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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 >> Jarvis, R. v [2008] EWCA Crim 488 (22 February 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/488.html Cite as: [2008] EWCA Crim 488

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		22nd February 2008

1. LORD JUSTICE HUGHES: This appellant was in the jewellery trade. He was charged, together with a colleague, with stealing four items of jewellery worth a number of tens of thousands of pounds. The jewels belonged to a friend and customer of the appellant. They had been left with the appellant and his colleague by the owner, with a view to sale.
2. At the trial each defendant blamed the other for having the missing jewellery. In addition, the appellant made a number of allegations against the owner. The result of those two factors was that there were bad character applications made both by the Crown and the co-accused. In the event, the appellant was convicted and the co-accused acquitted.
3. The appellant's grounds of appeal challenge the decision of the Recorder in relation to some of the bad character evidence which the co-accused sought to adduce.
4. The appellant had worked for many years for a well-known firm of London jewellers. He had left them and set up on his own. First, he was in business from about 1999 with two men called Martin and Goff in a limited company called London Goldsmiths Ltd. He had parted company with that business around the turn of the year 2002 to 2003. After that he formed a second company, Jarvis of St James Ltd, of which he was the sole director and effectively the sole proprietor.
5. The co-accused man, Petty, had a background in sales or marketing rather than the jewellery expertise of the appellant. Petty operated as a salesman for the appellant. It may well have appeared to others as if he was employed, but it is equally likely that in fact the relationship was that of freelance contractor. Whichever it was, the two men were habitually in each other's company in the course of the appellant's business.
6. The owner of the jewellery was a long-standing customer of the appellant and on friendly terms with him. Through the appellant the owner met Petty. The owner had some silverware and also the jewellery, which was the subject of the indictment, to sell. The jewellery was kept together with some other jewellery on safe deposit in London. With a view to the sale of the indictment jewellery, the owner arranged for Petty to collect from London both that jewellery and the other on safe deposit on his authority. Of what Petty collected, six items were not for sale, but four (at least initially) were.
7. Petty collected all ten on 11th August 2003 and he took them down to Hickstead Show on the following day, where the appellant had a stand. There should have been an arrangement for a friend or partner of the owner to collect from Hickstead the six items which were not for sale over the few days of the show, but in the event that fell through. Either the appellant or Petty, or both, retained, therefore, all ten items. That was August.
8. After a good deal of coming and going in the intervening months, eventually the appellant met the owner at the Olympia Hilton hotel in London on 5th November and he returned six of the ten items. The other four, the subject of the indictment, have never been seen again.
9. In the weeks and months between 5th November and the spring of the following year, 2004, the appellant told the owner on a great many occasions, both by word of mouth and in writing, that he had made an insurance claim on his own insurance in relation to the missing four items, because they had been stolen from his stand at a show in Germany. Those assertions were false. No such claim had been made and, indeed, it is probable that the appellant did not have operative insurance at the time anyway.
10. Petty and the appellant continued to work together until at least the summer of 2004. In due course at the trial it was the appellant's case that Petty had taken the missing jewellery away from Hickstead back in August 2003 and that the appellant had never had it. Petty, for his part, said that it was the appellant who had taken the missing jewellery from Hickstead in August and he, Petty, had not had it since. In other words, the appellant contended that Petty had had it and had either stolen or lost it, and Petty said the converse about the appellant. There were, accordingly, the plainest possible cut-throat defences. Indeed, the appellant and Petty disagreed at almost every point of the chronology, which was extensive.
11. Quite apart from that, there was a root and branch dispute of evidence between the appellant, on the one hand, and the owner, the owner's friend and the owner's daughter on the other. The appellant's explanation for the admittedly false assertions that there was an insurance claim in train was that on an and after the Hilton hotel meeting in November 2003, the owner had pressurised him into making a false claim. He had threatened, said the appellant, to ruin his business. The false insurance claim on the appellant's case was entirely the owner's idea. With that assertion went a number of far-reaching allegations against the owner. The owner was said to be lying about a large number of conversations which had taken place between him and the appellant and, indeed, he was accused of having concocted a number of letters to and from the appellant and notes of conversations which he had made, all of which, on the appellant's case, the owner had fabricated.
