GAI v R

The retrial of an indictment charging the appellant with five counts of rape of a child under 13 years contrary to section 5 (1) Sexual Offences Act 2003 was held between 6 June and 14 June 2011 before HH Judge Pardoe QC at Snaresbrook Crown Court. The appellant was convicted upon all five counts and sentenced to 15 years imprisonment. On 14 September 2012 the court heard the appellant’s appeal against conviction, leave having been given on an earlier occasion by the full court. At the conclusion of argument we allowed the appeal and quashed the convictions with reasons to be given later in writing. The court ordered a retrial and gave directions for the preferment of a new indictment.

The issues which arise in the appeal are whether the trial judge should have provided the jury with a direction as to the good character of the appellant and, if so, the impact of that failure upon the safety of the verdicts. These are our reasons for resolving both issues in favour of the appellant.

The alleged victim is a child. She is entitled to her anonymity under the provisions of the Sexual Offences (Amendment) Act 1992. Any report of this judgment should refer to the appellant by his initial “I”. We shall use initials where necessary so as to protect the complainant from identification. The complainant being still a child we consider it is in the interests both of the child and the public that we should also make an order under section 39 Children and Young Persons Act 1933 and we do so. No report of the proceedings shall reveal the identity of the complainant or such details of her address, school or other circumstances referred to in section 39 as may be capable of identifying her.

The complainant, whom we shall call A, was born on 27 May 1997. In May 2008 she was living with her mother in Homerton. She was in her last year at junior school. The complainant’s mother was a close friend of the appellant’s partner, AM. The appellant lived with AM and their infant son, E, in Clapton. In February 2009 the complainant moved with her mother to Leytonstone. There was a standing arrangement between the two families that the appellant would collect the complainant from school and deliver her to her home. Later, the complainant would travel to the appellant’s home and remain there until her mother was available. He would then deliver the complainant.

A gave evidence in support of counts 1 and 5 that on two specific occasions, the first (between 27 May and 31 July 2008) and last (between 1 January and 28 February 2010), the appellant raped her in his home. She gave circumstantial details of those alleged offences. Counts 2, 3 and 4 were specimen counts of rape all alleging similar acts between 1 February 2009 and 30 April 2009. These matters came to light on 29 March 2010 when A’s mother and grandmother challenged her about some text message she had sent to a boy. A revealed to her grandmother that the appellant had vaginal intercourse with her on a number of occasions over a period of almost two years.

There was no independent evidence to support the complainant’s account of rape by the appellant although medical evidence confirmed that “the genital findings are consistent with vaginal penetration by something the width of an adult penis. It is possible that scarred areas on the inner aspects of the labia may have resulted from a herpes infection which may have been transmitted sexually”.

The appellant accepted that there had been opportunities for the offences to have taken place but he denied any sexual impropriety. He admitted making gifts to the complainant which included £40 in cash, clothing and shoes but maintained that this was common knowledge within the families. He admitted in particular that in February 2010 he had taken the complainant to the Westfield Centre and spent £100 on clothing for her, including underwear. He acknowledged that during the period of the indictment he and his partner were “going through a bad patch”. They had an off/on relationship. The appellant denied that he had ever contracted the herpes virus and his partner had made no such complaint.

The first trial had taken place in January 2011 resulting in the jury’s failure to reach verdicts. In his summing up the trial judge, HH Judge Bing, gave the jury the following direction as to good character;

At the first trial prosecuting counsel, Mr B Reece, conceded at the outset that a good character direction was appropriate in the appellant’s case. The issue was uncontroversial.

In the second trial the prosecution was represented by Miss Sharma. Mr Cole, who was again counsel for the appellant, raised the issue of character with Miss Sharma. They were agreed that provided the appellant disclosed in his evidence the presence of the previous conviction and caution she would not resist an application for a good character direction. The two matters to which HH Judge Bing referred in his summing up comprised first, on 26 January 1983, a conviction for burglary and theft of a non-dwelling which resulted in imprisonment for 3 months suspended for 2 years and, on 5 August 2008, a caution issued by the Metropolitan Police to the appellant in respect of an offence of common assault upon his partner AM. We are informed that the apparent reference by Judge Bing to a caution in 2000 was a slip of the tongue by the judge or a mishearing or mistaken transcription by the transcript writer.

