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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Clarke, R. v [2011] EWCA Crim 939 (01 April 2011) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2011/939.html Cite as: [2011] EWCA Crim 939

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		1 April 2011

1. LORD JUSTICE ELIAS: On 10 September 2010, the appellant, Trevor Clarke, was convicted by HHJ Issard-Davies and a jury at Inner London Crown Court on an indictment containing six counts: two counts of indecent assault on his stepdaughter, HH, and three of indecent assault on HH's sister, RH, as well as a single count of sexual activity with a child in which RH was the complainant. He was sentenced on 8 October to various sentences in relation to the particular counts amounting to eight years' imprisonment in all, and there were also associated SOPO and other orders. He now appeals against conviction by leave of the single judge.
2. It is not necessary for the purposes of this appeal to go into the detail of the particular offences. Suffice it to say that they involved a number of assaults upon HH from around a period when she was 10 to 15 years of age, and upon RH, who was four years younger, from around 7 to 14 years of age. They involved inappropriate touching and simulated sex, and on one occasion a penis being inserted at least some way into the complainant's vagina. All of the allegations took place at the address the appellant shared with the complainant's mother and the two sisters.
3. The mother was unaware of any sexual contact between the appellant and her daughters until she was informed by RH in January 2009, shortly before she reported the matter to the police. The complainant had in fact told her general practitioner of the alleged abuse some months earlier.
4. The appellant made total denials of touching either girl in interview and at trial. He suggested in cross-examination that the evidence of RH had been invented, and she had in turn persuaded HH to make the false allegations of her own in order to bolster the credibility of RH's account.
5. The case was put very firmly to both girls. It was indeed central to his defence that RH in particular began to hate and resent him because he had walked out on the mother temporarily in about 2003 to 2004, when he left without leaving any form of contact and went to live with a barmaid with whom he had been having an affair. That caused great distress, apparently, to the mother. The allegation was that RH as a consequence was willing to make a whole series of false allegations and to persuade HH to do likewise in order to exact her revenge.
6. It was suggested in cross-examination that she had made various threats to the appellant, for example that she would "get him back" or "get him" for this. In addition, it was contended that she did not want the appellant to be reconciled with her mother upon his release from Brixton Prison. He had served a seven-year sentence for possession with intent to supply class A drugs, namely ecstasy. The defence pointed out that the timing of the complaint to the police was more than coincidental as it occurred the day before he was due to be released from Brixton Prison. But it necessarily followed that in advancing this particular defence, the fact that the appellant had been convicted for supplying drugs was of course bound to be before the jury.
7. The allegation of collusion between the two girls was then raised in evidence-in-chief when the appellant was giving his evidence. It seems that at that stage an application was formally made (it may have been lodged earlier) for the bad character of the appellant to be put before the jury. It was said that since he was alleging that RH had sought to persuade her sister to give false evidence, that was an attack on her character and his record should therefore be admitted in evidence.
8. The appellant had a number of convictions in addition to the supply of class A drugs to which we have made reference. The previous convictions were as follows: on 3 May 1977, taking a conveyance without authority, he received a fine; on 18 May 1978, having an offensive weapon, a 50-hour community service order; on 23 July 1982, an offence of robbery, having an imitation firearm with intent to commit an indictable offence and theft of a vehicle, he received 21 months' imprisonment; on 13 December 1984, ABH, 30 days' imprisonment; and on 12 February 1987, carrying a firearm with intent to commit an indictable offence and possessing an imitation firearm without a certificate, he received a total sentence of nine and a half years' imprisonment.
9. The details of these offences and the particular circumstances under which he was convicted were not known.
10. The learned judge considered the application. He indicated that if the appellant's case had simply been that these complainants were telling lies, then he would not have allowed this evidence to go in. But the appellant's case went much further than that. He was attacking the character of RH in particular, and in those circumstances the judge considered that it was right that his own character should be before the jury. Accordingly, he permitted the jury to hear of the whole of this record, and not merely the drugs offence which they already knew.
11. The evidence was admitted under gateway (g) of the Criminal Justice Act, section 101, which applies where the defendant makes an attack on another person's character. The judge considered a submission to the effect that it would be unfair to allow the evidence in, but he rejected that. He did not think it would have such an adverse effect on the fairness of the proceedings that it should not be admitted. He concluded, in essence, that given the defendant had attacked the character of the witnesses, the jury were entitled to know about his character.
12. The relevant law.
13. Before considering the submissions, we turn to briefly consider the legislative provisions. The definition of "bad character" is contained in section 98 of the 2003 Act. It is as follows:

"References in this Chapter to evidence of a person's "bad character" are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which—

(a) has to do with the alleged facts of the offence with which the defendant is charged..."

