R v Ramyran Gaiziunas

On 10 January 2019, following a trial in the Crown Court at Liverpool before His Honour Judge Warnock and a jury, the appellant was convicted of two offences of breach of a non-molestation order (counts 1 and 2) and two offences of breach of a restraining order (counts 3 and 4). He was subsequently sentenced to a total of two years' imprisonment, comprising concurrent terms of 18 months for each of the four breach offences and the consecutive activation of six months of a suspended sentence.

The appellant now appeals against his convictions by limited leave of the full court.

For present purposes we can summarise the facts briefly. In doing so, we will need to mention both the case with which the court is presently concerned, and a separate case relating to an offence of having a bladed article in a public place.

For a number of years the appellant was in a relationship with the complainant. They have a son together. They separated in 2016.

In February 2018 the appellant went to a martial arts centre where his son was present. The son was in the company of the complainant's mother. There was an argument which led to the police being called and to the appellant being arrested by a Police Constable McIntyre. PC McIntyre asserted that he had found a lock-knife in the bag which the appellant was carrying. The appellant initially seemed to admit possession of a knife; but he later said that he had misunderstood what was being alleged and he denied any knowledge of the lock-knife, which he suggested may have been "planted" in his bag.

The appellant was charged with having a bladed or pointed article in a public place, namely the lock-knife. He made his first appearance in a magistrates' court on 1 March 2018. He indicated a not guilty plea and elected trial at the Crown Court.

A few days after that court appearance, the complainant obtained a non-molestation order against the appellant in the Family Court. That order, which was to last for 12 months, prohibited the appellant, amongst other things, from communicating with the complainant.

The appellant's trial on the charge relating to the lock-knife did not take place until later that year. In the meantime, events had occurred which are relevant to the matters now before the court.

On 2 May 2018 and 4 July 2018, the complainant received messages via a LinkedIn account which was in the name of the appellant. If those messages came from the appellant, as the complainant alleged they did, they amounted to breaches of the non-molestation order. They were the subjects of counts 1 and 2.

Then on 11 July 2018 the appellant pleaded guilty in a magistrates' court to an offence of breach of the non-molestation order. He was fined for that offence and a restraining order was made which prohibited him from contacting the complainant.

On 7 August 2018, the complainant received a further message via LinkedIn, again from an account used by the appellant. Again, if it came from the appellant, as she alleged it did, it was a breach of the restraining order. It was charged as such in count 3.

The next relevant event came on 24 August 2018 when, following a trial in the Crown Court, the appellant was convicted of what we will refer to as the bladed article offence. He was sentenced to 12 months' imprisonment suspended for 18 months. One of the requirements of the suspended sentence order was a curfew with electronic monitoring for nine months. The appellant must, therefore, have been wearing a tag at the time of the fourth offence with which we are concerned, and at the time of his trial in January 2019.

The fourth event occurred on 12 October 2018. The complainant took her son to school. She saw the appellant in a car on the other side of the road. She followed him to a nearby garage and then confronted him. Part of the ensuing conversation was recorded by her. It became the subject of count 4, which alleged a further breach of the restraining order.

At the trial of the four charges of breach of protective orders, the complainant and the appellant both gave evidence. The defence case was that the appellant had not sent any of the messages which were the subject of counts 1, 2 and 3; someone else must have used his account in order to do so.

As to count 4, the appellant said that he had a reasonable excuse for any breach of the order, in that he had taken his car to the garage for repair and had then been assaulted by the complainant.

Towards the end of his evidence in chief, the appellant said words to the effect that he was a medical professional whose life was dedicated to looking after others, and that during the events which gave rise to count 4 he was motivated by concern for his son.

Prosecution counsel, then as now Mr Scholes, submitted that the appellant had thereby created a false impression of himself as effectively a man of good character. Mr Scholes applied, pursuant to section 101(1)(f) of the Criminal Justice Act 2003, to adduce evidence of the bladed article conviction in order to rebut that false impression.