12. That is a rather simplified precis of quite a long and complex story which occupied the Crown Court for 15 days. There were a great many meetings, a great many telephone communications and a number of letters between the various parties. At almost every point the evidence of the owner, his family, the appellant and the co-accused involved either two-way, and quite often three-way, irreconcilable disputes.
13. In all three bad character applications were made against the appellant. The first and second were made at the same stage, during his evidence-in-chief, by the Crown and the co-accused respectively. The third was made by the co-accused after the appellant had otherwise completed his evidence. The Crown's application was to adduce evidence of misconduct by the appellant when a director of London Goldsmiths Ltd. The erstwhile co-director of that company, a man called Martin, was in a position to give evidence that whilst the appellant was in that business he had serially misused a company credit card, by running up expenditure of something like £75,000 on unauthorised personal purchases. Martin was also in a position to give evidence that when the appellant had been confronted about it, he had first failed to attend a meeting to discuss it, then he had promised to repay and then he had defaulted on the promise.
14. The Crown made its London Goldsmiths' application on three different bases. Those were gateways (d), (f) and (g) of section 101 of the Criminal Justice Act 2003.
15. As to gateway (d), it was contended that the evidence afforded evidence of propensity to offend as charged, namely to steal. The Recorder rejected that contention. Alternatively, it was said that it was relevant as evidence of propensity to be untruthful. At that stage the Recorder was not persuaded of that either. He said that whilst the London Goldsmiths' evidence might demonstrate cavalier reckless or even arrogant behaviour on the part of the appellant, it was not either evidence of a propensity to steal the property of third parties or to be untruthful in his business relationships.
16. We say no more about the application to admit under gateway (f) than that it was rightly rejected on the grounds that gateway (f) relates only to false impressions given by a defendant about himself, which was not this case (see section 105(1)(a)).
17. However, none of that was critical to the Crown's application because it was also put under gateway (g), namely that the appellant had made an attack on the character of the owner. There was not any doubt about that; he undoubtedly had. Accordingly, the Recorder ruled that the Crown could adduce the London Goldsmiths' evidence. There is and can be no complaint about that ruling. It followed that the Crown was entitled, if it chose, to adduce that evidence in any manner by which evidence can properly be adduced. That would include cross-examining the appellant about it, it would include calling Mr Martin, and there might be a number of other ways in which it could be proved as well.
18. When the Crown made that application, the co-accused supported it. What the co-accused did not at that stage do was to make a parallel application of his own to adduce the London Goldsmiths' evidence. It may be that it was thought that the Crown was going to put the material in anyway. He did make a separate bad character application of his own. We agree with Mr Fortson that it is distinctly discursive in the manner that it is framed. In places it confused bad character evidence with other evidence, and in other places it confused the means of proof with the issue of admissibility.
19. However, what it plainly amounted to was an application to adduce evidence which can conveniently be grouped into three categories. They were: (a) that the appellant had been under financial pressure at the time; (b) that he lied to his customers to keep their business, and retained products which had been placed with him on approval when they ought to have been returned; and (c) that on two occasions identified, he had falsely told customers that property placed with him for sale had not been sold when it had, and had thus enabled himself to keep the proceeds of sale to discharge other debts. As to those, (a) was not bad character; (b) and (c) plainly were.
20. The co-accused's application was made, of course, under gateway (e). That required the Recorder to determine whether the proffered evidence had substantial probative value in relation to an important issue between the defendants. The Recorder held that that evidence was admissible through this gateway, and no complaint has been made about that.
21. In passing we should say that Mr Fortson draws attention in his written submissions to the fact that these applications were made only when the appellant came to give evidence. The judge had power to allow them to be made other than in advance of trial. The relevant rules are the Criminal Procedure Rules Part 35.
