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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG v Downey and Skinner (Royal Court : Sentencing (Criminal)) [2025] JRC 079 (24 March 2025) URL: https://www.bailii.org/je/cases/UR/2025/2025_079.html Cite as: [2025] JRC 79, [2025] JRC 079 |
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Before : |
R. J. MacRae, Esq., Deputy Bailiff, sitting alone |
The Attorney General
-v-
Sean Downey
Kenneth Skinner
P. Lee, Esq., Crown Advocate.
Advocate G. F. Herold-Howes for Mr Downey.
Advocate O. A. Blakeley for Mr. Skinner.
JUDGMENT
THE DEPUTY BAILIFF:
1. On 10 February 2025, I gave rulings on the Crown's application to adduce bad character evidence in relation to the Defendants in this case. I now give reasons for those decisions.
2. The Defendants are jointly charged with a grave and criminal assault upon the Complainant, an adult male aged 61, which allegedly took place in the vicinity of the Oxford Public House on 6 October 2023.
3. In brief, the alleged circumstances are that Downey, who was 22 years old at the time, and Skinner, who was 21 years at the time, are alleged to have jointly assaulted the Complainant. The Complainant arrived at the public house in question in the afternoon of 6 October, a Friday. Skinner came to the public house at 6pm. The Complainant knew Skinner. Skinner argued with a third party and was told to leave by the publican. Skinner was aggressive and the Complainant also told Skinner to leave. Skinner then contacted Downey via Facebook Messenger and, some time after 7pm, Skinner and Downey returned to the public house. The Complainant felt that Downey wanted to cause trouble as his demeanour was aggressive. Downey and Skinner left the public house, and the Complainant stepped outside in order to ensure they did not return. Downey punched the Complainant once in the face. The Complainant punched or grabbed Downey in self-defence. Skinner then punched the Complainant to the face which knocked him unconscious and, whilst the Complainant was on the ground, Downey kicked him in the torso. Much of the alleged offence is caught on mobile telephone camera video recorders which I have not seen. Downey was arrested nearby; Skinner having left the area. Skinner's left trainer was recovered at the scene as it had come off during the alleged assault.
4. Skinner was arrested at home at approximately 10pm. He was covered in blood, and he had injured his left hand. He appeared to be intoxicated. Both Skinner and Downey were aggressive on arrest.
5. The Complainant suffered wounds to his scalp, face, head and fractures to his right fibula and left ribs. His injuries were consistent with being punched to the left side of his face and then falling and hitting the ground.
6. Downey initially said that he was not involved in the incident but now claims he was acting in self-defence. Skinner made no comment in police interview but according to his defence case statement he was acting in self-defence. Skinner accepts he was ejected from the public house but said that was a consequence of a misunderstanding. Outside the public house, he was set upon by three people which did not include the Complainant. He later met up with Downey. Downey went into the public house while Skinner remained outside. Skinner saw Downey and the Complainant come out of the public house with the Complainant punching and kicking Downey. Skinner was concerned about the safety of Downey and intervened in order to protect him by punching the Complainant. He fell to the ground -� Skinner then walked away. Downey says in his defence case statement that the Complainant charged towards him outside the public house and began kicking and hitting him, whereupon Skinner intervened and punched the Complainant once, following which Downey kicked the Complainant in the body with a "low degree of force".
7. Before turning to the particulars of the previous convictions and, in one case, a caution which the Crown seek to admit, we turn to the statutory provisions.
8. The Crown relies upon Article 82F of the Police Procedures and Criminal Evidence (Jersey) Law 2003 ("the Law").
9. As to Article 82(F), the evidence of a defendant's bad character is admissible if it is relevant to an important matter in issue between the defendant and the prosecution which includes:
As to the interpretation of Article 82(F)(3) -� see paragraphs 26 to 30 of the Court's judgment in AG v PMB [2020] JRC 248.
10. When considering the Crown's application under Article 82F, it is important to bear in mind the provisions of Article 82E, in particular the following:
11. The matters in issue, which the Crown identified for the purpose of Article 82F in this case, were the respective defendant's propensity to commit offences of violence such as the offence charged and the defences of self-defence/defence of another revealed by the defence case statements. The Crown said that the evidence it wished to adduce was relevant to either or both of these issues.
