Braithwaite v R.

The issue in this appeal is whether the judge erred in principle in declining to admit certain bad character evidence at the suit of the defendant and in respect of Crown witnesses. The defendant was on trial for murder. The issue was self defence, or, in broad terms, whether it was he who was the aggressor or whether the complainant and his associates were.

The incident which led to the trial was street violence at about 0130 in Croydon on the night of Friday/Saturday 15/16 August 2008. The deceased Nilanthan Murddi, aged 17, was in the company of a number of friends gathered together in the street and a small car park just off it. Some were drinking from bottles. It was apparently someone's birthday.

The Crown case was that about half an hour before the fatal part of the incident there had been a quarrel between the deceased's group and a passenger in a minicab which had to stop at the adjacent traffic lights. The Crown said that that passenger was the defendant. The passenger was arguing with the driver. The group joined in. The quarrel was largely verbal, although it involved some physical reaction by the deceased to what was alleged to have been racial abuse from the passenger. The car drove off when the lights changed, but it was the Crown case that the defendant returned on foot about 20-30 minutes later, armed with a knife. There ensued a confrontation between him and the deceased. They closed together and by the end of their brief encounter the deceased had a fatal stab wound in his neck. The defendant left, taking the knife.

The defendant’s account, not volunteered to the police in interview after arrest 3 days later on 19 August, but disclosed some 9 months later in a Defence Statement, was that he had not been in the taxi. He had been walking innocently along the street, passed the group of which the deceased was one and exchanged some polite conversation with them. Then their mood changed and they became aggressive towards him. They were armed with bottles and a hammer, and he was struck on the head. He backed away but they, and particularly the deceased, followed him and confronted him. The deceased had the knife. He wrestled it from him but as he swung his arm to defend himself it went accidentally into the complainant's neck.

There was some evidence available to the Crown other than that of members of the deceased's group. There was limited independent eye witness evidence, some of which tended to support the Crown case, but it did not go to the moment of stabbing. There was evidence from a friend of the defendant that he had told her that he had indeed been in the minicab and had been carrying the knife. But the case also relied significantly on the evidence of the deceased's group. Of the nine called, four had some previous history of violence or disorder. The Crown duly disclosed what was known about them.

Application was made on behalf of the defendant to admit all the material disclosed as bad character evidence pursuant to s 100 of the Criminal Justice Act 2003. The judge admitted much, but declined to admit some. The distinction which he drew was between (a) conduct resulting in convictions, cautions and penalty notices on the one hand and, on the other, (b) material contained in police crime reports indicating that some third party had made an allegation against the witness or that the witness had been investigated in respect of some offence. The question is whether he was wrong to decline to admit the latter category.

The distinction can be illustrated by reference to one of the witnesses, U. He had a conviction in November 2008 for affray, in which he had hit someone on the head with a machete. He had also been convicted in May 2009 of affray and the possession of an offensive weapon committed in July 2008. He had caused a wound by the use of a meat cleaver. Apart from these two convictions there were disclosed CRIS internal police records which revealed reports to the police of two further incidents in which he had been under investigation:

On 18 January 2009 a complaint was received by the police that bricks and/or bottles had been thrown from a passing car at a house and at a parked car. U was found in the neighbourhood and arrested. He was interviewed but declined to answer questions. No witness identified him, but the police had reason to suspect links between him and the car, were further suspicious of the fact that he had given no explanation for his presence in the area, and noted that since he had answered no questions he was ‘not denying offence’. All the possible witnesses subsequently said that they did not wish the matter to be taken any further and declined to make statements. The CCTV was no help. In due course the CPS advised the police that no further action should be taken because there was insufficient evidence.

On 24 February 2009 a complaint was received by the police that a man had answered a knock at his door and had been confronted by at least three men who attacked him, one of them wielding a samurai sword and another a fence post. The police were given by someone three first names for those said to be involved, and concluded from ‘intelligence checks’ that one appeared to be U. U was arrested a fortnight or so later and, when interviewed, declined to answer questions. The enquiry could not be taken any further because the complainant, who had been seen with injuries albeit superficial, declined to co-operate with it.

A similar position obtained in relation to two other Crown witnesses from the deceased’s group. They had convictions or penalty notices for offences of disorder or violence and there were in addition internal police CRIS reports indicating that they had been suspected of involvement in other offences.

