Neutral Citation Number:
[2005] EWCA Crim 2826
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT INNER LONDON
HHJ Van Der Werff and a jury [renda]
ON APPEAL FROM CROWN COURT AT SHEFFIELD
HHJ KEEN AND A JURY [BALL]
ON APPEAL FROM CROWN COURT AT BURNLEY
MR RECORDER WRIGHT AND A JURY [AKRAM]
ON APPEAL FROM CROWN COURT AT CARDIFF
HHJ GRIFFITH-WILLIAMS QC RECORDER OF CARDIFF AND A JURY [OSBOURNE]
ON APPEAL FROM CROWN COURT AT ISLEWORTH
MS RECORDER GUPTA AND A JURY [RAZAQ AND RAZAQ]
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
10th November 2005
Before :
PRESIDENT OF THE QUEEN'S BENCH DIVISION
(THE RT HON. SIR IGOR JUDGE)
THE HON MR JUSTICE BEAN
and
THE RT HON. SIR CHARLES MANTELL
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Between:
Case No: 200503106D1
R
- v -
Raymond Renda
And between:
Case No: 200502620D1
R
- v -
Nathan Ball
And between:
Case No: 200502489D4
R
- v -
Adil Akram
And between:
Case No: 200502364B1
R
- v -
Lee Osbourne
And between:
Case No: 200501987B3
R
- v -
Ajaz Razaq and Abdul Razaq
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Hearing date: 20th October 2005
- - - - - - - - - - - - - - - - - - - - -
Judgment Approved by the court
for handing down
(subject to editorial corrections)
Miss A. Felix
for Renda
Miss G. Ong
for the Crown in Renda
J. Hillis
for Ball
R. Newbury
for the Crown in Ball
Mr W.N. Goldstein
for Akram
Mr M. Lavery
for the Crown in Akram
Mr L. Jones
for Osbourne
Miss M. Parry-Evans
for the Crown in Osbourne
R. Cifonelli
for Ajaz Razaq
J. Stone
for the Abdul Razaq
R. Whittaker
for the Crown in Razaq & Razaq
PRESIDENT OF THE QUEEN'S BENCH DIVISION:
General
1.
These six appeals were listed together, and heard consecutively over two days. Each required consideration of one or more practical problems arising from the “bad character” provisions in Part II, Chapter 1, of the
Criminal Justice Act 2003
.
2.
It will not be necessary or useful for us to set out these provisions in the judgment. In coming to our conclusions, in each case we had an overall view of the structure of this chapter together with the specific legislation said to apply directly to the point in issue. In addition, we shall not spell out all the detailed evidence in support of either sides’ case. We only focus attention on those parts of the evidence relevant to our decisions.
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.
4.
Finally, even if it is positively established that there has been an incorrect ruling or misdirection by the trial judge, it should be remembered that this Court is required to analyse its impact (if any) on the safety of any subsequent conviction. It does not follow from any proved error that the conviction will be quashed.
5.
In the context of these appeals, although other points arose from time to time, it would be useful to set out the provisions which are of direct relevance in each individual appeal.
6.
Renda
(a) Creation of a false impression by a defendant
(s 101(1)(f) and s 105(1))
(b) Withdrawal of a false impression
(s 105(3))
(c) Reprehensible behaviour other than the commission of an offence
(s 112(1))
(d) Discharge of the jury for “contamination”
(s 107)
7.
Ball
Evidence “given” of an imputation made during questioning under caution
(s 101(1)(g) and s 106(1)(c))
8.
Akram
Complainant’s bad character
(s 100)
9.
Osbourne
(a) Bad character of complainant and defendant’s witness
(s100)
(b) Duty to give reasons
(s 110(1))
10.
Razaq and Razaq
Complainant’s bad character and limits to cross-examination
(s 100)
Renda
11.
This is an appeal by Raymond Renda against a conviction for attempted robbery on 13th May 2005 at the Inner London Crown Court before HHJ Van Der Werff and a jury.
12.
At the date of the hearing of the appeal he had not been sentenced. He appeals with leave of the single judge.
13.
The facts are straightforward. At about 2 am on 10th November 2003, the complainant, Robert Flint, was walking home along Mile End Road in Stepney Green London. At about the same time the appellant left a nearby public house, and was walking along Mile End Road in the opposite direction. Their paths crossed, and the appellant stood beside Mr Flint and asked him for money. When Mr Flint responded that he did not have any, and carried on walking, the appellant then fell in to walk beside him, continually pressing him for money. The appellant put his right hand into his jacket pocket saying, “What is this I have got in my pocket?”. Hardly surprisingly, Mr Flint began to feel frightened, and the appellant continued to follow him, ordering him to turn into Whitehorse Lane, which, as it happened, was the street in which Mr Flint lived. As Mr Flint walked up the path to his flat the appellant followed him, still asking him for money, and, under an archway, seized hold of him by the neck, swinging him round and pushing him against the gate, saying “Give me your money now”. Mr Flint pushed the appellant away, and into a hedge, and ran to his front door, but before he had time to open the door, the appellant returned and pushed him against the wall with his hand on his neck.
