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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Heffernan, R. v [2006] EWCA Crim 2033 (15 August 2006) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2006/2033.html Cite as: [2006] EWCA Crim 2033

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		No: 200505833/D2 Royal Courts of Justice Strand London, WC2
		Tuesday, 15th August 2006

1. LORD JUSTICE GAGE: On 19th September 2005, at the Blackfriars Crown Court, this applicant was convicted of four counts. They were aggravated burglary (count 1) false imprisonment (counts 2 and 3) and unlawful wounding (count 4). He was sentenced in respect of those offences as follows: count 1, nine years' imprisonment; counts 2 and 3, five years' imprisonment on each; count 4, two years' imprisonment. All those sentences were concurrent, save for count 4, the two years' imprisonment was consecutive to count 1. The total sentence was, therefore, 11 years' imprisonment.
2. He now renews his application for leave to appeal against conviction, leave having been refused by the single judge.
3. The issue at trial was identification. In summary the evidence was as follows. At 2.00 p.m. on 31st August 2004 Mrs Joan Stone, and her two children, Charlie aged 15 and Katie aged 13, were at home in Erith, Kent. Mrs Stone's husband was at work. A car suddenly pulled up on the drive and two men got out. They rang the door bell. Charlie answered the door. The two men then barged into the house, pushing Charlie to the floor. They started to demand money from Mrs Stone and threatened her with a 10 inch kitchen knife. She and Charlie were tied up, but Katie managed to escape through the French windows at the back of the house. The man holding the knife threatened to slit Mrs Stone's throat and then ransacked the bedrooms for money and jewellery.
4. A short while later Mrs Stone's husband and two of his colleagues arrived at the house. He had been telephoned by Katie from a neighbour's house. The two men fled out of the French windows and attempted to climb over the fence in the rear garden. Mr Stone's colleague, Andrew Duff, grabbed hold of one of the men's legs as he climbed over the fence, but the man slashed his face with a knife causing him to let go.
5. Shortly afterwards a neighbour saw a man with dark skin and dark hair climbing over the fence of her house which backed on to the Stones' property. The man dropped something in a nearby bush and ran off. When the police arrived, they retrieved a balaclava from the bush.
6. Joan and Charlie Stone said that the first man to enter the house had fair skin and was wearing a balaclava throughout the incident. The second man, who the prosecution alleged to be the applicant, had dark skin and dark hair and was not wearing anything on his head initially, but half way through the incident he too put on a balaclava. The balaclava seized was forensically examined and the DNA profile found on it matched the DNA profile of the applicant. In addition, there were possible minor components indicating the presence of DNA on the balaclava from at least one other individual. However, further work was needed to confirm their presence.
7. On 17th February 2005 the applicant was arrested and interviewed. He declined to answer any questions put to him. We are told, however, that he was told that there was some forensic evidence which connected him with the burglary. Accordingly, we have been informed by Mr Sutherland today, that at that stage he made a statement to his solicitors, which he signed, in which he explained that some time earlier his van, which he used for work, had been broken into and a balaclava and protective clothing was stolen from the van.
8. The prosecution case was that the applicant was the dark skinned male person involved. The prosecution relied on the descriptions given by witnesses which were consistent, it is said, with the description of the applicant and the DNA match on the balaclava found close to the scene.
9. The defence case was that whilst the applicant's DNA had been found on the balaclava the applicant was not one of the two men involved in the burglary. The applicant gave evidence. He said that he could not remember where he was on 31st August 2004, but believed that he was working as a gardener. However, he said some time before 31st August 2004 his van had been broken into and a number of items of gardening equipment, including his balaclava, had been stolen. The defence relied on the possibility that someone else's DNA may have been present on the balaclava and the fact that the witnesses all failed to pick the applicant out at identification parades.
10. In the course of the trial the prosecution sought and were granted leave to adduce evidence of a previous conviction of the applicant for burglary.
11. The issue for the jury was, as we have said, identification.
12. There are three grounds of appeal, but in essence they are all interlinked to the first ground, which is that the judge was wrong to rule that the applicant's conviction for burglary, committed on 30th December 1997, was admissible. Secondly, it is said that the judge was wrong to rule at the close of the prosecution case that there was a case for the applicant to answer. Thirdly, and finally, it is contended that the judge misdirected the jury in relation to bad character.
13. We deal, first, with ground 1. The details of the previous conviction that the judge ruled admissible are as follows. At about 5.35 p.m. on 30th December 1997 the applicant burgled residential premises in the Bexley area. The facts were that he repeatedly knocked on the front door, but, failing to gain entry by that means, went to the back of the premises and forced entry through the kitchen window. The premises were unoccupied at the time and he stole jewellery from the bedroom. He pleaded guilty to that offence.
14. The prosecution submitted that this conviction, the only one of many convictions of the applicant relied upon by the prosecution, was evidence of a propensity to burgle.
15. In submissions to the judge the prosecution relied on the provisions of section 101(1)(d) as evidence of propensity. For the applicant it was argued before the judge, as it has been argued today by Mr Sutherland before us, that the conviction should not be admitted. A number of matters are relied on by Mr Sutherland. They are, in summary, as follows. First, the previous conviction was some eight years earlier. Secondly, the modus operandi was quite different. The facts of the modus operandi in this matter were relied on as being wholly different from the facts as we have already outlined them in relation to the previous conviction. Thirdly, and this is put at the forefront of the submissions before us today, the evidence against the applicant was, it is submitted, very weak and it was, therefore, unfair and unjust to allow evidence of the conviction to be adduced.
16. In support of those submissions Mr Sutherland relies on section 101(3) and 101(4) of the Criminal Justice Act 2003. For these purposes they are:

