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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