14.
Two police officers in a passing police car saw what they believed to be a fight, and stopped, and separated the combatants. Mr Flint immediately complained that the appellant had followed him home and tried to rob him. The appellant denied that he had done anything at all, asserting that he was on his way home from the pub and that the allegation must be some sort of joke. When interviewed the appellant declined to answer any questions, but submitted a prepared statement in which he denied that he had attempted to rob the complainant: rather, after making a false accusation, the complainant had attacked him.
15.
The issue at trial was therefore straightforward. The jury had to decide whether any offence at all had been committed, and their decision largely depended on their judgment of Mr Flint’s veracity, and, if he gave evidence, the veracity of the appellant.
16.
The issues in this appeal arise from the appellant’s evidence. He sought to enhance his credibility by asserting that he had been a serving soldier in HM Armed Forces, who had, while so employed, sustained a serious head injury, which had resulted in long-term brain damage. He said that at the date of his arrest he was in regular employment as a security guard.
17.
The Crown was in possession of evidence to show that although it was true that the appellant had served in the armed forces, his serious head injury had not been sustained while he was in the course of his duties, but while he was on holiday, driving his own vehicle. Although it was also true that he had been employed in a security capacity, checking “passes”, this had been short-term employment only. He was no longer in gainful employment. If this evidence was correct, the appellant was seeking to convey a misleading impression about his life and history.
18.
The additional material available to the Crown included the defendant’s antecedent history and police computer print outs, and a report prepared by a psychiatrist instructed by the Crown. This material showed not only that there had been a number of reported crimes of violence for which the appellant was alleged to have been responsible, but that on an earlier occasion, in July 2001, when he was found unfit to plead to a count of assault occasioning actual bodily harm, the jury was satisfied as a fact that the appellant had approached someone from behind and struck him about the head with a large wooden table leg. The case had been disposed of by way of an absolute discharge.
19.
Our attention was drawn to some earlier authorities, which considered the impact of s 1(3)(ii) of the Criminal Evidence Act 1898. However it is unnecessary to refer to them in this judgment. It is most unlikely to be useful to refer to authorities which were no more than factual examples of occasions when it was decided that an individual defendant had put his character in issue. For the purposes of s 101(1)(f) the question whether the defendant has given a “false impression” about himself, and whether there is evidence which may properly serve to correct such a false impression within s 105(1)(a) and (b) is fact-specific. In the present case the appellant was plainly seeking to convey that he was a man of positive good character.
20.
When the appellant was cross-examined he continued to maintain that he had been in regular employment as a security guard, and that he had not been dismissed from that employment. He did however concede that when he described himself as a security guard, his duties amounted to no more than checking passes. He agreed that he had not sustained his head injury during the course of his military duties as a soldier, but while he was on holiday in a car accident. In short, in cross-examination, he was forced to concede the truth.
21.
It was submitted that in these circumstances the appellant should be treated as having withdrawn or disassociated himself with any false assertion relating to the claim that he had sustained injury while in the course of his duties. Accordingly s 105(3) should apply, and it was therefore no longer appropriate to treat him as having given evidence which was “apt to give the … jury a false or misleading impression about” him. We do not agree. Our reason is simple. There is a significant difference between the defendant who makes a specific and positive decision to correct a false impression for which he is responsible, or to disassociate himself with false impressions conveyed by the assertions of others, and the defendant who in the process of cross-examination is obliged to concede that he has been misleading the jury. A concession extracted in cross-examination that the defendant was not telling the truth in part of his examination-in-chief will not normally amount to a withdrawal or disassociation from the original assertion for the purposes of s 105(3).
22.
The Crown sought leave to ask questions about this incident of violence. Judge Van Der Werff decided that it would not be prudent or right for the Crown to explore, through the appellant’s own testimony, the details of his psychiatric history, not least because the appellant himself might not be in a position to deal with it properly. He made a preliminary ruling that the Crown was entitled to ask questions about the appellant’s military service, the circumstances of the accident, and his subsequent employment. It was appropriate for the jury to understand that the appellant had been charged with assault occasioning actual bodily harm, and that although he was found unfit to plead, he was also found by the jury to have committed the physical act of assault. The case was disposed of by way of an absolute discharge.
23.
The judge was very concerned that the jury should not labour under a false impression about the appellant. He rejected a submission that the Crown should not be allowed to adduce the facts of the assault because proper notice had not been given. Counsel for the Crown submitted that these matters had arisen for consideration during the appellant’s evidence, so that it was impractical to have given any notice. The judge ruled that the Crown could ask about the facts of the assault which were relevant to the issue of credibility.
24.
