Freeman, R v

These applications raise in different ways the question of the appropriate direction to the jury where bad character evidence within the meaning given to that phrase in s.98 of the Criminal justice Act 2003 is put before the jury by the Crown. In particular they raise the question of how a judge should deal with the cross-admissibility of evidence relating to two or more counts in the same indictment. This court has considered the problem in the past, in particular in Chopra [2006] EWCA Crim 2133, Wallace [2007] EWCA Crim 1760, S [2008] EWCA Crim 544 and DM [2008] EWCA Crim 1544. It may be helpful to draw the threads of these decisions together. We have accordingly given leave to appeal to both appellants; at the end of the hearing we announced our decision, namely that both appeals would be dismissed. This joint judgment sets out our reasons.

On the 10^th October 2007 at the Crown Court at Guildford, the appellant was convicted of three counts of indecent assault and two counts of sexual assault of a child. He was later sentenced to a total of 42 months imprisonment. At the hearing we heard and allowed his appeal against that sentence, which we reduced to one of 30 months imprisonment.

The indictment related to complaints made by two young girls, L, who was 6 years old at the time of the events about which she complained, and B who was 9 years old at the relevant time. As far as L was concerned her complaint related to events on the 19^th April 2002 when she was staying in the appellant’s flat with her mother and brother who were going to a family wedding the following day. At some point in the evening, L’s mother went out with the appellant’s partner. L said that the appellant had then entered the room where she was sleeping, and put his hands under the duvet and touched her body around the chest and neck, kissed her on and around her mouth, rubbed her side, stomach and thighs and rubbed her vaginal area. He had left the room but then returned on two separate occasions and repeated the assaults. L’s mother said that when she returned home, she saw the appellant emerging from L’s bedroom. L made no complaint at the time. The matter however surfaced in 2006 when L’s mother questioned her about whether anything had happened. L said that the appellant had gone into her room. L’s mother took her to the police station in Cork, Eire where they were then living. A statement was taken from L and her mother without the safeguards which would have been in place in this jurisdiction. L later told her mother that something else had happened and L’s mother took her in September 2006 to the police station in Farnham in Surrey where she made a second statement in which she made the allegations which form the subject matter of the counts.

The other two counts related to the child B. They arose out of an event on the 23^rd April 2006 when B had visited the appellant’s flat with her parents. At one point B had been alone in the nursery with the appellant when the appellant offered B a foot massage. He started to rub her legs and then moved his hands up to touch her vaginal area over her knickers. He then did the same with the other leg, once again touching her vaginal area over her knickers. B told her parents what she said happened later that day. B was interviewed on the 17^th May 2006 and gave the account we have just set out.

The appellant was interviewed in relation to the allegations made by B on the 8th June 2006. He said that he had massaged B’s foot for no more than twenty five seconds as she had pins and needles, but had not touched her vaginal area. He was interviewed about the allegations made by L on the 16^th October 2006 when he denied that he had even gone into the room where L was sleeping. He stated that L’s mother may have influenced her.

Counsel made an application to sever the counts relating to the two incidents on the basis that the joint trial would prejudice the appellant’s ability in particular to explore in detail reasons for the lateness of the complaint by L. The judge rejected the submission. He held that the fact that L had made her complaint late was not an unusual occurrence where young children were concerned. He accepted that if anything emerged to suggest that L’s evidence was contaminated, then he would have to consider exercising his powers under s. 107 of the Criminal Justice Act 2003 either to direct the appellant’s acquittal, or order a retrial.

At the end of the prosecution case, the appellant’s counsel submitted that there was no case to answer in respect of the allegation made by L on the basis that the prosecution evidence was unreliable and had been obtained in a highly unsatisfactory manner. The judge rejected the submissions. The appellant then gave evidence generally in accordance with the account that he had given in interview.

The judge in his summing-up reminded the jury of the appellant’s submissions as to the potential unreliability of L’s evidence and in particular on the basis that it might have been influenced by the mother. He then dealt with the question of how the jury should treat the evidence of each of the complainants when considering the evidence of the others. He said:

“Moving on to the next topic. As you know, in this trial you are considering two alleged incidents, separated in time by a period of four years, and the topic I am considering now is the extent to which the evidence of one incident is relevant to your judgment in respect of the other. If you decide, and you are sure about it, that Mr Freeman is guilty in respect of one of the incidents and the evidence of one of the two witnesses, the complainant witnesses, then when you are considering the evidence of the other it would be evidence that he has a bad character in the sense that he had committed offences other than the ones that you are considering and it would be important for you to understand how you could use that. If you decide, and you are sure about it, that Mr Freeman did commit offences against one of the two young girls and he, therefore, has a bad character in that sense, you must not convict him in respect of the offence alleged by the other girl solely, mainly, because of the conclusion you have previously reached. But what the prosecution do say is that a conviction, if you reach it, in respect of one of the girls would demonstrate a tendency to commit sexual offences against young girls. The prosecution say that there are similarities between the circumstances and the nature of the allegations which, if you find one proved would demonstrate a tendency to commit offences of a similar kind.

