3TG Case Updates – JUNE 2010

CRIS REPORTS AS EVIDENCE OF A NON-DEFENDANT’S BAD CHARACTERStephen Braithwaite v The Queen [2010] EWCA Crim 1082

Date of Judgment:  25^th May 2010

Judges: Hughes LJ, Mr Justice Maddison, Mrs Justice Thirlwell DBE

Case Summary:Mr Braithwaite was convicted of murder at Snaresbrook Crown Court, the issue at trial having been self-defence. It was disputed that the defendant was the aggressor in the incident which led to a fatal stab wound in the neck of the deceased.

The Court were asked to consider the decision of the trial judge to disallow an application to adduce, by way of written admissions, evidence of non-defendants bad character arising from various police CRIS reports. The CRIS reports in question related to prosecution witnesses whose evidence was relied upon to show that the defendant, not the deceased, was the aggressor. The CRIS reports related to various incidents in which violence and the use of weapons was alleged.

The Court reminded itself of the  requirements of s.100(1) CJA 2003 which states that, other than by agreement, a non-defendants bad character is admission only if:

(a)    It is important explanatory evidence, [or]

(b)   It has substantial probative value in relation to a matter which

(i)     Is a matter in issue in the proceedings, and

(ii)   Is of substantial importance in the context of the case as a whole.

This requires a judgement, not discretion, on behalf of the trial judge, who must consider a) The issue to which the evidence goes, b) whether that issues is of substantial importance in the context of the case as a whole and c) whether the issues has substantial probative value in relation to that issue. The consideration of these questions will be highly fact-sensitive.

s.100(3) provides a non exhaustive list of factors (e.g. number of events, extent and similarity to alleged conduct) to be considering in considering the above questions and emphasises that the test is a test of the force of the evidence which it is sought to adduce. S.109 provides that the evidence must be considered on the basis that it is true (unless no jury could accept its truth). The nature of the evidence must be looked at.

The court ruled that CRIS reports were, at best, hearsay and would be difficult for the jury to assess. A complainant who makes an allegation which is recorded in a CRIS and then fails to support it, robs the allegation of substantial probative value. Further, it the police or CPS decide not to pursue an allegation the probative value is further reduced. It would not be appropriate to tell the jury by way of admission that a witness was suspected of committing and offence or had been investigated for so doing. The difficulties the police have in pursuing complaints does not convert their internal records into evidence that a named person committed an alleged offence.

If elements from the CRIS reports were to be admitted, in order to form the basis for cross examination intending to show a propensity to violence (with the use of weapons) or to undermine credibility, that cross examination would be vested with authority arising from the police documents. The jury would, of course, be bound to accept the answers given in cross examination, not the questions, which were not evidence, but there was a danger that they would be affected by the bad character which it ought not to have heard.

A conviction is by statute evidence that the person committed the offence. A caution involves a distinct admission. A penalty notice may or may not result from a distinct admission. The CRIS reports, in which no conviction, caution or penalty notice ensued either had no substantial probative value or no probative value at all.

Appeal dismissed.   

ADMISSION OF HEARSAY EVIDENCEED v Regina [2010] EWCA Crim 1213

Date of Judgment:  28^th May 2010

Judges:  Pitchford LJ, Mrs Justice Rafferty and HHJ Goldstone QC

Case Summary:

This appeal against conviction dealt with the question of whether it is in the interests of justice, within the meaning of Section 114(1)(d) of the Criminal Justice Act 2003, to admit in evidence the hearsay statement of a reluctant but available witness where the reasons for her not giving evidence are insufficient to engage section 116. 

The case concerned historical sexual allegations.  The appellant’s defence was one of recent concoction.  The issue that arose in the appeal concerned evidence of a previous complaint by one of the victims to a witness who, being at the time of trial 28 weeks pregnant and with a holiday pre-booked, was reluctant to give live evidence.  The Crown had only contacted the witness shortly before the trial, despite the trial being fixed for a long time.  The prosecutor declined to call the witness.  An application to adduce the evidence of the witness, on health grounds, was prepared under section 116 but this was not proceeded with.  Instead an application was made under s.114 and this application succeeded. 