Before us it was argued that the judge’s rulings were wrong. An absolute discharge following a finding that the defendant was unfit to plead did not constitute a criminal conviction, nor did it constitute “reprehensible behaviour” amounting to misconduct for the purposes of the “bad character” provisions in Part II of the
Criminal Justice Act 2003
. We agree that the appellant was not “convicted” of a criminal offence. We also accept that as a matter of ordinary language, the word “reprehensible” carries with it some element of culpability or blameworthiness. What however we are unable to accept is the mere fact that the appellant was found unfit to plead some 18 months after an apparent incident of gratuitous violence has occurred, of itself, connotes that at the time of the offence his mental acuity was so altered as to extinguish any element of culpability when the table leg was used in such a violent fashion. On the face of it, this was reprehensible behaviour, and there was no evidence before Judge Van Der Werff to suggest otherwise.
25.
Accordingly, this material was available to help refute the false impression as of positive good character given by the appellant in his evidence-in-chief. Recognising as the judge did, that this was not an entirely straightforward issue, he was at pains to explain to the jury the precise status of the earlier court proceedings, and in particular, how the process encompassed in the phrase “not fit to plead” works, and what it involves, and that the appellant was not convicted, and indeed had no convictions. He also explained that its relevance in this particular case was confined to helping the jury decide whether the appellant had tried to present himself as a “rather better man” than he actually was, and whether he was in truth, as the jury might consider he was seeking to convey, deserving of sympathy. If they were sure that he had tried to give a false impression about himself, then the jury was entitled to see how it affected the way in which they should approach the evidence about events on 10th November 2003. All that was fairly done.
26.
The remaining point arising in this appeal arises from a submission that the judge should have stopped the case because the evidence had become contaminated. The point arose in this way. When the issue of the table leg incident was first raised, counsel for the appellant conceded that the finding by the jury amounted to a conviction. After further research she concluded, rightly, that it was not. Accordingly she sought the discharge of the jury on the basis that the evidence before it was “contaminated” for the purposes of s 107.
27.
We can deal briefly with this submission. For the reasons we have given, the evidence was not in fact “contaminated”. We are however concerned to ensure that s 107 should not be misused. There will, of course, be occasions when counsel is justified in submitting that a conviction would be unsafe because evidence admitted under s 101(1)(c)-(g) proved to be contaminated. That however does not provide any justification for a submission which, in truth, is no more than a reiteration of the arguments advanced by counsel against the admission of this evidence. S 107 deals with a particular situation where the evidence of “bad character” has been admitted and proves to be false or misleading in the circumstances described in s 107(5). Unless the case falls squarely within that statutory provision, the Court of Appeal Criminal Division is the appropriate court in which the correctness of the judge’s decision should be questioned.
28.
For these reasons, this appeal will be dismissed.
Ball
29.
This is an appeal by Nathan Ball against his conviction on two counts of rape on 18th April 2005 in the Crown Court at Sheffield before HHJ Keen QC and a jury. The two counts related to incidents of penetration of the mouth and sexual intercourse with the same woman on 21st January 2005.
30.
This unpleasant incident needs very little narrative explanation. Prior to 21st January 2005 the complainant and the appellant had been involved in a very casual sexual relationship. Consensual sexual intercourse had taken place after heavy alcohol consumption in circumstances devoid of any hint of affection.
31.
On 21st January the pair were drinking in the same public house. There was evidence of some very unpleasant language by the appellant generally and at least in part insulting of the complainant. In any event, they left the premises together. They started to make their way to the rear of a nearby supermarket, and began intimate touching of each other. In the course of this foreplay the complainant fell over and hurt her knee. The appellant was unsympathetic and became aggressive. According to the complainant, she was no longer willing to have sexual intercourse with him, and she made her position absolutely clear. Nevertheless he forced her to take his penis in her mouth, and then proceeded to sexual intercourse. When it was over she reported that the appellant had said to her, “What are you going to do now, go off and get me done for rape? Look at you, you’re nowt but a slag”.
32.
The appellant’s case was that this sexual activity took place with the complainant’s consent. She appeared to be entirely happy afterwards, but she may have become aggrieved because she thought or understood from what people were saying that the appellant was using her. Perhaps she recollected or heard about the appellant’s earlier disparaging remarks about her in the public house, and this provoked her to make a false allegation of rape. In short, the complainant was lying, motivated by a wish for vengeance.
33.
No further summary of the conflicting and mutually contradictory accounts of the incident is needed. We must however refer to the contents of the interviews between the appellant and the police. The appellant told the police that most of the men in the local public house had had sexual intercourse with the complainant. He criticised the complainant’s sexual promiscuity in very disparaging terms. She was easy. “She’s a bag really, you know what I mean, a slag”. This echoed the comment attributed to the appellant by the complainant after sexual intercourse.
34.