In the second trial Mr Cole did not, before the appellant gave evidence, take the precaution of discussing with the trial judge whether he proposed to give a modified good character direction. He assumed that, since the prosecution were in agreement and a good character direction had been given in the first trial, the trial judge would concur. This was an assumption which was mistaken. When the appellant gave evidence in the second trial Mr Cole adduced from him his conviction and caution. He concedes that he may not have been explicit that the caution was for an offence of common assault but there is no doubt the jury were informed that, as a result of an argument between the appellant and AM, neighbours called the police. Their arrival resulted in a caution delivered to the appellant in consequence of the domestic incident. Miss Sharma confirmed to us that at no time did she intend to rely upon the circumstances of the common assault which gave rise to the caution; she did not cross-examine the appellant as to its circumstances and did not seek to adduce evidence of those circumstances.

On 9 June 2011, before speeches, Mr Cole made his application to HH Judge Pardoe QC that he should provide the appellant with a modified good character direction, both as to propensity and as to credibility. Judge Pardoe was immediately troubled by the fact that the appellant had been cautioned for an offence involving domestic violence upon his partner. He observed that the incident had taken place a few weeks after the commencement of the indictment period specified in count 1. The incident of violence upon his partner and the state of his relationship were, the judge considered, relevant to the question whether the appellant was more likely to have committed an act of rape upon the child in his care. In the judge’s view, the relevance of the underlying facts giving rise to the caution was such that had he received an application for the admission of the evidence he would have admitted it under section 98(a) Criminal Justice Act 2003, not as bad character evidence but as evidence of facts having to do with the offence of rape. Mr Cole pointed out that the appellant had already said in evidence that he was going through a bad patch in his relationship with his partner. He submitted that neither the conviction for burglary nor the caution for common assault on his partner could or should preclude the judge from giving a modified good character direction.

The judge informed Mr Cole that he must propose a formulation which “does honest justice to what they have heard”. The judge did not explain what he meant save to say, “It doesn’t seem to me to be the sort of thing I can deal with under a good character direction because it is material evidence”. Mr Cole proposed that the jury could be told that the incident giving rise to the caution was a matter of relevance for them to consider but that would not preclude a good character direction. The judge wished to know the full facts underlying the caution. It emerged that during an argument over their child there had been a physical struggle between the appellant and his partner. The appellant admitted in interview that they had been struggling over a laundry basket when he had pushed AM to the floor. He admitted that in the course of pushing he may have made contact with her throat and squeezed it. It was on that basis that the appellant accepted a caution and was given a harassment warning. The judge responded that if any good character direction was to be given the full facts of the caution should be known to the jury. Mr Cole objected to such a course since the prosecution had elected not to rely upon the facts underlying the caution.

Miss Sharma was somewhat embarrassed by this turn of events. She had anticipated a good character direction and referred the judge to the decision of the House of Lords in Aziz [1996] 1 AC 41. The judge remarked that the Aziz guidance only applied to past incidents of bad behaviour, not to acts contemporaneous with the indictment. We respectfully disagree with the judge’s assessment of the application of Aziz for reasons which appear below. Miss Sharma submitted that the judge’s responsibility was to ensure fairness. Any direction which was given should be limited, she submitted, to the credibility limb.

The judge asked Mr Cole, on the hypothesis that some good character direction would be given, what the jury should be told about the caution. He replied, “A caution for common assault with the date.”

The judge gave his ruling on the following day, 10 June 2011. We shall refer to paragraphs 6 – 10, at pages 3 and 4 of the transcript:

As to the materiality as evidence of facts of the common assault, the facts show that very close to the time at which the offence of rape in count 1 is alleged to have happened, the defendant was on extremely bad terms with the woman who was his partner and the mother of his son, [E]. That is material, not in the sense that it shows a propensity to rape the complainant, but because it is material evidence of how the defendant was living at the time and evidence of material difficulty in his life between him and his partner at the time of the alleged offence.