22. Applications which are based on the evidence given by one defendant will very often not arise until that evidence is given. The present case is an example. The appellant had to a very limited extent laid the ground in his police interview for what he eventually said in the witness box. In interview he had said that it had been the co-accused who went to fetch the jewellery from London and that he had not had it. That, however, was some way short of accusing the co-accused of taking the jewellery off from Hickstead, which is what he said when he came to give evidence. He had also said in interview that the owner had leant on him, the appellant, to get the jewellery back and had pointed out that he must be insured. That, however, is a very long way short of what the appellant eventually said in evidence, which was that the owner had induced him to make an entirely bogus false insurance claim based on a fictitious theft in Germany. Nor did the appellant's defence statement reveal any positive case against either the co-accused or the owner. It simply consisted of denial of possession and denial of dishonesty.
23. Accordingly, until the appellant gave evidence this appears to us to have been the kind of case which will not infrequently arise, where it would not have been clear that applications to adduce bad character by either the Crown or the co-accused would be justified. Moreover, informal notice had been given by the Crown that such application might well follow if the evidence justified it, which of course it did.
24. The occasion of the present appeal, however, is this. In the event, and clearly contrary to the expectations of the co-accused, the Crown elected not to pursue the London Goldsmiths' evidence in cross-examination of the appellant, or indeed in any other form. That was a matter for the judgment of counsel for the Crown, and that kind of judgment has to be made as the case proceeds. It plainly, however, took counsel for the co-accused by surprise. Counsel for the co-accused had cross-examined the appellant first, in the ordinary way. Now at the end of the Crown's cross-examination application was made on the co-accused's behalf to adduce the London Goldsmiths' evidence. In other words, there was now made on behalf of the co-accused the parallel application that ought really to have been made at the time that the Crown was seeking to adduce this evidence.
25. The Recorder held that the London Goldsmiths' evidence was admissible at the suit of the co-accused through gateway (e). After some hesitation, he held that the lateness of the application ought not to prevent it from being granted. He did that on the basis that an application by a co-accused under gateway (e) is not subject to the power of discretionary exclusion which is contained in section 101(3).
26. There followed a recall of the appellant for this material to be put to him. He denied it. The co-accused then called Mr Martin as part of his case. The appellant, in rebuttal, called the company accountant Mr Levy, who disagreed with Mr Martin on a number of points.
27. On behalf of the appellant, Mr Fortson now contends that the Recorder's last mentioned decision to allow the co-accused to adduce the London Goldsmiths' evidence at the late stage of the trial was wrong. It was wrong, he says, for two principal reasons.
28. First, Mr Fortson would ask us to say that evidence of untruthfulness or a propensity to untruthfulness, in the sense that it is used in Chapter 1 of Part 2 of the Criminal Justice Act 2003, means a propensity to be untruthful in the witness box and that bad character evidence of untruthfulness accordingly ought to be confined to evidence of past untruthfulness in the witness box.
29. Secondly, Mr Fortson contends that the Recorder's decision on the co-accused's application to admit the London Goldsmiths' evidence was inconsistent with the view that he had formed when considering the Crown's application to admit the same evidence, namely that it did not go to a propensity either to offend as charged or, more importantly, to be untruthful.
30. We are quite satisfied that there is no warrant in the statute for restricting bad character evidence going to a propensity to untruthfulness to evidence of past untruthfulness as a witness. That would very largely and quite unwarrantably restrict the admission of very relevant evidence. If a witness or defendant in the case has a proven history of untruthful dealing with other people, serial lying and the like, that is plainly relevant and ought to be admitted, so long, of course, as it has substantial probative value on an issue arising between the relevant parties.
31. As to Mr Fortson's second point, he is we think right to the extent that the Recorder's decision on the co-accused's application was that the London Goldsmiths' evidence went to untruthfulness was not consistent with the preliminary view that he had formed when considering the Crown's application. We are, however, absolutely certain that his second decision was right, whatever should have been the outcome of the Crown's application if it had depended only on gateway (d). We are absolutely satisfied that the London Goldsmiths' evidence did come within gateway (e). Whether it merely went to untruthfulness or not, it did have substantial probative value on the issue of which of the only two candidates had retained — and inferentially stolen — the missing jewellery. Further, the London Goldsmiths' evidence was evidence of a propensity or tendency to be untruthful and the case satisfied the additional hurdle placed by section 104(1) because the appellant's case undermined that of the co-accused.