When the appellant gave evidence, the Crown submitted that his bad character arising from previous convictions and breaches of court orders, should properly be deployed in cross-examination. The judge rejected a number of different bases advanced by the prosecution, including in particular, that he should admit this evidence simply on the basis of the direct attack on the complainant’s credibility based on the appellant’s instructions that the allegations of rape were fabricated. If we may say so, the judge’s approach to this part of the case seems to have been impeccable.
35.
However, the judge was troubled by the attack made against the complainant by the defendant in the course of the police interviews. In effect, the appellant asserted that the complainant had behaved or was disposed to behave in a reprehensible way. Accordingly an attack had been made on the complainant’s character for the purposes of s 101(1)(g), as explained and expanded in s 106, and in particular s 106(1)(c). Evidence was given “of an imputation about the other person made by the defendant – (i) on being questioned under caution, before charge …”. The judge considered whether to exclude the evidence under s 101(1)(3) on the basis that its admission would have an adverse effect on the fairness of the proceedings. He concluded that cross-examination about the appellant’s bad character should be permitted.
36.
Although a number of minor matters were raised in argument, we need only address the complaint directed by Mr Hillis at the judge’s ruling that the appellant could be cross-examined about his previous convictions. No criticism is made of the way in which the judge dealt with these issues in his summing up. The complaint is directed at his ruling.
37.
Mr Hillis began his argument by submitting that a major difficulty in this case arose from the impact of
s 41
of the
Youth Justice and Criminal Evidence Act 1999
, which although restricting evidence or questions by the defence about a complainant’s sexual history, did not extend to the prosecution. We agree that this is a feature of
s 41
, but it does not advance the argument further. The appellant chose to make the observations reported by the police. If what he said was relevant and served to support the allegation of rape, this evidence was admissible, and for the purposes of s 106(1)(c) was indeed “given”. The answers by the appellant in his interview purported to be exculpatory in nature (there was no rape: it was consent) but were said by the Crown, with every justification, to provide evidence which indicated an attitude to the complainant which at least carried with it the implication that the appellant believed that she would have agreed to sexual intercourse with him, and any other man, at any time and in any circumstances, and that if and when she purported to be unwilling to have sexual intercourse, any such refusal should be disregarded as quite meaningless. In reality, therefore, and somewhat unusually, answers which might have been treated as exculpatory alone, and possibly not admissible on that basis, formed part of the prosecution case adduced by the Crown. The highlight, at its most stark, was the epithet, “slag”, used by the appellant in the interviews to describe the complainant which echoed what she claimed he had said to her after sexual intercourse had finished. The Crown also contended that the remark about rape attributed to him by the complainant was inconsistent with a genuine belief that she was consenting to what happened.
38.
In our judgment this evidence was properly before the jury as part of the prosecution case. It did not represent (and the judge would have been alert to any such danger) any sort of device to enable the Crown to make an application to put the appellant’s previous convictions before the jury. Once the evidence was properly given, within s 106(1)(c) the judge would have been entitled to exclude it as a matter of discretion. He was well aware of the need to exercise that discretion. No arguable basis for interfering with his decision has been shown.
39.
Accordingly this appeal is dismissed.
Akram
40.
This is an appeal against conviction and sentence by Adil Akram. On 18th March 2005 he was convicted of dangerous driving at Burnley Crown Court before Mr Recorder Wright and a jury. On 29th April 2005 he was sentenced to 18 months detention in a Young Offender Institution and disqualified from driving for 3 years and until an extended driving test was passed.
41.
The essential facts can be summarised very briefly. On 1st August 2004 Rokab Afzal was driving his car in Nelson, in Lancashire, carrying a passenger, Adnan Khan. They became rather concerned about a potential problem with the steering of the car, so Mr Afzal stopped and got out. While he was there he was approached by a man called Kais Anwar, and they exchanged some unpleasantries. Thereafter a red Peugeot car pulled up on the opposite side of the road, and Kais Anwar went to speak to the driver. After he had done so the red Peugeot revved its engine and drove at the complainant, knocking him over. Fortunately Mr Afzal was not seriously hurt, and he was able to get up and run away into a nearby school. The red Peugeot then drove away from the scene.
42.
The prosecution case was that the driver of the red Peugeot was the appellant, recognised both by Mr Afzal and his passenger Mr Khan. The defence case was that the identification was wrong. The appellant had spent the whole of the day, and at the relevant time was at his girlfriend’s house. His girlfriend gave evidence to the same effect.
43.
The appellant was aware of four specific areas of evidence with which it was proposed to test the evidence of Mr Afzal. The appellant and he had been friends for some time, but eventually a problem arose between them, the precise origins of which depended on which of them was explaining it. From the appellant’s point of view he asserted an earlier assault by the complainant in which the complainant counter-asserted that he was the victim. This was described as the “cricket bat incident”. There was also a falling out over a car stereo or cassette player which went missing from the appellant’s car. According to him, either the complainant, or his associates, stole the car stereo in order to exert a measure of self-help to encourage the appellant to pay a debt: that, too was contentious. It was further suggested on the appellant’s behalf that on the day when it was alleged that he had been driving the red Peugeot car he was assaulted by associates of Mr Afzal, on his instructions. The final area of contention arose from the fact that Mr Afzal had been charged with an offence of kidnap.