12. Both counsel draw my attention to the helpful decision of Commissioner Clyde-Smith in the case of AG v Murphy [2019] JRC 233, in which the Commissioner gave a useful summary of a decision of the English Court of Appeal in R v Hanson at paragraphs 19 to 29 of his judgment:
13. With these principles in mind, I turn to the evidence which the Crown say is admissible in relation to each Defendant.
14. The Crown applies to adduce the fact and circumstances of the following convictions -
(i) Grave and criminal assault, resisting or obstructing police and possession of an offensive weapon on 28 December 2017 (PNC entry 3) ("2017 Conviction"). Downey was abusive towards a male in the bus station and threatened to harm him. The male went outside to prevent matters escalating and Downey hit him in the left side of his face. The male called the police, and Downey picked up a metal pole and tried to run at the male. Members of the public had to intervene and took the pole from Downey. He picked it up on two further occasions and had to be stopped again. Downey was 16 years old at the time.
(ii) Being disorderly on licensed premises on 20 February 2018 (PNC entry 4). This incident involved Downey and his friend being aggressive at the bowling alley. Downey broke a pool cue and smashed it across the table causing it to break in half. He then threw it across the arcade. He was asked to leave and wait outside, but he came back in and became threatening towards a female member of staff. He refused to leave and sat down by the lanes. He said that he was going to smash a bowling ball across a female's face. Downey was 16 years old.
15. The facts and circumstances of these two matters are not disputed. It can be seen that both offences were committed when Downey was 16 years old -� approximately between five and six years before the alleged offence. It is not the case that Downey has not offended in the interim. Far from it. He has been convicted of serious offences, including two offences of robbery, for which he was sentenced to two years youth detention by the Royal Court in February 2019; an offence of attempted robbery for which he was sentenced to three years youth detention by the Royal Court in January 2022; and a further and more recent offence of robbery committed in January 2024 where he recently pleaded guilty but is yet to be sentenced.
16. These were also offences of violence, but the Crown has, notwithstanding the indication in their application that they would seek to adduce the facts and circumstances of those robberies, elected not to do so on the footing that they take the view that it would be unfair to adduce the evidence of those convictions. That of course is a matter for the Crown.
17. Both the offences which the Crown say ought to be admitted involved violent behaviour in a public place. The offence of being disorderly on licensed premises involved Downey acting aggressively with another. The Crown say that these previous matters indicate that Downey has been prepared to use violence in circumstances where there was no question of self-defence. In my judgment, these matters do establish a propensity to commit an offence of the kind charged and such propensity makes it more likely that Downey committed the offence charged. In reaching these conclusions, I have considered the matters referred to by Commissioner Clyde-Smith and extracted from the decision of the English Court of Appeal in Hanson. This is not material adduced to support a weak case -� the use of violence is captured on video footage which is apparently not disputed by the Defendants.
18. The defence rely on the gap of six years between the commission of these two offences and the alleged offence on the indictment, arguing that the offence committed as a youth demonstrates no propensity to commit such offences as an adult. It is argued on behalf of Downey that admission of such material would have such an adverse effect on the fairness of the proceedings that the Court ought not to admit it. A similar submission was made pursuant to Article 76 of the Law.
19. I have considered with care the Court's exclusionary powers both under Article 82E(2) and Article 76. However, I have noted that there are a number of other Jersey cases (for example, AG v Richomme [2021] JRC 193 and AG v Goodchild [2023] JRC 176) showing that it is not unusual for the Court to admit the evidence of offences committed many years before the offence which the trial court will consider, e.g. ten years in respect of one offence in Goodchild and eight years in the case of AG v PMB [2020] JRC 248.
20. Owing to the defence admission as to the facts, the trial will not be diverted into an investigation of those matters and I do not think the fairness of the proceedings will be so adversely affected that the evidence in relation to both matters should not be admitted. As to Article 76, plainly the evidence is prejudicial, but it is also probative, and in the context of this case the material the Crown seeks to adduce is not unfairly prejudicial having regard to its probative value. The admission of this evidence would not so unfairly affect the fairness of the proceedings that the Court ought not to admit it.
21. The application in the matters which gave rise to the application in the case of Skinner, who was 21 at the date of the alleged offence, falls into two categories.