As to the effect of the caution on any good character direction I deal first with the direction on credibility. The facts of the evidence for which the caution was given are bound to affect the jurors’ assessment of the defendant’s credibility in relation to the offences charged, particularly that in count 1. For them to be told on the one hand that he assaulted on 5 August 2008 his partner, with whom he was living at the time of the alleged offence, and for the jury to be told on the other hand that they must not allow that to affect their assessment of his credibility and whether they believe his evidence, would make no sense at all.

As to the part of the good character direction on propensity, the offences charged of rape of a child and the offence cautioned as an assault on his partner were very close in time and are both offences of violence on a woman or a girl. The mere fact that the common assault is not a sexual offence would not prevent a good character propensity direction from again making no sense.

Accordingly, I decline to give a good character direction in favour of the defendant in this case.”

There are, it seems to us, four issues which we need to address:

Should the judge, in the exercise of his discretion, have treated the appellant as a man of good character?

If so, should he have given the jury a modified good character direction?

If so, in what terms should that direction have been given? and

Did the absence of a good character direction affect the safety of the verdicts?

We commence with the question whether the appellant should have been treated as he was in his first trial, as a man of effective good character. It is clear that but for the caution the judge would have treated the appellant as a man of good character. What then was the significance of the caution for common assault and should it have influenced the exercise of discretion?

In Durbin [1995] 2 Cr App R 84, the appellant was convicted of the importation of 875 kilos of cannabis. He had spent convictions but more significantly he admitted in interview being engaged in smuggling other contraband goods. Furthermore, he admitted telling lies to the prosecution witnesses about his relationship with a co-accused. The trial judge advised the jury to treat him as a man of good character but he declined to give the jury a good character direction. The direction was withheld out of consideration of a co-accused with relevant convictions. The appeal was allowed. At page 92 Evans LJ, giving the judgment of the court, said:

Where the defendant is of previous good character, then he is entitled to the good character direction (both limbs if his credibility is an issue, the second limb only if it is not), notwithstanding that he may have admitted telling lies in interview (R v Kabariti[1991] 92 Cr App R 362) and may have admitted other offences or disreputable conduct in relation to the subject matter of the charge, as we hold here (contrast Zoppola-Barrazza [1994] Crim LR 83, and R v Buzalek and Schiffer [1991] Crim LR 116). In such cases, however, the terms of the direction should be modified to take account of the circumstances of the case, including all facts known to the jury, either as regard credibility or propensity, or both.

Where the defendant is not of absolutely good character the trial judge has a discretion as to whether or not to give a “good character” direction, and if so in what terms, but he cannot properly decide not to do so, and in unqualified terms, if the blemishes can only be regarded as irrelevant, or of no significance, in relation to the offence charged. (H [1994] Crim LR 205, and contrast Zoppola-Barrazza).

By the same token, there will be cases where the defendant is not of absolutely good character but where the only proper course is to given a qualified direction in suitably modified terms, assuming of course that the fact of the previous conviction or other character blemishes is known to the jury. This is likely to mean that careful consideration will have to be given to the distinction between the two limbs of credibility and propensity.

Character, bad or good, is not simply a matter of the presence of absence of previous convictions, nor is it the same as reputation although the one may be evidence of the other.

In all cases where the qualified direction is given, we consider it essential that it should be in realistic terms, taking account of all the facts as they are known to the jury. The jury should not be directed to approach the case on a basis which, to their knowledge, is artificial or untrue.”

In H the court, over which Lord Taylor CJ presided, held that the judge should have treated the appellant as a man of good character notwithstanding his previous conviction for possession of an offensive weapon. The appellant was convicted of indecent assault of his step-daughter. Although the judge told the jury to ignore the previous conviction he had not given a good character direction. The appeal was allowed.

In Zoppola-Barrazza the appellant was convicted of importing cocaine. He had no previous convictions. However, he gave evidence that he had been smuggling gold and jewels into the UK so as to avoid duty and VAT. The Recorder directed the jury to have regard to the good character of the appellant to the extent that it was relevant to his credibility. She declined to give the propensity limb of the good character direction. Her decision was upheld by the Court of Appeal. The admitted misconduct was so closely related to the criminality now alleged against him that it would have been an affront to common sense to hold that the appellant was entitled to the propensity limb of the direction.