44.
The applicable statutory provision is to be found in
s 100
of the
Criminal Justice Act 2003
. The Recorder allowed questions to be asked of the complainants about both the cricket bat and car stereo incidents. The allegation of assault on the same day as the offence was not pursued. The Recorder refused the application by the appellant to introduce or cross-examine Mr Afzal about the kidnap charge. This decision forms the basis of complaint before us.
45.
It was suggested by the appellant at trial, and before us, that the purpose of this evidence was not to establish that Mr Afzal was a person of “bad character”, but in order to demonstrate that others, as well as the appellant himself, might have had a motive for attacking him. The jury knew of the “bad blood” between the two men, and according to the argument by Mr Goldstein, it was essential to the defendant’s case to establish that Mr Afzal had other enemies in addition to and beyond the appellant.
46.
The problem with this argument is simple. The evidence of “bad blood” between the complainant and the appellant was introduced by the appellant, after permission had been sought and given for it to be raised. Moreover, at the time when the dangerous driving occurred, the alleged kidnap incident remained some four weeks into the future. Mr Afzal made his complaint, and identified the appellant as the driver of the Peugeot car on the day when the incident happened. On any view, therefore, the dangerous driving cannot have been a response to or some sort of revenge for the kidnap incident. Beyond that, however, even if the kidnap incident had occurred before the dangerous driving, it remains difficult for us to see why, even if the kidnap incident had indeed occurred, the victim of dangerous driving should wrongly attribute responsibility for it to Mr Afzal rather than to the individual who, on this analysis, was falsely accusing Mr Afzal of kidnap. In any event, the best that could be said at this stage of the case was that this was a bare allegation, itself wholly unproved.
47.
On these facts, there is no justifiable complaint against the Recorder’s decision about the proper application of
s 100
of
the 2003 Act
. The appeal against conviction will be dismissed.
Sentence
48.
The appeal against sentence focuses exclusively on the length of the custodial term, which Mr Goldstein accepts was inevitable. We have noted the comparative youth of the appellant, 18 years at the time, and his previous good character. On the other hand the incident itself was plainly a culmination of what we have described as bad blood between the two men. This case proceeded as a trial, and the appellant lacked the mitigation of a guilty plea. Taking account that Mr Afzal was fortunate to escape serious injury, it may very well be that the sentence fell at the top end of the appropriate range. There is however no basis to justify interference with it. Accordingly the appeal against sentence will also be dismissed.
Osbourne
49.
This is an appeal by Lee Osbourne against his conviction for robbery at Cardiff Crown Court before HHJ Griffith-Williams QC, the Recorder of Cardiff, and a jury.
50.
The appellant was jointly charged with Alex Jenkins, whose application for leave to appeal against conviction was abandoned.
51.
The essential facts can be briefly summarised. In the early hours of 9th September 2004, the police were called to a public house known as the Grasshopper, following a report that the licensee, Russell Cleverley, had been robbed of £200 in cash from the till. The appellant denied any involvement in robbery, and the defence positively called into question whether a robbery had taken place at all. The appellant, a man with a lengthy list of previous convictions suggested that Mr Cleverley fabricated the complaint of robbery in order to cover up his own misconduct as the licensee at the Grasshopper.
52.
The precise details of the incident need no repetition. Mr Cleverley knew the appellant personally. At the end of drinking up time that evening very few people left in the Grasshopper. They included the appellant and Alan Jenkins, who would not leave. After a while Mr Cleverley was threatened by them. Keys to the gaming machines were demanded. The appellant struck him across the left cheek and went with him to the till and demanded money. Mr Cleverley gave him £200 from the till. Jenkins was present at the other side of the bar and told the appellant to take Mr Cleverley upstairs and get the tape. This was a reference to the CCTV tape, which was then removed and destroyed.
53.
Mr Cleverley’s allegation was supported by a fairly considerable body of additional evidence, but no further narrative of the evidence available to the Crown is required.
54.
The material available to the defence extended to four linked areas of alleged misconduct by Mr Cleverley as a licensee. His general conduct and management of the premises produced persistent till shortages. The premises were regularly misused for after hours drinking, free to both staff and late customers, with consequent stock depletion. During these “parties” drug misuse occurred, condoned if not encouraged by Mr Cleverley who participated in the activity. The fourth criticism was directed to Mr Cleverley’s personal use of cocaine on the night of the offence itself.
55.
As Mr Cleverley was a non-defendant, the admissibility of any evidence of bad character or misconduct or reprehensible behaviour depended on
s 100
of the
Criminal Justice Act 2003
. In brief, to be admissible, such evidence was required to be important explanatory evidence, or evidence with a substantial probative value in the context of the case as a whole.