Having heard submissions from counsel then representing the appellant, and having considered section 105 of the 2003 Act, the judge granted the application. He ruled that the appellant had made a positive assertion of good character and that there could be no unfairness in evidence being put before the jury to redress the balance.

Later, in his summing up, the judge explained to the jury that the prosecution alleged that the appellant had been trying to mislead them by giving a false impression of himself, whereas the defence said that he had not been misleading the jury. The judge gave the following direction:

As we have said, the jury convicted the appellant of all four offences of breaches of the protective orders. No appeal was brought at the time. We can infer that counsel who had represented the appellant at trial, and who was under a professional obligation to advise as to any grounds of appeal, did not take the view that arguable grounds existed at that time.

Moving on in time, PC McIntyre was later prosecuted for offences committed in an unrelated incident which occurred in June 2019. He was convicted in April 2021 of assault occasioning actual bodily harm and doing acts tending and intended to pervert the course of justice.

In February 2024 this court, differently constituted, quashed the appellant's conviction of the bladed article offence. It held at [20] of the judgment that the conviction was unsafe because

In addition to pursuing that appeal, the appellant had also applied for a long extension of time in which to apply for leave to appeal against his conviction for the breach offences. He put forward numerous, lengthy grounds of his own composition. His application was refused by the single judge. The appellant renewed it to the full court. The full court rejected all but one of the grounds as being without merit. It granted the applications for an extension of time and for leave to appeal, however, in relation to the following ground:

In his written and oral submissions on behalf of the appellant to this court today, Mr Jarvis argues that the convictions for the breach offences are unsafe because the trial judge would not have admitted the bad character evidence if he had known of the facts which led to the quashing of the bladed article conviction. As it was, Mr Jarvis submits, a finding by the jury in this trial that the appellant had misled them would have caused them to doubt his credibility. Mr Jarvis argues that this is a case in which the credibility of the appellant's account of events was critical to the case against him, and that any evidence that was capable of undermining his credibility could have made the difference between the jury not being sure of guilt, and the jury being sure of it. Mr Jarvis submits that if the bad character evidence of the appellant had not been put before the jury, it is likely that the jury would have formed a more favourable view of his credibility, which in turn could have led them to be in doubt as to his guilt. For those reasons, Mr Jarvis submits that all four convictions are unsafe.

In his oral submissions to the court today, Mr Jarvis, with typical realism, helpfully confirmed that he did not seek to criticise the judge's decision to admit the evidence at the time that decision was made. Nor does he criticise the terms in which the judge directed the jury, having admitted that evidence.

Again helpfully, Mr Jarvis also confirmed that he is not here arguing for any sort of general rule that the subsequent quashing of a conviction which has formed part of bad character evidence will inevitably lead to the quashing of any conviction returned at the trial in which the bad character evidence was adduced. Mr Jarvis confines his submissions to the particular circumstances of this case, and he draws our attention to two features in particular. First, he submits that as a result of the actions of PC McIntyre, the appeal against conviction for the bladed article offence was not opposed by the respondent. Secondly, Mr Jarvis repeats his submission that in the circumstances of these four charges, the appellant's credibility was central. He submits that this is not a case in which the convictions could be said to be safe, regardless of whether or not the bad character evidence had been before the jury.

For the respondent, Mr Scholes submits that the convictions remain safe, notwithstanding the quashing of the bladed article conviction. He argues that the case against the appellant was a strong one, even without the bad character evidence. He points out that even if there had been no previous conviction for the bladed article offence, at the time of his trial the appellant would still have had the previous conviction for the earlier breach of the non-molestation order. At the very least, Mr Scholes submits, the appellant would not have been entitled to a full good character direction. Furthermore, Mr Scholes suggests that with the benefit of hindsight, it may be that the decision not to seek to adduce that conviction at the trial was a generous one. If application had been made, he submits, it would have been a meritorious one. If, therefore, the jury had not heard about the bladed article conviction, but had heard about the previous conviction for breach of a non-molestation order, Mr Scholes suggests that the appellant would have been in the same position before the jury as was in fact the case – if anything, he suggests, a worse position.