32. Whilst Mr Fortson has invited us to consider whether the test of the meaning of untruthfulness differs as between an application made by the Crown and an application made by a co-accused, it is in this case wholly unnecessary to do so.
33. We should say that the Recorder was not, we think, bound to admit the evidence at the stage at which it was advanced. It is of course good law that there is no general discretion to refuse to allow one defendant to adduce admissible evidence against another on the broad ground that its prejudicial effect exceeds it probative value: see R v Miller (1952) 36 Cr App R 169. It is also correct that section 101(3) of the 2003 Act does not apply to bad character evidence admissible through gateway (e).
34. That does not mean that the judge could not remain in control of the proceedings. In particular, where a late application to adduce bad character evidence is made, the Criminal Procedure Rules Part 35, paragraph 8, give him a wide discretion whether to allow the late application or not. As we have said, it will often be the case that an application has to be made later than the Rules provide for. But we are quite satisfied that if it were to be made so late that the judge took the view that the target of the application would unfairly simply be unable to deal with the evidence, he has ample power under the Rules to refuse to the admit it. Whether such unfairness will arise will, of course, be a question of fact in each individual case.
35. In the present case, the appellant could not have been taken by surprise, given the earlier ruling that the Crown could adduce the London Goldsmiths' evidence. Moreover, he was in fact able to meet the evidence of Mr Martin, not only with his own evidence, but also with that of Mr Levy.
36. WE think that some judges would have refused to allow this evidence to be given at the late stage that it was tendered, especially since it undoubtedly opened up a new area of disputed fact which might lead to disproportionate time being absorbed by a satellite issue. But in this case the appellant was not taken by surprise and was able to deal with the evidence.
37. Moreover, there could be no doubt at all that the bad character evidence which the co-accused had, upon timely application, been permitted to adduce, quite apart from the London Goldsmiths' evidence, was important evidence. It went, if it was accepted, to show that the appellant had previously behaved to customers who had left valuables with him for sale in a manner closely resembling what he was alleged to have done with the missing jewellery in this case. Together with the very powerful evidence of the owner as to the way that the appellant had behaved once the owner started chasing the missing jewellery, and especially the admitted evidence of the false assurances of an insurance claim, that provided in this case an overwhelming case against the appellant.
38. We are wholly satisfied that this conviction is quite safe.
39. Lastly, we should observe that the single judge raised the question whether the London Goldsmiths' evidence was wrongly admitted because, as adduced, it was not confined to questions by the co-accused of the appellant in cross-examination. However, section 104(2) makes it clear that once the judge has permitted the introduction of bad character evidence, the co-accused may adduce it both by cross-examination of the defendant and by calling evidence as part of his own case.
40. In those circumstances, this appeal must be dismissed.
41. MR LIVINGSTON: I am grateful.
42. Can I say I am also instructed to make an application for costs in this case in the sum of £1,000.
43. LORD JUSTICE GAGE: Mr Fortson?
44. MR FORTSON: My Lord, I would invite the court to make no order as costs. It is true the appellant has lost his appeal. On the other hand, it was an appeal, in my submission, properly brought, and indeed the observations made by this court this morning are bound to be of considerable assistance to practitioners and to the courts. My Lord, I appreciate that in itself is not a reason for not awarding the respondent costs, but having regard to all the features of this particular case, I would invite the court to make no order.
45. LORD JUSTICE GAGE: Without indicating in any way what we would decide, have you any complaint about the sum of the costs?
46. MR FORTSON: No.
47. LORD JUSTICE HUGHES: What about his means, Mr Fortson, anything you want to put before us about that?
48. MR FORTSON: He does have disposal income between, I am instructed, £500 to £1,000 a month.
49. LORD JUSTICE HUGHES: And assets? It is a criminal case, we are supposed to look at his means, are we not?
50. MR FORTSON: Yes, my Lord. I have very limited instructions as to his means.
51. LORD JUSTICE GAGE: I see. We will adjourn for a short while.
(Short adjournment)
52. LORD JUSTICE GAGE: Mr Fortson, we think that, in the circumstances of this case, there should be an order for costs in the sum sought.
53. MR FORTSON: My Lords, so be it.
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