S 100
was analysed by the Recorder. He decided that counsel for the appellant was entitled to deploy all the material, with the exception of the generalised allegation of drug misuse during after hours drinking sessions. If true, the allegations of general till shortages and the provision of free drink, and so on, lent support to the allegation that any shortage in the till might be attributed to the landlord’s misconduct, rather than an alleged robbery. If Mr Cleverley used cocaine on the night of the offence itself, that might significantly undermine his complaints against the appellant. However, the Recorder was unable to conclude that the drug-taking allegation fell within the rules governing admissibility prescribed by
s 100
.
56.
The complaint is that the Recorder’s decision was wrong. The excluded material impacted on Mr Cleverley’s general credibility but it went further, and served to demonstrate that he was lying when he claimed that he had been the victim of an offence. Moreover, it was argued, that this material added credibility to the defendant’s account to the police in interview.
57.
The problem with Mr Jones’ fundamental contention can be summarised briefly. The allegation that the premises were misused generally for drug offences did not help to demonstrate why or support the conclusion that Mr Cleverley was or may have been inventing a fictitious crime. In the Recorder’s view this allegation therefore lacked the explanatory importance and substantial probative value which was required to be satisfied before evidence of the bad character of a non-defendant could be admitted. These decisions have always to be reached in a particular factual context. We lack what is sometimes described as what is sometimes described as the trial judge’s “feel” for the case. We should therefore hesitate before interfering with his conclusion in a matter of judgment. In our view even if this line of questioning may have had some marginal relevance, given that the Recorder permitted the proper development of lines of questioning which had a direct and significant impact on the issue to be decided by the jury, the prohibition against Mr Jones developing this particular line of cross-examination could have had no bearing on the outcome of the trial. That said, in our judgment the Recorder’s decision was right. This particular material did not satisfy the admissibility provisions in
s 100
.
58.
A further complaint arising under
s 100
is directed against the judge’s decision that a defence witness, Welsh, an employee of Mr Cleverley, described by the complainant as a friend, could be cross-examined about his bad character. His evidence purported directly to undermine Mr Cleverley’s allegation that he had been the victim of violence on the night in question. In short, he gave evidence which served to support the assertion that Mr Cleverley had indeed invented the claim that he had been robbed.
59.
Welsh had as recently as February 2003 been sentenced to two years’ detention for an offence of serious violence. The judge agreed with the Crown that he could be cross-examined about it. The evidence of the conviction fell within
s 100
, particularly germane to the fundamental question whether or not a robbery had taken place. Without knowing of Welsh’s character, the jury would have been deprived of important evidence of substantial probative value in relation to the issue of the credibility of Welsh’s evidence on the vital question whether Mr Cleverley had fabricated his complaint, or whether in truth he was rightly to be regarded as a victim.
60.
We cannot find any principled basis for interfering with the judge’s decision. In agreeing that Welsh could be cross-examined about his previous conviction, the judge observed that the jury was entitled to know about Welsh’s character. With respect we would suggest that this was an over-parsimonious compliance with the duty of the court under
s 110(1)
of
the 2003 Act
to give reasons for any rulings made under
s 100
. However, as the decision itself was correct, the absence of detailed reasons does not impinge on the safety of the conviction. Accordingly this appeal will be dismissed.
Razaq and Razaq
61.
Ajaz Razaq is the son of Abdul Razaq. On 18th March 2005 in the Crown Court at Isleworth, before Ms Recorder Gupta and a jury, both were convicted of assault occasioning actual bodily harm and affray. Another son of Abdul Razaq, Shabaz Razaq, was similarly convicted. Each was sentenced to a total of 15 months imprisonment. Ajaz Razaq and Abdul Razaq appeal against conviction with leave of the single judge.
62.
An unpleasant incident occurred at about 6 pm in the early evening of 21st December 2003. There was an altercation outside a taxi office run by Perwaz Razaq who was later acquitted of witness intimidation. In the result Tarab Raja sustained a superficial laceration to the left side of his face, some 4 cms long, abrasions and bruising to the front upper chest, soft tissue swellings to the head, abrasions to the elbow and knee, and cuts to his fingers.
63.
For ease of reference, and to avoid misunderstanding, we shall throughout the rest of this judgment refer to Ajaz Razaq as Ajaz, Abdul Razaq as Abdul, Shabaz Razaq as Shabaz, Perwaz Razaq as Perwaz and Tarab Raja as Tarab.
64.
The case for the Crown was that as a result of a telephone call from Shabaz indicating that he could now collect £100 he was owed, Tarab was tricked into going into the taxi office. He was there set upon by Shabaz and Abdul, who were later joined by Ajaz. The two brothers were armed with knives: the father was wielding a metal pole.
65.
The defence was that Tarab was the aggressor. He attacked Shabaz, whose father Abdul, and subsequently whose brother Ajaz intervened to protect him. Neither of these appellants behaved aggressively or violently save to the extent necessary to protect Shabaz.
