Neutral Citation Number: [2009] EWCA Crim 2899
Case No: 200901417/C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
 
Date: Thursday, 3rd December 2009
 
B e f o r e:

LORD JUSTICE MOSES

MR JUSTICE IRWIN 
 
MR JUSTICE EDWARD‑STUART 
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 R E G I N A 

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H 
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 Mr T Schofield appeared on behalf of the Appellant 
Mr I Ball appeared on behalf of the Crown 
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 J U D G M E N T 

1.	LORD JUSTICE MOSES:  This is an appeal against conviction which raises the question of the proper interpretation of section 100 of the Criminal Justice Act 2003, where a third party is accused of the very offence of which the accused faces.
2.	This appellant was charged with two robberies at the same premises, which took place less than a month apart, in September and October 2008.
3.	The jury disagreed as to the first robbery, alleged to have taken place on 19th September 2008, but convicted of  the second.  The defendant denied that he was the perpetrator of the robbery and accused another man, HH.  At the time he made that accusation it was not proposed to call HH as a witness but the prosecution did call him by way of rebuttal.  HH denied that he was the robber.
4.	The first robbery, with which we can deal shortly, took place at an off‑licence in Coventry called "The Local" on 19th September 2008.  The robber demanded of the shopkeeper that he open the till.  He was wearing a hat and a scarf which slipped down his face and he was armed with a hammer.  He stole about £500.  Less than a month later, 14th October, a man wearing a jacket with a hood pulled over his head entered the same premises armed with a knife, used the same opening words to the effect: "Don't fuck about" and demanded that the unfortunate shopkeeper should open the till.  There was an accomplice acting as a lookout and cigarettes to the value of £300 were taken.
5.	The evidence on the first robbery was of identification. The shopkeeper described what he thought was the robber's face from which the scarf had fallen, said he had bad skin and a spotty face and rough scabby facial skin with a prominent nose and sunken eyes, all of which can be seen on the still of the video.
6.	In relation to the second robbery there was further evidence, namely evidence of a footprint on a piece of  paper, which had fallen onto the floor.  The footprint was subsequently matched to a pair of trainers owned by the appellant.  The shopkeeper subsequently followed, three days after the second robbery; a video identification procedure and picked out this appellant.
7.	The appellant gave evidence denying that he was the robber and explained the matching footprints by saying that once he had moved to an address in Arden Street, early in October 1998, he used to leave his trainers outside his room, because he did not want to spoil the new carpet.  He said that the man he suspected of committing the robberies was a man called HH, who he knew and who he claimed had visited the address on three or four other occasions visiting other residents and thus had the opportunity to steal his trainers and wear them during the course of the second robbery.
8.	The appeal has focused, however, upon two aspects of the bad character provisions under the Criminal Justice Act 2003.  The defence sought to adduce two aspects of the bad character of the man they named as being guilty of both of the robberies, who, at the stage, they named him was not proposed to be called as a witness.
9.	They sought to adduce evidence, firstly, that eight days before the first robbery, this man, HH had been in the shop and with an accomplice had stolen cigarettes.  For that offence he had been sentenced on 18th November 2008.
10.	The judge permitted that evidence to be given as being admissible pursuant to section 100(1)(b).  That provision provides:  
"1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if—  
...
 (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." 
11.	In considering the probative value of that evidence, the court is required to have regard, in the context of this case to provisions of section 100(iii), firstly:
"(c) where— 
(i) the evidence is evidence of a person’s misconduct, and
(ii) it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct. 
the nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct..."   
And (d): 
"i) the evidence is evidence of a person’s misconduct. 
(ii) it is suggested that that person is also responsible for the misconduct charged, and
(iii) the identity of the person responsible for the misconduct charged is disputed. 
the extent to which the evidence shows or tends to show that the same person was responsible each time."
12.	Having regard to the fact that the theft took place only eight days before at the same premises, the judge took the view, taking into account those factors he was required to take into account under subsection (3) that the evidence of HH's theft should be admitted.  However, he declined to allow the defence to adduce a further aspect of HH's bad character.  Back in 2002, HH had been guilty of two robberies, one of a fellow passenger on a train and another in a street; nothing to do with robbery in a shop.
13.	The judge appears to have taken the view, at the instigation of the prosecution, that because those robberies bore no relation in their facts to the robberies of which the accused was charged, it would not be right to admit that evidence.  He took the view that that lack of similarity was dispositive in refusing the admission of that evidence and during the course of argument, commented that section 100 precludes adducing evidence of the propensity of a non witness to commit the crime in issue.  He said: "propensity forms no part of section 100".
14.	In the appeal before us Mr Ball, on behalf of the prosecution has attempted to support that view of section 100.  This is not surprising since it is clear that it was his submissions and approach which led the judge to take that view.
15.	In our view that represents a misconstruction of section 100.  The section is not limited in such a way as to exclude evidence either of the propensity of a non defendant or his credibility.  Both may have substantial probative value in relation to a matter which is in issue in the proceedings.  In this particular case the identity of the robber was in issue; it was an issue as to whether it was this appellant who was guilty of the robberies or alternatively, HH.  There is no statutory warrant for restricting the application of section 100 in the way that the judge sought to limit it.