Well, you will bear in mind that while there is no minimum number of previous incidents necessary to establish such a tendency, the fewer the incidents the less firm is the basis for deciding a person has such a tendency and, in any event, if you decide that Mr Freeman did commit offences against one of the two girls, that would be no more than background when you are considering the evidence in relation to the other. What really matters in respect of each of the two groups of counts in the indictment is the evidence relating to that group, but you may take the other into account when you are considering one in the way I have just described.”

The appellant appeals on the ground that the judge was wrong to refuse to sever the indictment, wrong to refuse the submission of no case to answer in relation to L, the directions given to the jury regarding admissibility were insufficient and that the judge erred in referring to bad character at all during the course of his summing-up.

On the 24^th April 2008, before Mr Recorder Boyce QC, the applicant was convicted of two counts of robbery and was sentenced to 1014 days imprisonment on each count to run concurrently. The first count arose out of an incident shortly before midnight on the 23^rd February 2007. Linette Tadeo was on her way home on her own. She got off the bus in New North Road, London N1 just before the junction with Wimbourne Street, she noticed two black men standing on the corner on the other side of the road. As she turned in to Wimbourne Street she realised she was being followed by one of those men. She got her keys out of her handbag ready to get in to her house as soon as possible. But she was confronted by the man who was following her. He was wearing a cream hooded jacket with a fur trim, the hood was up. He was wearing dark track suit bottoms and white trainers. As he came in front of her, he tugged at her handbag, eventually managing to extract it from her and then ran off. This all occurred under a street lamp. She described the man as having a shaven head and acne marks, five foot five to five foot six tall and of medium build. He ran away in the direction of New North Road. On the 21^st April 2007 she picked out the appellant on a video identification parade.

The second count arose out of an incident, again on New North Road, which occurred on the 11^th March 2007 just before 6pm. Mena Keys was walking along the road towards Old Street tube station when she sensed that someone was behind her, she stopped and turned round and confronted a man she described as a lightly toned black man in his mid to late twenties, between five foot six and five foot eight tall wearing a dark baseball cap and darkly coloured clothing. He came straight up to her and grabbed her bag which was over her right shoulder. She tried to hold on to it, but eventually had to let go. The man then ran away. She attended a video identification procedure on the 23^rd April 2007 and identified the appellant as the man who had robbed her.

The Crown applied to adduce bad character evidence in two regards, firstly in relation to three convictions for street robbery, two of which had occurred in February 2005 and one of which had taken place only three weeks after one of the instant offences, and immediately across the road from that offence. The Crown submitted that the methodology was virtually identical and formed part of a series of similar offences. Secondly, they applied to be entitled to use the evidence from each of the offences in question in relation to the other. The defence argued that the Crown should not be entitled to adduce the evidence on the grounds that to do so would simply be using bad character to bolster an otherwise weak case which this court in Hanson [2005] 2CR App R 21 had said should not be permitted.

The judge said that in his view it was not a weak case. The evidence, in his view, was capable of establishing propensity, and it would not be unfair either under s.101 (3) of the Criminal Justice Act 2003 or s.78 of The Police and Criminal Evidence Act 1984 to admit the evidence. He found both complainants to be impressive witnesses and certain in their identification of the applicant. He concluded that as there was no evidence to suggest there was the possibility of collusion or contamination between the witnesses, following Chopra and Wallace the evidence in relation to each robbery was admissible in respect of the other. He later rejected a submission of no case to answer.

In relation to bad character, having set out the facts of the three convictions, he said:

“What then is the position in relation to that and why have you heard about his previous convictions? The position is that you now know that the defendant has previous convictions which are capable of showing that he has a propensity to commit the sort of offence that he is alleged to have committed in the case before you.

The propensity displayed is to approach lone females in the street and to grab their handbags as they wear them on their shoulders and tug it from them and flee. But you should not conclude that the defendant is guilty of the offences before you merely because he has those convictions.

Next, although his previous convictions are capable of showing such a propensity, this is a simple matter for you as to whether or not it does show such a propensity. Next if you conclude that those convictions do show such a propensity, that alone does not prove his guilt in this case.”