The Crown accepted that conduct resulting in convictions, cautions, or penalty notices for offences of disorder or violence was bad character material which could be adduced. For the defendant, Mr Coffey QC sought the ruling of the judge that in addition to those, he should be permitted to adduce part of the contents of the CRIS police documents. His written application indicated that if the judge ruled in his favour, there ought to be agreement between the defence and the Crown of admissions to be put before the jury. In his written application, for example, he summarised the material relating to the incident described at paragraph 7(ii) above in this way:

We accept of course from Mr Coffey that this was, as it were, an opening draft in what he expected to be negotiations with the Crown as to the terms of the admission which he would have sought. As he explained his stance to us, what he contended for was an admission in suitable terms summarising the contents of the CRIS reports, in a form which would demonstrate to the jury that when he put to U in cross examination the allegation that he had committed an offence contrary to section 18 of the Offences against the Person Act 1861, he was not doing so out of thin air but had a basis for making the allegation. He sought similar admissions in relation to each such allegation.

The test for the admissibility of bad character evidence against a non-defendant is contained in section 100 of the Criminal Justice Act 2003 and is as follows:

Four things might be noted.

The test of ‘substantial probative value’ is not the same as the test for gateway (d) of s 101(1) in relation to the common case of bad character evidence affecting the defendant which the Crown seeks to adduce. There the test is whether the evidence is “relevant”. It is however the same as appears in gateway (e) in relation to an application made by one defendant against another.

If the conditions of section 100(1) are met, there is no residual discretion in the judge to refuse to admit the evidence. Contrast the common gateways (d) and (g) where such a residual discretion is found in section 101(3).

Except where all parties agree, evidence of bad character cannot be given without leave. That is expressly provided by s 100(4). It was common ground before us, plainly correctly, that this means that bad character evidence cannot be adduced by any means, including cross examination of the witness, without leave. That is also apparent from the amendment made by the Criminal Justice Act 2003 (Schedule 36, Part 5, paragraph 79) to s 6 of the Criminal Procedure Act 1865 so as to remove the provision formerly there contained that a witness “may be questioned as to whether he has been convicted….” and to substitute a reference to the consequences which ensue if he is lawfully questioned in that way.

What section 100(1) requires, except where there is agreement between the parties, is not discretion but judgment on the part of the judge. In a case such as the present, where “important explanatory evidence” is not in point, he must assess:

the issue to which the evidence goes (s 100(1)(b)(i)),

whether that issue is of substantial importance in the context of the case as a whole (s 100(1)(b)(ii)) and

whether the evidence has substantial probative value in relation to that issue (s 100(1)(b)).

The judge directed himself that bad character evidence in relation to these witnesses and consisting of evidence of disorder or violence was potentially relevant both to their propensity to act aggressively in the street and to their credibility. Those were the issues to which such evidence went. He was clearly correct. On the facts of this case, the former applied even if the witness in question gave rather limited evidence implicating the defendant in the offence, since it was central to the defence that he had been the victim of unprovoked aggression on the part of the group which included these witnesses.

Next, there was no doubt that those issues were of substantial importance to the case.

The question which mattered was whether the material which the defence wanted to put before the jury had “substantial probative value” in relation to those issues. That expression has been referred to in some quarters as importing a test of 'enhanced probative value'. We can see why, although we ourselves prefer not to rephrase the statute, remembering only that the distinction we have mentioned exists between this test and that of simple relevance.

s 100(3) gives some guidance on the assessment of whether evidence has substantial probative value. It commands the judge to have regard to various identified factors. But it is to be noted that whilst the factors there mentioned must be considered, they do not constitute an exhaustive list. Section 100(3) says that the court must have regard to them “and to any others it considers relevant.” The identified factors are such as the nature and number of events, the extent of their similarity to other alleged misconduct if that is said to be the source of its probative value and, if it be suggested that the evidence is such as shows that the non-defendant committed the offence being tried, the extent to which the totality of the evidence tends to show that the same person was responsible for both the bad character event and the offence being tried. Thus, section 100(3) emphasises that the test of substantial probative value is a test of the force of the evidence which it is sought to adduce.