The defence appealed, arguing the judge failed properly to analyse section 114(2) and failed to pay significant attention to the question raised under section 114(2)(g) "whether oral evidence of the matter stated can be given and, if not, why it cannot". 

The Court of Appeal, relying on O'Hare (2006) EWCA Crim 2512 stated

‘This decision…reinforces the court's view that it should not countenance the use of section 114(1)(d) to circumvent the requirements of other gateways to admissibility higher up the section 114(1) hierarchy.”   

After considering exceptional cases where s.114 (1) (d) was used including Adams (2007) EWCA Crim 3025 and Musone [2007] EWCA Crim 1237 the court concluded,

‘Each of these decisions demonstrates, in our view, how limited are the circumstances in which the evidence of an available but reluctant witness may be admitted in the interests of justice’ 

Although the appeal was dismissed for other reasons, the court nevertheless concluded the evidence had been wrongly admitted under s.114.

 CROSS EXAMINATION AND BAD CHARACTERR v Jonathan William Miller [2010] EWCA Crim 1153

Date of Judgment:  26^th May 2010

Judges: Pitchford LJ, Mr Justice Maddison and Mr Justice Macduff

 Case Summary:

Questions put in cross examination with a view to implicating a witness in denied bad behaviour would be permitted infrequently and be limited in scope. If the accusation was otherwise unproved, the jury would require a specific direction not to regard the question as assisting the prosecution case.

This was an appeal against convictions on five counts of possessing drugs with intent to supply and four counts of possessing criminal property. Drugs and a large amount of money had been found by police in the Defendant's bedsit. He denied that they belonged to him and claimed that a friend of his (C) had been using the bedsit before the police search. At the Defendant's trial, C gave evidence that the drugs and money were at the bedsit because he had been compelled by two men to whom he owed money to find somewhere to store drugs for them, and that the money was there to pay off his debt. The prosecution sought permission under the Criminal Justice Act 2003 s.100(1)(a) and (b) to cross-examine C about his bad character on the grounds that he had been charged with two serious conspiracy offences for which he was expecting a lengthy sentence, and he was prepared to take responsibility for the Defendant's offences in the belief that his sentence would not be significantly increased. During limited cross-examination permitted by the judge, C denied guilt for the conspiracy offences. The judge directed the jury that there was no evidence that C was guilty of the conspiracy offences, that allegations did not prove anything, to be very careful to treat C fairly, and to ignore any suggestion about him facing a long sentence.  

The Defendant submitted that the judge should not have permitted cross-examination, and, having done so had failed to give adequate directions to the jury.

Appeal dismissed: 

(1) Evidence of bad character was not confined to proof of previous convictions, but it had to pass the test in s.100(1) of being important explanatory evidence or of substantial probative value on an issue of substantial importance. The Defendant had sound material upon which to suggest that C was guilty of the conspiracy offences, but unless he was able to prove C's guilt in the event of a denial, the cross-examination should not have been allowed, R v Bovell (Kelvin Anthony) (2005) EWCA Crim 1091, (2005) 2 Cr App R 27 considered.

Furthermore, the evidence was not capable of amounting to important explanatory evidence unless C's guilt was proved. Occasions where one party would be permitted to ask a question in cross-examination with a view to eliciting an answer implicating the witness in bad behaviour which that party would otherwise be unable to prove would be infrequent and limited in scope, for example during cross-examination as to the discrete detail of an admitted conviction or admitted behaviour. If the accusation was denied and otherwise unproved, the jury would require a specific direction not to regard the question as in any sense assisting the prosecution case.

(2) The judge had given emphatic instructions to the jury that were sufficient to remove from C the taint that his evidence should be discounted or diminished on the ground of mere assertion or suspicion. The verdicts were safe.