22. First, the early convictions of which there were several in respect of offences committed when Skinner was 13 (one offence) and 14. The offence committed when Skinner was 13 was a grave and criminal assault with the Defendant being part of a group who assaulted a male in a car park by punching him to the head, with the Complainant being grabbed by the throat, punched and head butted. The remaining five offences committed when Skinner was 14 (which were dealt with in three separate subsequent Court appearances) were four offences of common assault and one offence of being disorderly on licensed premises. Perhaps the most serious involved Skinner punching the Complainant in the face and kicking him whilst at a bus shelter. The victim was not known to Skinner, and Skinner took offence by the victim looking at him.
23. The reason why these offences are in a different category from the later two offences (which I will consider next) is a consequence of Article 82E(4) which provides:
24. This is a provision which does not appear to have been considered by the Royal Court since the amendment to the Law which introduced the bad character provisions. There is brief reference to this provision in the case of AG v Murphy [2019] JRC 233, where Commissioner Clyde-Smith said when admitting a number of convictions, including evidence in relation to four convictions when the defendant was aged sixteen (some thirteen years before the offence on the indictment), that he rejected the assertion that convictions committed whilst the defendant was under twenty-one should be treated differently because Article 82E(4) "makes it clear that it is offences committed whilst under the age of fifteen that require special consideration".
25. Commissioner Clyde-Smith said in relation to Article 82E(4) (see paragraph 39 of the judgment):
26. It is frequently the case that when considering the bad character provisions of the Law, recourse is had to decisions of the English Court of Appeal. Such decisions may not be of utility in this instance as this is one of the relatively rare occasions when the Jersey bad character provisions diverge from of the equivalent English law, namely (for these purposes) section 108(2) of the Criminal Justice Act 2003 which provides that:
27. It can immediately be seen that there is a different category of offences affected - offences committed whilst under the age of fifteen for the purpose of the Jersey provision which contrasts with evidence of convictions for an offence under the age of fourteen under the English section. Further, such matters are only to be admitted in England, when the interests of justice "require" the evidence to be admissible and when both the original offence and the offence charged are offences triable only on indictment. Such a category of offence is not known to Jersey law.
28. No authority was placed before me in which a Court has considered the meaning of "the Court is satisfied that the interests of justice require the evidence to be admissible" (my emphasis).
29. It is clear from the structure of Article 82E that whereas evidence of a defendant's bad character is prima facie to be admitted if it is admissible under any of the gateways provided in, inter alia, Articles 82F to 82I, in relation to this category of offences committed by children under the age of 15 there is a presumption that such material is not admissible unless the Court is satisfied that the interests of justice "require" it to be admissible. Without wishing to lay down any firm principles, it seems to me that there would perhaps need to be something about the seriousness of the offence or the circumstances of the offending which would have such an effect.
30. Although it might have been permissible to come to a different conclusion having regard to the nature of the offences committed when Skinner was 13 and 14, I was reluctant to hold that the interests of justice required those matters to be admissible and accordingly I declined to admit them.
31. This leaves the other conduct which is the subject of the bad character application in the case of Skinner. First, his conviction for an offence of common assault when he was aged 16, the circumstances being that Skinner spat at the complainant and then assaulted him by grabbing a chain around his neck and tightening it until it broke.
32. Secondly, in 2022, he received a caution for drunk and disorderly at the parish hall. The circumstances (which the defence indicated might not be accepted and may be the subject of further discussion between the parties) were that Skinner was involved in an altercation inside a wine bar. He was told to leave but came back and threatened a member of the door staff in the face and was abusive towards him. He then tried to punch the door staff member and two others. He was aggressive and appeared to be under the influence of alcohol. He was restrained by door staff until the police arrived. He was 20 when he was cautioned.
33. I accepted the Crown's argument - essentially for the same reasons as set out above in the case of Downey - that these matters establish a propensity to commit offences of the kind charged and that such propensity made it more likely that the Defendant committed the offence charged.
34. I considered with care whether it was unjust for the Crown to rely on the 2018 conviction, owing to the Defendant's age at the time and the period which had elapsed between that offence and the matter with which he is charged that, and again, essentially for the same reasons, I decided that it was not unfair to admit the evidence. I also reached a similar conclusion in relation to the Court's exclusionary discretion under Article 76. I found no reason to exclude the evidence of the 2022 caution.
35. I gave guidance to the parties as how best to approach the matters subject of the 2022 caution if they are in dispute. The Crown may need to prove the circumstances and, if possible, it is preferable for such matters to be the subject of admission in order to ensure that the jury do not become unreasonably diverted into an investigation of matters not charged on the indictment.