Section 109 does not help on the question which the judge had to face. That section provides that substantial probative value or, where it is the test, relevance, has to be assessed on the assumption that the “evidence” is true, (unless no jury could reasonably accept its truth). But that begs the question what the evidence is. The ‘evidence’ in this case, in the CRIS reports, was no more than evidence that a complaint or allegation had been made. It was not evidence that the witness had done what was alleged. Section 109 has the effect that the judge is not to embark on a voir dire to decide for himself whether the evidence that the conduct has occurred is true or not, the witness is not to be subjected to giving evidence twice (once on a voir dire and once before the jury), and the decision on whether the evidence is true is preserved in the hands of the jury. That had been the recommendation of the Law Commission in its report (Law Com 273, 2001) and in this respect, although not in others, the Act follows the recommendation. But if the material in question is not evidence that the witness did the act alleged, section 109 does not come into operation. And the assessment of substantial probative value has to be applied to evidence that the conduct relied upon has occurred.

In Bovell and Dowds[2005] EWCA Crim 1091, Bovell was charged and convicted of an offence contrary to Section 18 Offences Against the Person Act 1865, wounding with intent. His defence had been self-defence. Following conviction in January 2005, his legal representatives discovered that the complainant had himself been the subject of an investigation in 2001 for an offence of wounding with intent. The alleged victim eventually withdrew the complaint for reasons which were unknown. Bovell argued on appeal that, had he been aware of the allegation, he would have sought, and should have been given, leave to cross examine the complainant upon this incident, since it went directly to the issue of his credibility and, therefore, the safety of the conviction. At paragraph 21, Rose LJ giving the judgment of the court said:

This court there sounded an important note of caution, but it did not have to examine all the different types of evidence which a party might attempt to adduce. It would appear that it had in mind the case where all that the applicant seeks to adduce is the fact that someone else has made a complaint, since that was the position in the appeal before it. We emphasise that whenever a bad character application is made, the court must look at the nature of the evidence. The evidence of a live witness to the effect that a complainant in an assault case has on several previous occasions mounted an unprovoked attack on him, in circumstances very similar to those before the jury, would be a mere allegation if no conviction had ensued, perhaps because there was yet to be a trial. But we leave open the possibility that it might in some circumstances (assuming truth) be assessed as having substantial probative value. That, however, is not this case.

A defendant who asks to adduce a CRIS report to the police containing a complaint made in the past to the police by someone else who was not prepared to support it, is advancing a very different level of probative value. First, it is, at best, hearsay. Its admission would fall to be judged by reference to the conditions for the admission of hearsay and we venture to suggest that given the difficulties of the jury in assessing such evidence it would be rare for it to be judged to be of substantial probative value. Secondly, if the complainant has failed to support the allegation that robs it of a great deal of probative value. If, in addition, there has been a decision by the police or CPS not to pursue the allegation or even, as in one instance in the present case, the formal acceptance of a verdict of ‘Not Guilty’, the probative value is even further reduced. In the present case, in the example of U given above, the CRIS reports did not even contain any accusation by anyone identifying him as responsible for the bad character conduct alleged. The ‘evidence’ in this case was in truth no evidence at all that the witnesses had committed the offences in question. It might be different if hard evidence of the allegation were to become available and if that is what the applicant were to seek to adduce. Accordingly we have no doubt that the judge was right to direct himself that a mere police report indicating that an allegation had been made, which remained unproven, was most unlikely to have substantial probative value.

The correctness of the judge’s decision is clearly demonstrated by the proposal that the jury should be presented with admissions. Of course, if there are agreed facts which can be presented to a jury they should be, and this procedure is especially desirable as a means of putting agreed evidence of bad character before the jury, so that a ‘mini trial within a trial’ is avoided. But in this case the facts of the alleged offences to which the CRIS reports related could not be agreed, because nobody knew whether the witness had committed the alleged offence or not. Indeed in some cases nobody knew whether the offence had been committed at all or not. Nor could it have been appropriate for the jury to be told, by way of admission, that police officers suspected that the witness had committed the offence, or that they had investigated him for it, because neither of those is any evidence at all that he committed it. Anyone will sympathise with the difficulties of police officers investigating complaints which are subsequently not pursued, for a great variety of reasons, but those difficulties do not convert their internal records into evidence that a named person committed an alleged offence.