Then turning to the two counts in the indictment he said:

“So what is the position when you are considering two offences where two people say that within three weeks in the same location, effectively, this defendant committed a similar offence? The position is that in relation to the two counts in the indictment you can, if you think it appropriate, treat the evidence on one as being admissible to support the evidence in relation to the other providing that the possibility of collusion or contamination between Miss Tadao and Miss Keys can be excluded.

…

If you think it appropriate, you may use the evidence in one in support of the evidence of the other, bearing in mind all of the warnings I gave you in relation to propensity evidence regarding his previous convictions just a moment ago. Not withstanding that you may use the evidence on count one in relation to count two, and vice versa, it is still the case, of course, that you must return separate verdicts in this case and you must consider ultimately the case against and for the defendant on each count separately…”

There are three grounds of appeal. First, applying Turnbull [1976] Crim App R 132, it was wrong to reject the submission of no case to answer. Second, the judge was wrong to permit the Crown to put the convictions before the jury. Third, the judge was wrong to direct the jury that it was entitled to use the evidence of each of the robberies when considering the other.

As this court explained in Chopra, evidence in relation to one count in an indictment is capable of being admitted as bad character evidence in relation to any other count in the indictment if it meets any of the criteria or gateways in s.101 (1) of the 2003 Act. The provisions of this part of the 2003 Act replace the previous common law rules. But some confusion has arisen in a number of cases where the court has been considering s.101 (1) (d), where it is said that the bad character evidence is relevant to an important “matter in issue” between the defendant and the prosecution. S.103 (1) provides, so far as relevant, that the matters in issue include the question of whether the defendant has a propensity to commit offences of the kind of which he is charged, except where the court considers that such a propensity does not make it more likely that he is guilty of the offence. The confusion that has arisen is exemplified by the case of Chopra. In that case the defendant was a dentist who was charged with indecent assault of three teen-age patients, on three separate occasions. On each occasion he was said to have touched or squeezed their breasts. The court held, first, that the evidence in relation to each incident amounted to bad character evidence for the purposes of s.98 in relation to the other counts. Secondly, in determining its admissibility, the common law rules relating to propensity and similar fact evidence no longer applied. The sole question was whether, in such a case, the bad character evidence met the criteria in s.101 (1) (d) and s.103 of the 2003 Act. The judgment dealt mainly with the question of whether the evidence was capable of establishing a propensity to commit such an offence. However, it is quite apparent from the way the court treated the evidence that it concluded that each of the allegations was capable of making it more likely that the other allegations were true because of the similar nature of the evidence in each case. In other words, whether or not the incidents were capable of establishing a propensity, each was admissible in itself as evidence to support truth of the other allegations.

In Wallace the court was dealing with a different scenario. The evidence that the prosecution adduced in relation to a series of robberies was such as to show, in the Crown’s submission, that they must have been committed by the same person or persons. This court held that, even if it had not been the original intention of those drafting the statute, this meant that the evidence in relation to each of the robberies amounted to bad character evidence for the purpose of s.98 of the 2003 Act with the consequence that it could only be admitted if it met the criteria or gateways in s.101. But the court made the point that quite clearly where there was evidence of such similarities, that inevitably meant that the evidence was admissible under s.101 (i) (d).

The evidence may provide, for example, strong circumstantial evidence that the offences were committed by the same person, and that the defendant is that person. This point was made clearly by Moses LJ in DM. It follows that when it is submitted that evidence in relation to one count is admissible in relation to another, it may not always be helpful to concentrate on the concept of propensity when the nature of the evidence is such that, in itself, it is capable of being probative in relation to another count, in the sense that it makes it more likely either that the offence was committed (Chopra) or that this defendant committed the offence (Wallace).

In some of the judgments since Hanson, the impression may have been given that the jury, in its decision making process in cross-admissibility cases should first determine whether it is satisfied on the evidence in relation to one of the counts of the defendant’s guilt before it can move on to using the evidence in relation to that count in dealing with any other count in the indictment. A good example is the judgment of this court in S. We consider that this is too restrictive an approach. Whilst the jury must be reminded that it has to reach a verdict on each count separately, it is entitled, in determining guilt in respect of any count, to have regard to the evidence in regard to any other count, or any other bad character evidence if that evidence is admissible and relevant in the way we have described. It may be that in some cases the jury will find it easier to decide the guilt of a defendant on the evidence relating to that count alone. That does not mean that it cannot, in other cases, use the evidence in relation to the other count or counts to help it decide on the defendant’s guilt in respect of the count that it is considering. To do otherwise would fail to give proper effect to the decision on admissibility.