66.
The precise details of the evidence need no further narrative. Although it was virtually impossible to discover the issues from the defence case statement by Ajaz, in reality the jury had to decide whether one or both of these appellants was or may have been acting in what throughout the trial was described as “self-defence of another”. For resolving that question, the credibility of all the protagonists required close analysis.
67.
Two further aspects of the evidence require specific mention. Abdul was a man with previous convictions: so was Shabaz. Ajaz was not. He was a man of good character. The first defendant on the indictment was Abdul: Ajaz came next, then Perwaz, and finally Shabaz. This led, as we shall explain, to some tactical manoeuvrings. In the end, each defendant gave evidence.
68.
Tarab, too, had previous convictions. The full information about him was that he was cautioned in April 1997, when he was 15 years old, for assault occasioning actual bodily harm, and cautioned again in September 1998 for theft. We were told that the assault was a very serious incident which resulted in the victim being rendered unconscious in the street. Quite apart from cautions, notwithstanding “not guilty” pleas, he was convicted in July 2000 of violent disorder, grievous bodily harm with intent, and wounding, and sentenced to a total of 30 months’ detention at a Young Offender Institution. These convictions represented two distinct and serious incidents of violence. In addition, in April 2004, he was fined £100 for breach of the peace.
69.
This leads to the second general aspect of the evidence, arising in the case of Ajaz. Apart from good character, his evidence-in-chief was exceptionally brief. He simply adopted what he had said in his police interviews. This amounted to a denial of any direct involvement. He had seen a fight between his brother and Tarab. He did not see any metal pole, and he had no weapon himself. He pushed the protagonists apart, and in turn was pushed back onto the floor. Apart from accepting that Ajaz’s presence at the incident, as we have already noted, the defence case statement said absolutely nothing of value. It stated that the defendant denied assaulting Tarab and denied using or threatening unlawful violence by himself or any other person. As to witnesses, he was not accepting the evidence of any prosecution witness which implicated him “as being responsible for any criminal offence”. If one bothers to read further on, the statement asserts that it “does not purport to set out every aspect of the defendant’s case in detail”. In truth it said virtually nothing which was not fully encompassed in the “not guilty” plea.
70.
We can now come to the issues raised in the appeal.
71.
After Tarab had given his evidence-in-chief, counsel for Ajaz, not we emphasise, counsel for Abdul, applied under
s 100
of the
Criminal Justice Act 2003
to cross-examine Tarab about his previous convictions.
72.
When the application was made, the Recorder observed that at that stage there was nothing in the defence case statement to suggest that Ajaz was acting in self defence, or indeed that Tarab had initiated the violence. She was concerned that Tarab’s conviction for violent disorder had also involved Shabaz when he, too, had been convicted of violent disorder. Thereafter the argument that Tarab’s convictions should be admitted was taken up by counsel by Shabaz, although at this stage he did not adopt the argument on his behalf.
73.
The Recorder rejected the application on the basis that the defendant who was making it failed to establish for the purposes of
s 100(1)
(b) that Tarab’s bad character was of substantial probative value in the case against Ajaz. In reaching her conclusion, she was alert to the contents of Ajaz’s interview and the defence case statement. This perhaps distracted her from addressing what was said to be Tarab’s “propensity for violence”, and whether, as was inevitably the case, that his credibility, too, was impugned by conviction after not guilty pleas to three different offences.
74.
After this ruling, an application was then specifically made on behalf of Shabaz to introduce the full story of Tarab’s previous history. The end result was that permission was given to counsel to cross-examine in general terms that the witness was a violent man, basing it on the previous convictions for violence, and, according to the transcript of the ruling, but not apparently followed up at trial, the caution for assault.
75.
In the result Tarab was cross-examined by Abdul and Ajaz without reference to his previous convictions, and then by Shabaz about the convictions for violence and the overall circumstances of each offence, including his “not guilty” pleas. Neither Abdul nor Ajaz sought leave to further cross-examine, but it is implicit in the arguments that we have heard that the cross-examination on Shabaz’s behalf was adopted and later deployed on their behalf. The long-term consequence was that Shabaz’s previous convictions also went before the jury. Abdul’s did not.
76.
The major complaint made by Abdul and Ajaz was that the judge was wrong to reject Ajaz’s application to cross-examine Tarab about his previous convictions. We shall assume for present purposes that her ruling limited the cross-examination to the specific incidents of violence represented by the conviction in July 2002. Complaint was made on behalf of Abdul that the full details of both cautions and the subsequent breach of the peace should also have been admitted. Given Tarab’s age at the date of the matters which gave rise to the cautions, and assuming that the facts relating to them might also have been admitted, we can see no reason to interfere with the conclusion that this material lacked the substantial probative value required by and did not properly fall within
s 100(1)
.
77.