Mr Coffey wanted to cross examine the witnesses by suggesting that they were guilty not only of the offences of which they had been convicted, or which had resulted in cautions or penalty notices, but also about the matters in the other CRIS reports. He accepts that he would be bound by the answers given, but contends that he ought to have been allowed to put the allegation because the witness might have admitted the offence. We agree that in theory at least that could occur. It is, however, a very remote possibility, as for example the response of U to police interviews shows. Mr Coffey did not want simply to put the allegation to the witnesses. He wanted additionally to be seen to derive what he said from police material, with a view to showing that it was likely to be true. That however would be to make the CRIS reports apparently evidence that the witness committed the offence when they were nothing of the kind. The reality is that what would almost inevitably occur is that a detailed allegation would be put to the witness, invested, if the defence application had succeeded, with some sort of authority on the basis that it derived from a police document, but that when the witness denied it the judge would have to direct the jury to ignore the whole exchange, because the questions were not evidence. There would be a plain danger that the jury might nevertheless be affected in its assessment of the witness by bad character material which it ought never to have had because it was not evidence at all and certainly lacked substantial probative value. Mr Coffey’s case before us amounted to seeking this possible advantage, which was not available precisely because the CRIS reports were not evidence that the suggested offences had been committed.

We should add that any such witness would have to be cautioned by the judge that he need not answer any question if the answer might incriminate him. Mr Coffey went so far as frankly to contend that if a witness thereupon declined to answer, the defendant would be able to say that that tended to demonstrate his guilt. Whether or not there might be circumstances in which such a comment might be legitimate we do not decide, but it cannot invest the answer with substantial probative value, in the absence of any other evidence, for the purposes of section 100.

For these reasons we are quite satisfied that the judge was right in his ruling that the material from the CRIS reports, in which no conviction, caution or penalty notice had ensued, could not be adduced because they did not have substantial probative value. Indeed, for the most part, they had no probative value at all.

A conviction is by statute evidence that the person convicted committed the offence. A caution involves a distinct admission. The position with regard to a penalty notice was not in issue before the judge because the Crown agreed to evidence of such notices being adduced, and accordingly it does not fall for decision by us either. A penalty notice may result from a distinct admission but it does not necessarily do so. The statutory condition for its issue, under section 2(1) of the Criminal Justice and Police Act 2001, is simply that a policeman has reason to believe the person guilty. It does carry the implication that the person concerned has not opted for prosecution and trial rather than acceptance and payment of the penalty. Whether, absent an admission, that carries substantial probative value as to the guilt of the person, at least unless he contends that it was understandable that he should accept the penalty, although denying the allegation, rather than be prosecuted, is not a point on which we heard any argument and it must fall for decision on the facts of each case.

That is sufficient to dispose of this case. We should however record that we also accept the submission of Mr Kinch QC for the Crown that even if the judge had erred as alleged this conviction is nevertheless undoubtedly safe. There was ample evidence in the trial to demonstrate to the jury that several members of the deceased’s group did indeed have a propensity to street violence and disorder. The additional information in the excluded CRIS reports would not have added significantly to it. There was plain evidence of the guilt of the defendant independently of that of the witnesses who came from the deceased’s group. A woman well known to the defendant gave demonstrably reluctant, but compelling, evidence that he had told her that he had been in the minicab and that he had had the knife. He had on his own account disposed of the knife immediately after the incident in a manner which, since he told no one for months what he had done, meant that it could never be recovered and examined, and his account of where, when and how he did so was extremely unconvincing.

For all those reasons, the appeal against conviction must be dismissed.

The defendant also appeals against sentence. Life imprisonment was mandatory but he seeks to challenge the minimum term of 19 years. It is common ground that the statutory starting point, for an offence committed before the recent amendment of Schedule 21 to make new provision for knife offences, was 15 years. The judge rightly so directed himself. He arrived at 19 years after accepting that the defendant would have intended grievous bodily harm rather than death, but because the defendant had carried a knife to the scene. He was right to treat that as serious aggravation of the offence. He might also have added that the offence was clearly a pre-meditated revenge attack. This defendant was not, we agree, an habitual criminal and his general lifestyle was responsible, with employment and a family. But he had a previous conviction for carrying a knife. Well before the amendment of Schedule 21, this court has emphasised on more than one occasion the special gravity of the carrying and use in public of knives. There was nothing wrong with the judge’s decision as to the minimum term. The appeal must be dismissed.