C v R.

This case has had a chequered history; so least said, soonest mended.

The defendant (as we shall call the appellant to whom we have granted leave to appeal) is presently charged with offences of the utmost gravity, two separate cases of double murder where the victims were said to have been killed with a shotgun which took place in 1985 and 1989 respectively, as well as a rape/robbery which took place in 1996. He denies guilt.

The Crown wishes to adduce evidence that the defendant was convicted on an earlier occasion of a very large number of offences of burglary and one offence of robbery which took place in the locality where and in similar circumstances to those in which the present offences took place. These earlier convictions are described as the Huntsman convictions. They are said to be of direct relevance not simply as to propensity, but to the Crown’s case that the defendant was responsible for the commission of the present offences. By direct we mean that some of the evidence used to prove the defendant’s guilt of the Huntsman offences is linked with evidence intended to establish his guilt of the present offences. Notwithstanding his convictions for the Huntsman offences the defendant contends that he was not guilty of them.

On 1st and 2nd November 2010 Griffiths Williams J conducted a preparatory hearing designed to iron out how the issues relating to the earlier convictions should be handled at trial. In the course of that hearing, the defence agreed in writing a number of facts relating to the earlier convictions. The document was identified as Annex A. Annex A specifically agrees the offences of which the defendant was convicted, the dates and their venues. What were described as “other notable features of those offences” material to the present trial were identified. They included what was described as offence 30, the fact that a sawn-off shotgun was used against the victim of that offence, that immediately following the offence a shotgun (identified as item PH/2) was discovered, along with other discarded items, thrust into a hedgerow along the escape path along which the perpetrator fled. These items included, in addition to the shotgun PH/2, two live Italian shotgun cartridges, a home made jemmy type tool, a length of cord of similar type to that attached to the gun, a Head rucksack identified as having been stolen from an offence committed in April 1996 (described as offence 26), a balaclava item (MTJ/14) linked to the defendant by hairs found inside it, the victim’s handbag and other stolen items, a green/purple fleece jacket, and Puma size 9 trainers.

The Crown accepted that the summary represented the lowest common denominator of facts which, absent the agreement, the judge would have permitted the prosecution to place before the jury. So the Crown accepted the content of Annex A and indicated in consequence that it did not intend to call evidence on these matters. It was further indicated that the Crown was not minded to tender evidence for the sole purpose of enabling the earlier convictions to be undermined by the defence.

After considering the arguments, and at this stage in the proceedings we can see no advantage in examining very many pages of transcript of oral submissions, Griffiths Williams J understood the submission made to him on behalf of the defendant to mean that the only evidence that the defendant wished to adduce before the jury on the question whether he was guilty or not of the earlier offences was his own oral testimony. The judge also understood it to be suggested that the issue of the defendant’s previous convictions could in effect be re-litigated simply because the defendant asserted an entitlement to do so. And understandably, he was profoundly concerned about the dangers to the orderly running of the trial of satellite litigation, which might have the effect of requiring the Crown to prove to the jury trying the present cases what the Crown had already proved to the satisfaction of the jury considering the Huntsman offences.

Griffiths Williams J expressed his conclusions in this way, at paragraph 41 of his judgment,

“(i)

While there is a right to prove or seek to prove innocence of an earlier conviction, it is an absolute right, albeit it is fettered; the exercise of that right must be subject to he overriding objective of the Criminal Procedure Rules 2010. A second jury is not the appropriate tribunal to determine the correctness of an earlier conviction and so there must be compelling grounds for satellite litigation…A defendant’s interest are protected generally by the appellate process; if a defendant has fresh evidence, then that evidence should be considered by an appellate court and not by a jury.

(ii)

A defendant must satisfy the court that there is a proper factual basis for challenging the correctness of the conviction; the defendant’s continuing claims of innocence alone will be insufficient to require the prosecution to call witnesses from the earlier trial. While a defendant may give evidence to that effect, if a witness is called by the prosecution as to the facts of a previous conviction, that witness may not be cross-examined in an attempt to challenge the correctness of the conviction. Had the defendant sought to maintain its challenge to the “bad character” evidence (on earlier grounds)…without more than the defendant’s continuing denials of guilt, no acceptable grounds for challenging the conviction would have been demonstrated…

(iii)

Mr Evans agreed that the summary of the facts giving rise to the Huntsman convictions together with a DVD presentation of the locations of all those offences (as well as the present offences) can be shown to the jury as evidence of the defendant’s guilt of the Huntsman offences but he submitted that the defence should be allowed, on grounds of fairness, to adduce evidence from the Huntsman trial which proves the defendant’s innocence of one or more of the offences…While – as Mr Evans submitted… - without the opportunity of challenging the conviction on count (30), it may be that the case is indefensible, that is not a material consideration and affords no ground for requiring the prosecution to call witnesses or to make incomplete admissions of fact.

