Morton, R, v

On 15 February 2018, in the Crown Court at Oxford before His Honour Judge Ross, the appellant was convicted of handling stolen goods, contrary to section 22 of the Theft Act 1968. On the same occasion he was sentenced to 6 months' imprisonment. This was ordered to run consecutive to a further term of imprisonment imposed on another indictment involving counts of dangerous driving and driving whilst disqualified. The total sentence on all matters was 30 months' imprisonment.

He appeals against conviction by leave of the single judge.

There was no dispute that a Mr Massimo Facciuto was the owner of a Honda motorcycle registration S909 JTF ("the motorcycle"). Mr Facciuto was on holiday between 21 May 2017 and 11 June 2017. During this period, in particular on 5 June 2017, he was made aware, by speaking to a friend, that his motorcycle had been stolen. The friend had last seen the motorcycle outside Mr Facciuto's address on 4 June 2017 at around 10.00 pm.

On 28 June 2017 the police attended the appellant's address in order to arrest him for unrelated matters. Whilst at the address the police discovered the motorcycle underneath a tarpaulin in the rear garden of the address. On hearing the police discuss carrying out checks on the vehicle the appellant stated: "That's my mate's bike. That's not stolen. Anyway it's been there for ages".

The appellant gave a "no comment" interview.

The prosecution case was that the appellant knew that the motorcycle was stolen, it was found at his address and he failed to provide any explanation for its presence.

The Crown relied on his previous convictions for handling stolen goods in 2011 and 2013 and theft of a motorcycle in 2016. The Crown argued that the convictions showed the appellant had a tendency to handle stolen goods and to be involved with stolen motorcycles.

The defence case was that the appellant was in the process of repairing the motorcycle for a friend. The appellant gave evidence that he had moved to the address, which was his grandmother's, a couple of months before he was arrested at the end of June. He had with him his personal belongings and motor vehicle tools. He received the motorcycle after he had a chance meeting with a friend at the local shops. He would not name the friend and did not want to "grass" him up.

The issue for the jury was whether the appellant knew or believed the motorcycle to be stolen.

The Crown argued that the appellant's previous convictions were admissible, pursuant to section 101(1)(d) of the Criminal Justice Act 2003. They were relevant to a matter in issue, namely whether the appellant had a propensity to commit offences of the kind charged.

The Crown sought admission of a number of convictions between September 2007 and March 2016. The principal defence objection was that the evidence should not be admitted simply to bolster a weak case. The simple fact that the stolen property was found at the appellant's address did not make it a strong case. To admit previous convictions for handling stolen goods would give rise to serious concerns.

The judge ruled that the evidence of the previous convictions for handling stolen goods in 2011 and 2013 did demonstrate a propensity to handle stolen goods. The judge said that the case against the appellant was not weak: a valuable motorcycle was found in the appellant's possession and he had declined to answer any questions in interview. Despite the suggestion from the defence that any section 34 direction would be contested there was a prima facie basis for a section 34 direction at this stage. There were no reasons to exclude the evidence under section 78 of Police and Criminal Evidence Act 1978. There was no prejudice to the appellant.

The judge would not allow the Crown to rely on evidence of theft convictions in 2007 and 2009. Nor would he allow evidence of the appellant's theft conviction in 2014. It would not assist the jury with their deliberations particularly given the fact that the vehicle was stolen was not in dispute.

The judge then considered the appellant's 2016 convictions for theft of a motorcycle and robbery. The theft conviction did establish that the appellant was prepared to be dishonest in respect of motorcycles, the robbery conviction, on the face of it, was relevant on the basis the stolen motorcycle was used to commit the robbery. It would be admitted on that limited basis. The judge therefore admitted the evidence of two convictions for handling stolen goods and theft of a motorcycle and use in the robbery in 2016. They were admitted under section 101(d) gateway, although the judge remarked that section 27(3) of the Theft Act was another possible route to admissibility.

The sole ground of appeal is that the judge erred in admitting the appellant's previous convictions. The evidence simply bolstered what was otherwise a weak case.

On behalf of the appellant Mr McCann, in his written submissions, as supplemented orally before us today, submits that in the absence of evidence regarding the appellant's previous convictions the Crown's case is accurately described as "weak". There was no extraneous damage caused to the vehicle which indicated it had been forceably removed or stolen. There was no damage, for example, to the ignition. There were no identifying markers consistent with the vehicle belonging to an individual not known to the appellant. There was no evidence of preparation for sale. There was no sophisticated method of hiding the motorcycle. There was no specific proximity in location or time in relation to which any connection could be identified between the appellant and the actual theft or anyone responsible. Nor was there anything remarkable in respect of the actual value of the motorcycle. It was accepted at the time of his arrest that the motorcycle was not functioning.

It is also submitted that the judge erred in basing his decision, in part, on the weight of the prosecution case predicated on a presumption that the jury would be invited to draw an adverse inference before any submissions or evidence on the point had been heard. In fact no such inference was invited in this case.

It is conceded that it remained open to the jury to simply reject the oral evidence of the appellant and that the further inference regarding his continued failure to name the individual responsible for providing him with the motorcycle each constituted within themselves a sufficient evidential basis upon which any conviction could have been rightfully founded.

Nevertheless, it is submitted that the impact of the evidence of the previous convictions and indeed of the propensity directions themselves are such that they would be a matter drawn to the forefront of the jury deliberations and the decision reached.

In all the circumstances it is submitted that the admission of the bad character evidence was in error and that the conviction was accordingly unsafe.

The Crown accepts that the court ought not to allow previous convictions before a jury where they merely bolster a weak case. It is submitted, however, that this was not a weak case even if one leaves out of consideration the appellant's "no comment" interview.

There was no dispute that the motorcycle had been stolen recently. There was no dispute that it was in the possession of the appellant. Further, on arrest, when the appellant learned that checks were being carried out on the motorcycle in the garden of the property he was staying at, he said words to the effect: "That's my mate's bike, that's not stolen. Any way it's been there for ages". That was demonstrably not the case in two respects as (i) the motorcycle was stolen and (ii) had been stolen some 23 days earlier. Further, the fact that the appellant's immediate response was to assert the motorcycle was not stolen was itself revealing. That statement, the presence of the motorcycle on the appellant's property and the unidentified "mate" all called for explanation, but none was provided by the "no comment" interview or the defence statement.

In our judgment, the judge was entitled to conclude that the case for the Crown was not a weak one, irrespective of whether an inference was to be drawn from the appellant's failure to answer questions when interviewed under caution. The decision to admit the bad character evidence was accordingly justifiable and the conviction is not arguably unsafe.

For the reasons outlined above, the appeal must be dismissed.