14. Section 101 then sets out the circumstances in which a defendant's bad character is admissible in evidence. The relevant provision here, as we said, is (g), which is as follows:

"(1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if—

...

(g) the defendant has made an attack on another person's character."

15. Section 106 then defines what is meant by an attack on another person's character. Sub-section (1)(a) provides:

"(1) For the purposes of section 101(1)(g) a defendant makes an attack on another person's character if—

(a) he adduces evidence attacking the other person's character.

..."

Sub-section 2 provides:

"(2) In subsection (1) "evidence attacking the other person's character" means evidence to the effect that the other person—

(a) has committed an offence (whether a different offence from the one with which the defendant is charged or the same one), or

(b) has behaved, or is disposed to behave, in a reprehensible way..."

16. We pause to note that the allegation that these alleged indecent assaults had been made up and that RH was seeking to persuade HH to give false evidence would fall under both limbs of sub-section (2).
17. The fact that the evidence is in principle admissible does not, however, mean that it automatically is admitted in evidence. Section 101(3) provides as follows:

"(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."

18. There is therefore, as defence counsel properly emphasises, a mandatory obligation on the court to exclude evidence essentially if it would be unfair to admit it.
19. Sub-section (4) then specifically requires the court, when deciding whether or not to exclude evidence, to "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".
20. There is one final issue of law to which we should make reference. In the case of Hanson [2005] EWCA Crim 824; 2 Cr App R 21, Rose LJ (Vice-President), giving the judgment of the court, said this at paragraph 15:

"15. If a judge has directed himself or herself correctly, this Court will be very slow to interfere with a ruling either as to admissibility or as to the consequences of noncompliance with the regulations for the giving of notice of intention to rely on bad character evidence. It will not interfere unless the judge's judgment as to the capacity of prior events to establish propensity is plainly wrong, or discretion has been exercised unreasonably in the Wednesbury sense ..."

21. The grounds of appeal
22. Mr Volz, counsel for the appellant, submits that, in this case, the judge was wrong to admit these offences and to allow them to go before the jury. Their only purpose was to cause prejudice to the defendant and to cast aspersions on his character in the most general way. The convictions did not begin to demonstrate any propensity to commit any of the criminal offences with which he was charged since they did not relate to any sexual offences of any kind. Furthermore, they were not directly relevant to the issue of credibility. Counsel referred to the analysis by Rose LJ in the Hanson case, to which we made reference, when he analysed what is meant by a propensity for untruthfulness. Rose LJ said this (para 13):

" As to propensity to untruthfulness, this, as it seems to us, is not the same as propensity to dishonesty. It is to be assumed, bearing in mind the frequency with which the words honest and dishonest appear in the criminal law, that Parliament deliberately chose the word "untruthful" to convey a different meaning, reflecting a defendant's account of his behaviour, or lies told when committing an offence. Previous convictions, whether for offences of dishonesty or otherwise, are therefore only likely to be capable of showing a propensity to be untruthful where, in the present case, truthfulness is an issue and, in the earlier case, either there was a plea of not guilty and the defendant gave an account, on arrest, in interview, or in evidence, which the jury must have disbelieved, or the way in which the offence was committed shows a propensity for untruthfulness, for example by the making of false representations."

23. Counsel also relies upon a later passage in the same judgment, paragraph 18, where Rose LJ said this:

" ... in any case in which evidence of bad character is admitted to show propensity, whether to commit offences or to be untruthful the judge in summing-up should warn the jury clearly against placing undue reliance on previous convictions. Evidence of bad character cannot be used simply to bolster a weak case, or to prejudice the minds of a jury against a defendant."

24. Counsel submits that the admission of these convictions, given that they demonstrated neither propensity to commit the offence nor untruthfulness in the way described by Rose LJ, merely achieved the illegitimate objective of poisoning the jury's mind against the defendant. They were of no real purpose save to prejudice the minds of the jury. None of the convictions related to crimes of dishonesty, nor was it known whether any of the convictions were following non-guilty pleas when the defendant gave evidence, in which case it may be inferred that he was telling lies to the jury. Had that been the case, it might have warranted the admission of such convictions, but no details of these offences were provided.
25. Counsel also relied upon a decision of this court in the case of Chrysostomou [2010] EWCA Crim 1403. In that case the appellant was convicted of a number of offences, including possessing an imitation firearm with intent to cause fear of violence and harassment. He had suggested that the complainant was somebody who took class A drugs. The Crown in response wished to adduce in evidence four texts which were found on his telephone which suggested that he was capable of supplying class A drugs.
26. The evidence was admitted by the judge under gateway (g), and this court concluded that it ought not to have been admitted and that the conviction was unsafe and should be quashed. Aikens LJ, giving the judgment of the court, said this at paragraph 40:

"... if it was not the Crown's case that the appellant had sold drugs to ER, what probative value did the texts have? At the most, all the texts could do would be to act as evidence which was consistent with the appellant being capable of supplying drugs to others. What relevance did that have to the charges against him? In our view, the texts had no relevance other than to blacken the general character of the appellant in the eyes of the jury and, therefore, dent the credibility of his evidence generally."