We are grateful to both counsel for the assistance they have given us with their focused and clear submissions.

Reflecting on those submissions, it seems to us that there is a divergence between the ground of appeal for which leave was given and the arguments now advanced on the appellant's behalf. The appellant does not, in reality, argue that the judge fell into error. Mr Jarvis accepts that at the time of the trial there was a valid and subsisting conviction for the bladed article offence. He has not sought to argue either that the judge was wrong to find that the appellant's evidence could properly be regarded by the jury as the deliberate creation of a false impression, or that the judge was not entitled to conclude that adducing the evidence of the previous conviction would be unfair to the appellant.

The reality of the case, as it seems to us, is that the appellant now seeks to rely on fresh evidence to argue that a conviction which was safe at the time has now been shown to be unsafe by reason of information which has come to light some years after the trial. It is unfortunate that the appeal has not been prepared and presented in that way. In fairness to the appellant, however, we have looked beyond any procedural deficiencies to consider the merits of the case. Treating this as a case of fresh evidence – namely, the evidence of the quashing of the bladed article conviction – the question which we have to decide is whether the convictions for the four offences of breach are now unsafe.

In our view, the prosecution case really turned on whether the jury were sure that the complainant's evidence was truthful and reliable. They heard her version of events and they heard the appellant's version. It must be said that in relation to counts 1, 2 and 3, the appellant's case involved the feature that an unknown person had, for reasons unknown, somehow gained access to his LinkedIn account, and had sent messages to the complainant expressed in terms which were at the very least consistent with what the appellant might have been expected to say. His version of events in relation to the fourth incident involved more than one coincidence to put him in the wrong place at the wrong time, and also involved an allegation against the complainant that it was she who had initiated an argument and had assaulted him.

The bad character evidence only went before the jury at all to correct the false impression which the jury could find the appellant had deliberately created. It was adduced in order to counterbalance that misleading assertion, not to create a new strand to the prosecution case. Although we do not have the details of the precise course taken, it seems that the previous conviction of the bladed article offence was put to the appellant in cross-examination, and he would have therefore had an opportunity to say what he wanted to say about it.

Further, the judge's directions to the jury did not emphasise the bad character evidence in any way. The judge told the jury that they must not convict wholly or mainly because of the bad character evidence, and there is no reason to think that they disobeyed that direction. The factual summing up does not seem to have mentioned the previous conviction at all.

By their verdicts, the jury were sure of the complainant's truthfulness and reliability. True it is, as Mr Jarvis submits, that the jury's decisions as to the bad character evidence could have caused them to be more doubtful of the appellant's evidence. But their verdicts depended on whether they believed the complainant. We agree with Mr Scholes' submission that the prosecution case, regardless of the previous conviction, was a strong one.

There is the further point which Mr Scholes has raised, namely that it would have been open to the prosecution to seek to adduce the previous breach of a non-molestation order as evidence to rebut the false assertion of good character. Had that application been made, it seems to us that it would have been a strong one. But, in any event, we agree with Mr Scholes that at the very least the appellant would not have been entitled in any circumstances to a full good character direction.

Again in fairness to the appellant, we have reflected on whether any distinction should be drawn between counts 1, 2 and 3, on the one hand, and count 4, on the other hand. Although no point to this effect has been argued, we have considered whether it might be said that the appellant's position was stronger in relation to count 4 than in relation to counts 1, 2 and 3. We conclude, however, that no meaningful distinction can be drawn in this respect. The reality of the case, as it seems to us, is that the appellant's credibility must have been severely damaged by the jury's rejection of his assertion of an unknown person improperly making use of his LinkedIn account.

For all those reasons, we conclude that the convictions do remain safe.

Grateful though we are to Mr Jarvis for his submissions on the appellant's behalf, this appeal accordingly fails and must be dismissed.