Abdul has no legitimate complaint. He never made an application nor sought in any way to introduce Tarab’s previous convictions into evidence. We understand the tactical considerations which may have inhibited his counsel from doing so at trial, but it can only be in exceptional circumstances that a defendant who is unprepared to make or expressly associate himself with an application for leave to cross-examine a prosecution witness may realistically complain at the judge’s decision rejecting an application to the same effect by a co-accused. We can see no reason why a defendant has a justifiable complaint if tactical forensic manoeuvres have failed to produce the hoped for result.
78.
Ajaz has a sounder basis for complaint. We have some sympathy for the Recorder who was faced with a sparse and deficient defence case statement, and perhaps insufficient focus in argument on the specific allegations made directly against Ajaz by Tarab. Nevertheless, in our judgment insufficient weight was given to the critical importance of Tarab’s direct evidence implicating him. In the result, however, Tarab was cross-examined about his critical convictions, and that material, and the character of the complainant making allegations against Ajaz was before the jury.
79.
Apart from some generalised unspecific complaint, Mr Cifonelli did not identify any particular prejudice sustained by Ajaz which was not cured by the successful application on behalf of Shabaz. This ground of appeal therefore fails.
80.
The Recorder’s directions about the use to be made of Tarab’s previous convictions are criticised. She had, of course, to exercise a very careful judgment not to direct the jury about Tarab’s convictions in such a way to produce an inappropriately adverse reaction to the fact that Shabaz was himself involved in one of those offences.
81.
She directed the jury that this material might help them to understand the other evidence in the case, including “the character of the person who brings these charges and the case as a whole”. She suggested that the jury might be helped to resolve the issue whether Tarab was lying, and pointed out that a person of bad character may be less likely to be telling the truth than someone of good character. Later in the summing up she directed that the previous convictions of Shabaz could be taken into account when deciding whether or not his evidence was truthful, linking it to the case of Tarab, pointing out that a person bad character may be less likely to tell the truth. She completed her summing up observing that the jury had to decide to what extent, if at all, Tarab’s “character helps you when judging his evidence”. She also gave a full good character direction in relation to Ajaz covering credit and propensity.
82.
There is force in the complaint that the Recorder did not give any detailed directions about the potential relevance of Tarab’s previous convictions for violence to the issue of propensity, and therefore to their possible bearing on the critical question whether or not he may have been the aggressor rather than the victim. It is however difficult to imagine that the jury would have failed to consider and given appropriate weight to those convictions when they considered which of the protagonists was the aggressor. The Recorder had expressly referred to the assistance this evidence might give to help understand “the case as a whole”, and whether Tarab was lying “about his actions during the incident”. These directions should have been more direct and specific. It needed no more, than perhaps a single clause encompassing words such as, “… may be taken into account by you when considering whether Tarab Raja was the victim or the aggressor”. That said, in our judgment, in the context of this case, the deficiencies we have identified do not undermine the safety of the convictions.
83.
We now come to the final, unconnected complaint, that the judge’s direction on “self-defence of another” was inadequate. Properly understood, the defence of both Abdul and Ajaz was not self defence at all. Neither was responding to a personal threat against his own safety. Each was reacting to protect Shabaz. No-one addressed
s 3(1)
of the
Criminal Law Act 1967
or, indeed, the common law principle that an individual is entitled to use such force as is reasonably necessary to protect someone else from a threat of violence. The appeal in
Duffy
[1967] 1 QB 63
was allowed on the basis that the judge had wrongly withdrawn a defence of rescue in circumstances permitted by the common law. That did not happen here. A very full and complete self defence direction was given, and it is plain that everyone at trial treated the self defence direction as if it applied to the situation in which Abdul and Ajaz claimed to have found themselves. Indeed the Recorder pointed out in express terms, in her brief summary of the respective contentions, that Abdul said that he was “acting in defence of another”. She subsequently reminded the jury of his case that Abdul was not fighting with anybody, “only trying to stop them”. She also reminded the jury of Ajaz’s case that he stepped between his brother and Tarab, and pushed them apart.
84.
When the summing up was virtually completed, in the presence of the jury, counsel on behalf of Abdul suggested that the Recorder had dealt with “self defence of ones’ self” but not with what he described as “self defence of another”. She was firmly convinced that she had done so, and recorded that the jury was nodding. The Recorder went on to recall that she had said that “they were saying self defence of another” and indicated that the directions on self defence applied to self defence of another. She then went on to indicate that her directions about self defence applied to Abdul and Ajaz whose only involvement was to defend Shabaz and separate him and Tarab. It is abundantly clear that the jury will have applied the relevant legal principles to each of their cases.
85.
Having concluded that none of the individual complaints, taken on its own, impugns the safety of these convictions, we reconsidered whether the convictions were rendered unsafe by the cumulative effect of the problems we have identified. Having done so, we have concluded that these convictions are safe. Accordingly the appeals are dismissed.