Counsel submits that that is in essence the position here.

27. In our judgment, the appellant's analysis is, with respect, flawed because it fails to distinguish between the approach which these courts have adopted towards applications to admit evidence under section 101(1)(d), as was the position in Hanson, and where the gateway under which the evidence is admissible is sub-section (g). In the former case, the principles enunciated by Rose LJ in Hanson must be applied. If the prosecution wishes to adduce bad character evidence going to credit under that provision, it must demonstrate a propensity to untruthfulness in one of the ways identified in the judgment of Rose LJ. Indeed, section 103 of the 2003 Act, which defines what constitutes a "matter in issue between the defendant and the prosecution" under gateway (d) states in terms that it includes "a question whether the defendant has a propensity to be untruthful ..." There is no such provision in relation to gateway (g).
28. Accordingly, the same restrictive approach to admissibility under gateway (g), where credibility is in issue, has not been adopted. The underlying principle is, to use the language of Singleton J giving the judgment of the Court of Appeal (Criminal Division) in Jenkins (1945) 31 Cr App R 1,15 in a passage approved by the House of Lords in Selvey v DPP [1970] AC 304 that:

"... if the credit of the prosecutor or his witnesses has been attacked, it is only fair that the jury should have before them material on which they can form their judgement whether the accused person is any more worthy to be believed than those he has attacked. If a defendant is asking the jury to have regard to a witness's character when assessing that witness's evidence, so they should be entitled to consider his character when assessing his evidence."

29. Although the character is adduced initially for the purpose of allowing the jury to determine whether the particular attack is true, it will inevitably affect the jury's assessment of a defendant's credibility as a whole. The authorities demonstrate that under paragraph (g) all convictions are potentially relevant to assist the jury to assess the character of the accused, and it is not necessary, or at least not generally so, for detailed facts about the nature and circumstances of those convictions to be put before the jury. That is only likely to be required where it is necessary to demonstrate a propensity for untruthfulness in paragraph (g) cases.
30. The rationale for adopting this wider principle was succinctly expressed by the Vice-President, Hughes LJ, in the case of Singh [2007] EWCA Crim 2140, where he said that the rationale for the gateway is:

"... the obverse of the reason why a defendant is entitled to plead his own good character in support of his claim that he should be believed. The reason why he is entitled to do that is because ordinary human experience is that people of proven respectability and good character are, other things being equal, more worthy of belief than those who are not. Conversely, persons of bad character may of course tell the truth and often do, but it is ordinary human experience that their word may be worth less than that of those who have led exemplary lives."