The exercise of discretion has caused some difficulty in cases where there has been a partial admission of the facts of the offence charged. For example, in the leading authority of Vye [1993] 1 WLR 471 at page 477H, Lord Taylor CJ suggested that in murder/manslaughter cases the judge might properly stress that the jury would derive limited help from the absence of any propensity for violence. On the other hand, in Buzalek & Schiffer the court held that a partial admission of dishonesty in relation to the facts charged disentitled the defendant to even the credibility limb of the direction. In Teasdale [1994] 99 Cr App R 80, however, a plea of guilty to a charge of inflicting grievous bodily harm (count 2) during the course of a fight in respect of which the appellant had been charged with causing grievous bodily harm with intent (count 2) was held not to disentitle the appellant to either limb of the good character direction, albeit in a modified form. In Challenger [1994] Crim LR 202 the appellant pleaded guilty to simple possession of cannabis upon a three count indictment charging him also with possession of cannabis with intent to supply and possession of an offensive weapon. The judge refused to give a good character direction and the court held that he was right to do so.

The principles to be applied were again examined by this court in Gray [2004] EWCA Crim 1074, [2004] 2 Cr App R 30. Having reviewed the authorities, Rix LJ, giving the judgment of the court, said at paragraph 57:

The primary rule is that a person of previous good character must be given a full direction covering both credibility and propensity. Where there are no further acts to complicate the position, such a direction is mandatory and should be unqualified (Vye, Aziz).

If a defendant has a previous conviction which, either because of its age or nature, may entitle him to be treated as of effective good character, the trial judge has a discretion so to treat him, and if he does so the defendant is entitled to a Vye direction (passim); but

Where the previous conviction can only be regarded as irrelevant or of no significance in relation to the offence charged, that discretion ought to be exercised in favour of treating the defendant as of good character(H, Durbin and, to the extent that it cited H with apparent approval, Aziz). In such a case the defendant is entitled to again entitled to a Vye direction. It would seem to be consistent with principle (4) below that, where there is room for uncertainty as to how a defendant of effective good character should be treated, a judge would be entitled to give an appropriately modified Vye direction.

Where a defendant of previous good character, whether absolute or we would suggest, effective, has been shown at trial, whether by admission or otherwise, to be guilty or criminal conduct, the prima facie rule of practice is to deal with this by qualifying a Vye direction rather than by withholding it (Vye, Derbin, Aziz); but

In such a case, there remains a narrowly circumscribed residual discretion to withhold a good character direction in whole, or presumably in part, where it would make no sense or would be meaningless or absurd or an insult to commonsense, to do otherwise (Zoppola-Barrazza and Dictor Derbin and Aziz) … ”

We turn, therefore, to the question upon what principles the discretion should be exercised in a case in which there is evidence of previous bad character (whether previous convictions or other reprehensible behaviour) which might nevertheless attract a modified Vye direction. The purpose of a good character direction was considered by Lord Steyn in Aziz & Others [1996] 1 AC 41 at page 50H:

In the case of a defendant with no previous convictions and no cautions (see Martin [2000] 2 Cr App R 42), and who has made no admissions in interview or in evidence of other reprehensible conduct, there will be no difficulty. The exercise of discretion becomes necessary either when the accused has old and/or insignificant convictions, or when the defendant has admitted other reprehensible behaviour which, on a fair view, may not be relevant either to the issue of credibility or to the issue of propensity to commit the offence charged or both (or, as Lord Steyn put it, where the evidence is not probative on the issue of credibility or propensity).

It seems to us that the judge will be considering not only the strict question whether the jury should treat the defendant as a person of good character but also the question whether the facts of the case, even if the defendant is not strictly of good character, require a modified direction either as to credibility or as to propensity, or both. If the convictions or reprehensible behaviour proved or admitted tend to undermine the propensity and credibility limbs of a good character direction it may be that the rationale for a good character direction has been removed altogether. It would in those circumstances make no sense to give a good character direction.

