the defendant’s propensity to commit the offence charged, this should be made plain to the jury.

In general we do not consider it helpful to include this passage of the specimen direction:

We also question whether it is helpful to tell the jury that they can, if they think it right “take the evidence into account when deciding whether or not the defendant committed the offences with which he is charged”. The only reason that the jury have heard the evidence is that it may assist them in deciding that question and they hardly need to be told this in those terms.

It is, of course, clearly highly desirable that the jury should be warned against attaching too much weight to bad character evidence let alone concluding that the defendant is guilty simply because of his bad character.

In the present case the judge gave the jury the Judicial Studies Board’s specimen directions without relating them to the facts of the case. We doubt whether this can greatly have assisted the jury, which may explain why they came back to seek further guidance. We do not criticise him for doing so, for he was adopting what was a common approach. But a more helpful direction would have been along the following lines:

Had such a direction been given it would have conveyed more simply to the jury why the evidence of the appellant’s convictions was before them and what its potential relevance was. We should emphasise that we are not ourselves attempting to provide a specimen direction to be used in future cases. We are simply illustrating one way in which a bad character direction could helpfully have been tailored to the facts of this particular case.

The judge did not adopt this course. We do not, however, consider that his directions can have led the jury astray. For the reasons that we have given, we do not consider that it was helpful to include that part of the specimen direction that referred to a person with bad character being less likely to tell the truth, true though this may be. In Meyer the court concluded that such a direction, in circumstances where it was not appropriate, rendered the verdict unsafe. It is, however, seldom helpful to rely upon previous decisions on particular facts as if they are legal precedents. In the present case the direction cannot have affected the jury’s verdict. Apart from anything else, the judge gave a similar direction in relation to the implications of Miss Lee’s history of drug abuse.

The reality in this case was that the appellant’s previous convictions for violence to women of a similar nature to that spoken to by Miss Lee gave cogent support to her evidence. The terms of the summing up can have had no impact on the safety of the verdict.

These are the reasons why we dismissed the appeal.