31. In Singh itself the defendant was alleged to have robbed the complainant. He alleged that the complainant was on hard drugs, and that in fact it was an unidentified third party who had been responsible for the offence. The defendant had a record for such offences as assault and criminal damage. He submitted that it would not assist the jury to have that evidence before the jury; it did not go specifically to dishonesty. The court rejected that submission, Hughes LJ observing that the information would assist the jury to judge the complainant's credibility against that of the accused.
32. There have been a number of other cases where this court has adopted the same approach to section 101(1)(g)cases, including George [2006] EWCA Crim 1652, Bahanda [2007] EWCA Crim 2929, and the case of Lamaletie and Royce [2008] EWCA Crim 314. In Lamatelie two defendants were tried for inflicting grievous bodily harm on a taxi driver. They said that he had attacked them and they were merely seeking to protect themselves. The prosecution sought to have their bad character put before the jury. They had numerous convictions for violence. The court held that the evidence was admissible. In fact, the judge in that case directed the jury to the fact that the evidence of bad character went not to propensity, but only to the question of their credibility.(In fact the jury could it seems have relied on the evidence for propensity too since once evidence is admitted, it can be used for any purpose to which it is relevant: see R v Highton [2005] EWCA Crim 1985; [2006]1 Cr App R 7.) The significance of the case here is that the fact that the convictions did not fall within the Hanson category, if I can so describe it, did not prevent the material being adduced before the jury.
33. It follows that, in our view, the wider observations of the court in Chrysostomou, at least if taken out of the context of the facts of that particular case, do not properly reflect the test which this court has applied when dealing with applications to adduce evidence under paragraph (g). It does not appear that any of the authorities we have cited was referred to the court. A judge when considering gateway (g) can admit evidence which tends in a general sense to damage the character of the defendant in order to allow the jury to be able to assess the respective merits of the accounts given by a complainant and the defendant.
34. It follows therefore that in our judgment it is not a justified criticism of the judge's exercise of discretion that the offences do not demonstrate a propensity for untruthfulness in the manner envisaged in Hanson.
35. The position under the current law in this respect is in fact just as it was under the Criminal Evidence Act, as this court noted in Hearne [2009] EWCA Crim 103.
36. The second line of attack on the judge's decision is that, even if the evidence was, in principle, admissible, it was not appropriate to admit it in the circumstances of this case. Its prejudicial effect is such that it rendered it unfair for the judge to admit it.
37. In particular, Mr Volz focused on the age of these convictions. The last of them was committed in 1987, over 20 years before these offences were committed. He relied on the case of Dhooper [2008] EWCA Crim 2892, where the defendant was convicted of manslaughter and the judge at trial permitted the prosecution to adduce evidence under gateway (d) of a previous conviction for manslaughter recorded in 1994. The prosecution wished to rely on the similarity of the two attacks. The Court of Appeal, in the circumstances of that case, held that the conviction was too old. The judge had failed to have regard to the age of the conviction. Had he done so, the court considered that the proper exercise of discretion was to exclude this evidence, and the conviction was overturned.
38. Dhooper, it seems to us, is far removed from this case. First, it fell under gateway (d), not this gateway, and it was concerned with propensity to commit the offence rather than credibility.
39. In this case, the jury already knew about the first offence. That was relatively recent. In our judgment, it was perfectly proper for the judge to consider that, given the fundamental nature of this attack on the complainant RH, the jury were entitled to know the whole of this appellant's character. We can see that where the only offences are historic offences there may well be circumstances where the court will take the view that it is not fair to rely upon them as fairly reflecting the defendant's character as it is at the time of trial. In those circumstances it might be unfair to admit it.
40. Again, if these old convictions demonstrate a propensity to commit the offence and are sought to be adduced for the purpose of going to general credit, then it may be highly prejudicial and unfair to admit them. But that was not the position here. In our judgment, the judge was entitled to allow the jury to see the full range of the defendant's offending, in particular given that the admitted drugs offence - a recent one - was already before the jury. We suspect that, save perhaps for the robbery count, these historic convictions would in any event have been of little moment as far as the jury were concerned.
41. We have to ask ourselves, as we have indicated, whether it was Wednesbury unreasonable for the judge to act as he did. We think he applied the proper principles and came to a judgment he was perfectly entitled to reach.
42. We turn to the final ground, which is directed at the terms of the summing-up. This was as follows. The judge first reminded the jury that they knew about the drugs offence because it was a necessary part of the history of events. He then told them that there was no history of sexual offences at any stage in the antecedents, and then he said this:

"The fact that he has previous convictions for other offences patently does nothing to prove that he must have committed this offence. Just the one simply does not follow from the other. Nor does it follow that a man who has a criminal record cannot tell the truth. He may have a criminal record and may perfectly well be telling the truth when he gives evidence in this case. Well, again, the one does not exclude the other in any sense.

The reason that you have heard about the whole of his criminal record is that his defence, when it was put forward, did not stop at saying to each of the girls, "You are not telling the truth about this". It went further. It was suggested, you remember ... that once [RH] had decided to tell lies about what happened to her she then went further and spoke to her sister and successfully persuaded her sister, in respect of whom equally nothing had happened, to tell a completely fresh set of lies about what had happened to her."

43. He then went on to say that, in the circumstances, it was right that the allegation made against the children should be balanced by revealing the bad character of the defendant.
44. The principal complaint is that the judge did not in terms direct the jury that they should not convict on the basis of these convictions alone. In our judgment, that is in effect what he has done by reminding the jury that none of these offences were sexual offences and by telling them that patently they did not show that he had committed these particular offences for which he was charged. We think no jury, in the light of his direction, could possibly have thought it appropriate to infer guilt merely as a result of the criminal record.
45. The judge did not in terms direct the jury that they could bear in mind these convictions when assessing the appellant's credibility, but it seems to us plain that that was the essence of the direction. In any event, the failure to make any such direction did not prejudice this defendant, in our view. We are satisfied that this summing-up was adequate and that the convictions are not unsafe, and therefore the appeal is dismissed.