16.	There is further statutory fortification for the proposition that both propensity and credibility, as revealed by a non defendant's bad character, may be of substantial probative value, in those factors which a court is required to take into account, under subsection (3).  In particular the full‑out words at the bottom of (c) and (d) provide a stark contrast as to the scope of those factors.  The full out words at the end of (c) refer to the nature and extent of  similarities and dissimilarities.  The full‑out words at the end of (d) are not so restricted and merely refer to the extent to which the evidence shows or tends to show that the same person was responsible each time.
17.	It is true that nowhere in section 100 is there a specific reference to propensity, but that, in our judgment, provides no warrant for the unrealistic and on occasions unfair limitation under section 100, which would follow were propensity not to be admissible.  If further support for that proposition is required, it can be found, both in the commentary of the editors of Archbold, in 2010 edition, Chapter 13‑14, pages 1519 to 1520, in which they point out that the language of section 100 does not recognise a distinction between matters going to the issue and matters going to credit and in which later they refer to the somewhat curious concept of "reverse propensity". Further support is given, perhaps with greater clarity, in Blackstone's Criminal Practice, 2010 at F14.8 and F14.5 which draws specific attention to the authority of R v Weir [2006] 1 WLR 1885 at paragraph 73 [2006] 1 Cr App R 1 No 19, page 303, in which Kennedy LJ said, in relation to section 100 and the question whether it covered issues of credibility:  
"Although couched in different terms from the provisions relating to the introduction of the defendant's bad character, in our view, section 100(1) does cover matters of credibility. To find otherwise would mean that there was a significant lacuna in the legislation with the potential for unfairness."
18.	That view of section 100 is amply demonstrated in the facts of this case.  If the judge was right and the jury should only hear of HH's conviction for theft, a highly misleading picture would be painted to the jury.  HH, who was called, by way of rebuttal, to say he was not guilty of either of the robberies might well have given the impression, as a result of ruling his robberies inadmissible, that he was only a thief and was not the sort of man who would commit a robbery of which this appellant was accused.  That would be misleading even though the robberies were of a different nature.  He was a robber, although the robberies were committed some years before in 2002, and the defendant was deprived of the opportunity of putting to him, in the presence of the jury, not only that he was a thief, but that he was also one who was, as Irwin J put it arguendo, prepared to use violence in order to achieve his objective of theft.
19.	In our view, properly construed, section 100 avoids such unfairness and does permit offences such as these robberies to be adduced notwithstanding that they were of a different character.  They were relevant, both to show the propensity of HH, to use violence in order to steal and also as going to his credibility.  In those circumstances, we take the view that the judge was wrong to exclude them.
20.	That leads to a difficult issue in this case, namely the safety of the verdicts.  As Mr Ball has successfully demonstrated, this was a very strong case.  The notion that HH stole the trainers temporarily for the purposes of committing the robbery and then returned unnoticed, to this defendant's premises is laughable.  However, it is also plain that the person who committed the second robbery is likely to have been, if not certainly, the man who committed the first.  Certainly the shopkeeper thought it was the same man.  It is therefore of note that the jury could not agree in relation to the first robbery, notwithstanding that there was ample opportunity to identify the robber and the shopkeeper purported to do so, although there was some dispute as to whether he was accurate about the robber's facial condition.
21.	It is, therefore, difficult to say that in those circumstances the jury would not have been swayed by the evidence of HH's previous robberies or that really it would have made no difference.  We think it was a strong case but it was hardly less strong in relation to the first robbery, as it was in relation to the second.  Yet, the jury disagreed in relation to first.  We think that, having regard to the exclusion of what might have been thought to be important evidence in relation to HH, fairness demands that the conviction in relation to the second robbery should be quashed.  We are particularly influenced by the fact that if we do not quash it it will be evidence which the prosecution will be entitled to deploy on the first robbery, and it requires no great seer to foresee what is likely to happen in the retrial in relation to the first were that to take place.  I should add by way of judgment that there was a further ground of appeal which was not pursued with any great vigour very sensibly that the judge was wrong to lay before the jury the accused's own previous convictions for robbery.  There was no basis for not including those and still less there would have been any basis once HH's previous convictions had gone in.  In those circumstances there is no need to say any more about that aspect of the appeal.  In those circumstances, and for those reasons we shall quash the conviction and allow the appeal.  We shall hear argument as to whether there is any resistance to the proposition he should be tried again on the second robbery alongside the first.
22.	MR SCHOFIELD:  I am bound to ask there be no retrial but we have already discussed in argument that fairness dictates that there should be a retrial.
23.	LORD JUSTICE MOSES:  Thank you very much.   
24.	So far as the retrial, we shall order a retrial.  We shall make the following orders.  We shall allow the appeal, quash the conviction on the second count and direct that a fresh indictment be preferred that the appellant be arraigned on that fresh indictment within 2 months.  Is he in custody at the moment?  We direct that he remain in custody.  What orders for representation do you want?  You are presumably representing him.
25.	MR SCHOFIELD:  Yes, for single or junior counsel.
26.	LORD JUSTICE MOSES:  Solicitor and junior counsel, and the two obviously the fresh indictment should be amalgamated with the existing indictment and he be tried together on both.
27.	MR BALL:  In terms it will be the same indictment. 
28.	LORD JUSTICE MOSES:  My Lord suggests we should restrict publication of the judgment until the trial takes place.  I suggested my comments be laid before the jury for them to read but Irwin J is rather more firm than I am about that.  We have to be careful.  I do not imagine Coventry is going to be reading the law reports.
29.	MR BALL:  Could the judgment be published in an anonymised form.
30.	LORD JUSTICE MOSES:  Yes, we better call him "H" for the moment.  By the time it ever gets out we can change that.  But at them moment nothing should be reported that should lead to the identification of the defendant, H.