This analysis brings us to the recent decision of this court in PD [2012] EWCA Crim 19. The appellant was charged in counts 1–4 with offences of violence against his wife. In counts 5-11 he was charged with anal rape of his wife. In the course of evidence the appellant, who otherwise had no previous convictions, admitted using violence towards his wife during the course of his marriage. The judge agreed to give to the jury in respect to the allegations of anal rape the propensity limb of the good character direction. There were good reasons for not giving the credibility limb of the direction since the appellant had also admitted describing himself in interview as “non-violent” and he admitted acts of dishonesty relating to his financial affairs. In the result, however, the judge neglected to give any direction to the jury in respect of his “good” character.

Moses LJ, giving the judgment of the court, recognised at paragraph 12 of his judgment, that:

We note that it is commonplace for trial judges to qualify their directions to the jury by pointing out that, first, it is for them to assess the weight to be attached to good character and, second, when making that assessment they are entitled to take into account that which they have learned about the defendant (and which they accept) from the evidence in the case.

We turn therefore to examine the question whether the judge was right to regard the facts underlying the appellant’s caution in August 2008 as so closely connected to the charges of child rape that they “disentitled” the appellant to a good character direction. Contrary to the judge’s ruling, it is our opinion that the appellant’s caution for common assault had little or nothing to say about the appellant’s credit as a witness. While his admitted behaviour was reprehensible he admitted it. Weight was a matter for the jury but it seems to us the jury could properly have concluded that it had no effect upon his standing as a witness (c.f. Sweet-Escott [1971] 55 Cr App R 316). Secondly, it seems to us that the behaviour of which he was then guilty was incapable of suggesting any propensity to commit sexual offences such as those charged in the indictment. Indeed the judge eventually reached the same conclusion. We do not consider it was “relevant” to the offences charged in the sense described by Rix LJ in Gray. Only by making a leap of speculation could it be argued that a man who was on poor terms with his wife was more likely to commit sexual offences against a child. Although the appellant was not strictly a man of good character he should have been treated by the judge as a man of effective good character.

The judge’s refusal to give a modified good character direction was founded solely in the assertion that the assault upon AM demonstrated that at a material time he was on bad terms with his partner. We agree with the judge that the appellant’s home circumstances comprised relevant background material, just as the appellant volunteered that he and his partner were going through a bad patch. We also accept that when the jury is being directed to consider the issue of character, whether as to propensity or credibility, a primary consideration is that they should not be misled (Challenger and Nye [1982] 75 Cr App R 247). We sympathise with the judge’s view that the jury could not be expected to judge the weight to be attached to the appellant’s good character without knowing the facts which led to his caution. However, it was not the view of the prosecution that the fact of the caution or the precise circumstances which led to it was material to the jury’s consideration of the case. They were, at best, tangentially relevant to the issue which the jury had to resolve. The appellant could not and did not say that that he was unlikely to commit an offence because he had a fulfilling and happy personal relationship with his partner. This was, in our view, far from evidence supportive of the complainant’s evidence or capable of giving rise to a finding of propensity. In our judgment, the learned judge was wrong to find that the fact that evidence, depending on the jury’s view, was relevant to an issue in the trial “disentitled” the appellant to a good character direction. The judge’s analysis of the issue was unduly restrictive and did not address the probative value of the appellant’s ‘good’ character. It deprived the appellant of a direction to which he was entitled in the circumstances.

In our judgment, the judge should have given a modified good character direction, not perhaps precisely in the terms which HH Judge Bing had provided to the jury in the first trial, but one which made reference both to the jury’s judgment of the appellant’s credibility and the absence in his record of any propensity to commit sexual offences. In our judgment there was no danger that such a direction would fail to meet the requirements of common sense.

Finally, we have to consider whether the absence of the good character direction affects the safety of the jury’s verdicts. As we have said, there was circumstantial evidence which provided limited support for the complainant’s account. We recognise that the chance that the complainant was in an active sexual relationship with another man or men during the indictment period might have been regarded by the jury as remote. However, since the outcome of this trial depended upon an evaluation of the evidence of the complainant and the appellant respectively we cannot dismiss the importance of a modified good character direction. We therefore allowed the appeal and quashed the convictions.