"(3) The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

(4) On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged."

17. Mr Sutherland relies on dicta in the decision of this court in R v Hanson [2005] 2 Cr App R 21. Further, he has placed before the court a paper by Professor Spencer QC in support of his submissions. In particular he relies on paragraph 42 of the paper, which is a revised draft of 1st April 2005, and reads as follows:

"The real difficulty with bad character evidence is probably not so much the risk that it will inflame the fact-finder, but the fact that it is a form of evidence that is typically weak; and like other forms of weak evidence, it presents a danger where the court is invited to convict on this and little else. In other words, a key factor is determining whether it is fair to admit evidence of bad character is the strength of the rest of the evidence. It cannot be a substitute for 'hard evidence' that implicates the defendant more directly -- and it should not be admitted to strengthen a case in which the other evidence is slender. On the other hand, there is no unfairness involved in admitting this sort of evidence where the other evidence is strong, and in particular where it may clinch the case."

18. So, it is submitted by Mr Sutherland, the judge, whilst not making any error of law in his ruling, failed properly to assess the evidence in the prosecution case. It is submitted that the judge wrongly concluded that the prosecution case was a strong one and that if he had, as he ought to have done, appreciated that the evidence was weak, then the conviction ought not to have been admitted.
19. In particular Mr Sutherland relies on an observation of the judge's in his ruling which follows a description of the balaclava found at the burgled premises and the fact that the applicant's DNA was found on the balaclava. The judge in his ruling stated (page 10E):

"So that puts this defendant at the scene."

Mr Sutherland submits that that was an error in his assessment of the evidence.

20. This court also has before it, provided by the Registrar, the case of R v Renda and others [2005] EWCA Crim 2826. In that case the court dealt with a number of appeals in relation to the bad character provisions of the Criminal Justice Act 2003. At the outset of the judgment the President of the Queen's Bench Division said (paragraph 3):

"We have some general observations. Several of the decisions or rulings questioned in these appeals represent either judgments by the trial judge in the specific factual context of the individual case, or the exercise of a judicial discretion. The circumstances in which this court would interfere with the exercise of a judicial discretion are limited. The principles need no repetition. However we emphasise that the same general approach will be adopted when the court is being invited to interfere with what in reality is a fact specific judgment. As we explain in one of these decisions, the trial judge's 'feel' for the case is usually the critical ingredient of the decision at first instance which this court lacks. Context therefore is vital. The creation and subsequent citation from a vast body of so-called 'authority', in reality representing no more than observations on a fact specific decision of the judge in the Crown Court, is unnecessary and may well be counterproductive. This legislation has now been in force for nearly a year. The principles have been considered by this court on a number of occasions. The responsibility for their application is not for this court but for trial judges."

21. Mr Sutherland fairly concedes that this is a fact specific matter for the judge to decide in his ruling. However, as we have indicated, he submits in this case in his assessment of the evidence he erred in saying it was a strong case.
22. The judge gave a clearly reasoned ruling. In his ruling he cited passages from the judgment in Hanson. It is obvious from these that he correctly directed himself on the law. He was well aware of the submissions of counsel. In particular, he dealt with the submission that the conviction was some years earlier and there were some differences with the facts of the earlier offence and the instant offence with which the jury was dealing.
23. When dealing with his submissions under subsections (3) and (4) of section 101 he said (page 9 to 10 letter G):

"I bear very much in mind the mandatory and powerful words of that subsection. [He is referring to subsection (3) of section 101, although as a slip he referred to subsection (4)]. The words of the subsection read:

'The court must not admit evidence.'

