Court of Appeal, Criminal Division

Published July 4, 2007

Regina v Campbell (Kenneth)

Before Lord Phillips of Worth Matravers, Lord Chief Justice, Mr Justice Henriques and Mr Justice Teare

Reasons June 26, 2007

Once a defendant’s previous convictions had been admitted in evidence, the jury could attach significance to them in any respect in which they were relevant.

To draw a distinction, in such circumstances, between propensity to offend and credibility would usually be unrealistic since, if the jury learnt that a defendant had shown a propensity to commit criminal acts, they could well conclude that it was more likely that he was guilty and less likely that he was telling the truth when he said that he was not.

The fact that there was an issue as to whether a defendant’s case was truthful did not, in itself, mean that evidence could be admitted to show that he had a propensity to be untruthful.

The Court of Appeal, Criminal Division, so held in giving reasons for its decision on May 14, 2007 to dismiss Kenneth Campbell’s appeal against his conviction on September 7, 2006 at Reading Crown Court Judge Risius and a jury) of false imprisonment and assault occasioning actual bodily harm.

Mr Rudi Fortson, assigned by the Registrar of Criminal Appeals, for the appellant; Mr Richard Bendall for the Crown.

THE LORD CHIEF JUSTICE, giving the judgment of the court, said that the appellant had two previous convictions for violence, to which he had pleaded guilty.

At trial that evidence was introduced under section 101(1)(d) of the Criminal Justice Act 2003 as being relevant to “an important matter in issue between the defendant and the prosecution” namely, whether he had a propensity to commit offences of the kind with which he was charged.

The appellant argued that the judge should not have directed the jury that it was open to them to treat that evidence as bearing on his credibility.

In their Lordships’ judgment, the change in the law relating to character evidence introduced by the 2003 Act should simplify the directions to juries in relation to such evidence.

Decisions in that field before the relevant provisions of the 2003 Act came into force were unhelpful and should not be cited.

Where evidence of bad character was introduced the jury should be given assistance as to its relevance that was tailored to the facts of the individual case. Relevance could normally be deduced by the application of common sense.

The summing up that assisted the jury with the relevance of bad character evidence would accord with common sense and assist them to avoid prejudice that was at odds with that.

Their Lordships rejected the appellant’s submission that the jury could only use evidence of bad character for a particular purpose if it could have been introduced through the relevant gateway.

Once the evidence had been admitted through a gateway it was open to the jury to attach significance to it in any respect in which it was relevant.

To direct them only to have regard to it for some purposes and to disregard its relevance in other respects would be to revert to the unsatisfactory practices that prevailed under the old law.

What should a jury’s common sense tell them about the relevance of the fact that a defendant had, or did not have, previous convictions?

It might tell them that it was more likely that he committed the offence with which he was charged if he had already demonstrated that he was prepared to break the law, the more so if he had demonstrated a propensity for committing offences of the same nature as that with which he was charged.

The extent of the significance to be attached to previous convictions was likely to depend upon a number of variables, including their number, their similarity to the offence charged and how recently they were incurred and the nature of his defence.

In considering the inference to be drawn from bad character, the courts had in the past drawn a distinction between propensity to offend and credibility. That distinction was usually unrealistic.

If the jury learned that a defendant had shown a propensity to commit criminal acts they might well at one and the same time conclude that it was more likely that he was guilty and that he was less likely to be telling the truth when he said that he was not.

Section 103(1)(b) provided that matters in issue between the prosecution and defence included “the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect”.

It would be comparatively rare for the case of a defendant who had pleaded not guilty not to involve some element that the prosecution suggested was untruthful.

It did not, however, follow that, whenever there was an issue as to whether the defendant’s case was truthful, evidence could be admitted to show that he had a propensity to be untruthful.

Whether or not a defendant was telling the truth to the jury was likely to depend simply on whether or not he committed the offence charged. The jury should focus on that question rather than on whether or not he had a propensity for telling lies.

The only circumstance in which there was likely to be an important issue as to whether a defendant had a propensity to tell lies was where telling lies was an element of the offence charged.

Even then, the propensity to tell lies was only likely to be significant if the lying was in the context of committing criminal offences, in which case the evidence was likely to be admissible under section 103(1)(a).

The Judicial Studies Board’s specimen directions on bad character directed the judge to identify the gateway or gateways through which the bad character had been admitted by reference to the wording of the Act.

Their Lordships questioned the desirability of that. Reciting to the jury the statutory wording in relation to the relevant gateway was likely to be unhelpful.

If the jury was told in simple language and with reference, where appropriate, to the particular facts of the case, why the bad character evidence might be relevant, that would necessarily encompass the gateway by which the evidence was admitted.

In the rare case where evidence of bad character had been admitted because the question of whether the defendant had a propensity to be untruthful was an important matter in issue between the defendant and the prosecution, the direction should always explain the relevance of the evidence with reference to the particular facts which made that matter important.

It was, of course, clearly highly desirable that the jury should be warned against attaching too much weight to bad character evidence let alone concluding that the defendant was guilty simply because of his bad character.

In the present case, the judge gave the jury the Judicial Studies Board’s specimen directions without relating them to the facts of the case. Their Lordships doubted whether that could greatly have assisted the jury.

However, on the facts, the terms of the summing up could have had no impact on the safety of the verdict.

Solicitors: Crown Prosecution Service, Reading.

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