(iv)

Any decision as to the evidence which the defendant may give to prove his innocence of the Huntsman convictions, or any of them, should properly await the defence case. ”

The effect of the submissions made on behalf of the defendant by Mr Mark Evans QC was simple. The ruling created an improper restriction on the right of the defendant to prove that he had not committed the Huntsman offences, an express entitlement under section 74 (3) of the Police and Criminal Evidence Act 1984. This provides:

“In any proceedings where evidence is admissible of the fact that the accused has committed an offence, if the accused is proved to have been convicted of the offence…by or before any court in the United Kingdom…he shall be taken to have committed that offence unless the contrary is proved.”

Section 74(3) is uncomplicated and it means exactly what it says: once it is proved (whether by agreement or otherwise) that the defendant was and remains convicted of a criminal offence and assuming that evidence of that fact is admissible, the prosecution is not required, merely because the defendant denies guilt, to prove that the defendant was guilty of the offence, or to assist him to prove that he was not guilty, or indeed to call witnesses for either purpose. The evidential presumption is that the conviction truthfully reflects the fact that the defendant committed the offence. Equally, however, it is clear that the defendant cannot be prevented from seeking to demonstrate that he did not in fact commit the offence and therefore, that the jury in the current trial should disregard the conviction. If so, it follows that he should be entitled to deploy all the ordinary processes of the court for this purpose, and in particular to adduce evidence that will enable him to prove, whether by cross-examination of prosecution witnesses or calling evidence of his own that he was not guilty and that the conviction was wrong. It also follows that if the defendant does adduce evidence to demonstrate that he is not guilty of the offence, it remains open to the Crown then to call evidence to rebut the denial.

The danger in this situation is satellite litigation, which for obvious reasons is undesirable. That danger acknowledged, the stark principle remains that any defendant is entitled to contest his guilt in accordance with the ordinary processes of the criminal justice system, and therefore to challenge or to seek to undermine the Crown’s case against him or to advance evidence in support of his own case. That principle extends to evidential presumptions relating to his guilt of an earlier offence. To prevent him from doing so, or deny him the opportunity of adducing admissible evidence that he did not commit the earlier offence would be likely to result in an unfair trial of the present offences.

Mr Evans submitted that the effect of Griffith Williams J’s ruling is that, given the context of the overriding objective of the Criminal Procedure Rules 2010, the right granted to the defendant under section 74(3) of the 1984 Act to establish that he had not committed the offence of which he was convicted, represented a fettering of the statutory right and its proper exercise. We agree that the way in which the right to challenge the conviction is exercised must be subject to proper judicial control and case management, but if what Griffiths Williams J was saying was that the overriding objective could nullify the exercise of a right granted by primary legislation, such an approach would be wrong.

Mr Evans accepted that speaking generally, Griffiths Williams J was right when he concluded that the fact that a defendant asserted his innocence was insufficient to require the prosecution to call witnesses from the earlier trial, and in effect, to reprove his guilt. The real issue is how to arrange the mechanics of the trial process so as to ensure that while the prosecution may adduce the admissible evidence which proves the defendant’s guilt, he should continue to be able to address and refute it, even when that evidence takes the form of a previous conviction, and without at the same time turning the present trial into a re-trial of the Huntsman offences.

Returning to the conclusion expressed in paragraph 41 (iv) of Griffiths Williams J’s judgment, we think that it should be reformulated in the light of the submissions made to us so as to read :

“Any decision as to the evidence which the defence may adduce to prove the defendant’s innocence of the (earlier) convictions, or any of them, should properly await the defence case.”

In our judgment it is essential that the defendant should provide a more detailed defence statement in which, quite apart from setting out his case in relation to the offences with which he is presently charged, he should identify all the ingredients of the case which he will advance for the purposes of discharging the evidential burden of proving that he did not commit the earlier Huntsman offences. That may enable the prosecution to prepare draft admissions of fact, and also to collate the necessary evidence. The bare assertion that the defendant did not commit these offences is inadequate.

Informed by the defence statement the Crown will prepare its case. It is a broad rule of practice that the Crown should call all the evidence it intends to adduce to establish the defendant’s guilt before the end of its case. If that principle were to apply in a case like the present, it would in effect mean that the Crown would be obliged to re-present the evidence which led to the jury to convict the defendant of the Huntsman offences. That would nullify the statutory provisions which enable the Crown to rely on the fact that he was convicted. It would be satellite litigation indeed. Although in the ultimate analysis it will be for the trial judge to make whatever decisions are appropriate for the proper conduct of the trial, as it seems to us, it would at the very least be open to him to consider permitting the Crown to postpone its decision whether to call any evidence to confirm the guilt of the earlier offences and the correctness of the convictions until after the close of the defendant’s case.

In the result, to the extent that the decision by Griffiths Williams J precluded the defendant from advancing his positive case that he was not guilty of the earlier offence, we shall allow the appeal, without, as we emphasise, suggesting or implying that as a result of that ruling, the Crown must assist the defendant to establish that he is innocent of which he remains convicted or seeking to tie the judge’s hands as to how he actively manages the trial in accordance with the overriding objective and our decision on this appeal.