One clearly sees a very important distinction to be drawn between those words and for example the words of the section 78 of the Police and Criminal Evidence Act. It is said by Mr Sutherland on behalf of the defendant that this is a case where the prosecution evidence, leaving aside that of the previous conviction, is slender. I do not agree. A balaclava was found very near the burgled premises upon which undoubtedly this defendant's DNA was found. Various descriptions were given of a balaclava, indeed of two; one worn by the first robber, burglar, the other worn by the second at various times. These descriptions are essentially of dark-coloured woolly balaclavas.

[We interpolate, there then comes the sentence criticised by Mr Sutherland]. So that puts this defendant at the scene."

24. The ruling continues:

"As things stand of course on the evidence produced by the prosecution, it is upon that material that I must determine this application. That evidence powerful as it is does not stand alone."

He then went on to deal with descriptions of the two burglars, and, in particular, the one alleged to be this applicant, given by the witnesses.

25. Mr Sutherland submits that the evidence of descriptions was not as strong as the judge appeared to have assumed. He has in his submissions to this court drawn attention to some differences between the descriptions given by the witnesses and a proper description of the applicant. Perhaps most significant is the fact that Mrs Stone put the age of the burglar as in the mid-20s, whereas the applicant was 40. Her son Charlie placed him in his early 30s, that is the person whom he had seen. Whereas the witness who had seen the burglar who dropped the balaclava in her back garden put his age at 40. All those matters were matters for the judge when deciding whether or not to admit this evidence to consider, as indeed he did. They were also matters which in due course were to be considered by the jury.
26. In our judgment, the judge in the passage to which we have referred was doing no more than as he was entitled, to recite the evidence which was before the jury at that stage. It has to be remembered that at that stage the jury had not heard evidence on oath of the applicant's explanation for his DNA being on the balaclava. It is clear, in our judgment, that the judge made no error of law and no error of principle. Therefore, it was a matter of fact for him to consider when deciding whether or not to rule admissible this previous conviction.
27. Having given the matter the most careful consideration and having taken into account all the submissions put before us by Mr Sutherland, we have reached the conclusion that it is quite impossible for this court to say that the judge was wrong in his ruling. Accordingly, in respect of this ground, we do not regard it as arguable.
28. We turn to the other two grounds of appeal. We can deal with those comparatively shortly. They are, as Mr Sutherland fairly accepted, linked very much to ground 1. It was submitted at the close of the prosecution case that there was no case for the applicant to answer. The judge described the evidence at that stage as powerful. On behalf of the applicant it was submitted to him, as it has been submitted to us, that the evidence was entirely circumstantial. We have reached the conclusion that, even if the judge had ruled the evidence of the previous conviction inadmissible, there would still have been a case for him to answer. The evidence of his DNA on the balaclava was undoubtedly powerful evidence. At that stage there was no evidence on oath as to the applicant's explanation for it. In the circumstances, bearing in mind the judge had correctly, as we have found, ruled that the previous conviction should be admitted, that lent support to the prosecution case. There was also the descriptions given by the witnesses which may have differed in some respects, but plainly all the evidence provided a prima facie case and the judge was correct to rule that the matter should be left to the jury.
29. So far as the third ground of appeal is concerned, this relates to the judge's direction in relation to bad character. His directions are set out at pages 14 to 16 of the summing-up. They finish with a direction that the jury should ask itself three questions, of which the first one was (page 15E):

"First, you must ask: does that previous conviction establish a propensity to burgle people's homes?"

30. It is submitted on behalf of this applicant by Mr Sutherland that this does not follow the precise formulation of the first question posed by Rose LJ when giving guidance in Hanson. The first question in Hanson is expressed in this way:

"1. Does the history of conviction(s) establish a propensity to commit offences of the kind charged?"

31. We have to say that we find this submission quite unrealistic. The judgment in Hanson is not part of a statute. The guidance, no doubt useful, was not intended to be followed slavishly as if it were. Judges are encouraged to tailor directions to suit the issues in the case. Here the criticism that the judge should have directed the jury that they should consider whether the conviction established a propensity to commit an offence in exactly the same way as the earlier offence in our judgment is far too narrow. In reality, in our judgment, this submission is an attempt by another route to get round the judge's ruling that the applicant's conviction was admissible. We have already rejected that argument. We reject this one.
32. It follows that, in our judgment, there are no arguable grounds of appeal. Accordingly, this application must be refused.