No: 201405682/B3 
Neutral Citation Number: [2015] EWCA Crim 857
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Tuesday, 21st April 2015
 
B e f o r e:
 
LORD JUSTICE TREACY 
MR JUSTICE KING 
MR JUSTICE KNOWLES
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R E G I N A 

v 

BRYAN FABRISIO VALENCIA
 
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Computer Aided Transcript of the Stenograph Notes of  
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Mr I Fessal appeared on behalf of the Appellant

Mr T Buxton appeared on behalf of the Crown
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J U D G M E N T
LORD JUSTICE TREACY:  
1. This is an appeal against conviction in relation to count 2 of the indictment faced by this appellant.  It is brought with the leave of the single judge.  The subject matter of the appeal relates to the admission of bad character evidence by the trial judge.
2. On 27th October 2014 in the Crown Court at Woolwich, this appellant was convicted of affray (count 1) and unlawful wounding (count 2).  He was subsequently sentenced to 2 years' detention in a young offender institution in relation to count 2, with a 4 month term to run concurrently on count 1.  There was a co‑accused, Santamaria, who was convicted of count 
3. The facts show that the victim of count 2, Fergus Brennan, was on the evening of 27th October 2012 part of a group of over a dozen males and females who were out celebrating Mr Brennan's daughter's birthday.  They were on their way to a nightclub and were coming out of the Elephant & Castle Underground station shortly before midnight.  As they left the station the Brennan group was approached by a group of Latin American males who began to hassle some of the Brennan group.  When a member of Brennan group intervened a major fight broke out between the two groups, in the course of which Mr Brennan was stabbed in the upper thigh with a broken bottle.  
4. The main confrontation and fighting took place at the foot of some steps leading up to a walkway.  Mr Brennan, when the fighting broke out, tried to escape up those steps.  Before doing so he saw a male pick up a glass bottle from ground and throw it at his son, Nathan.  The bottle hit the ground and broke.  He thought the same person then picked up the broken bottle and began to walk towards him.  It was that which led him to back away and go up the steps.  However the male with the broken bottle followed him and stabbed him with that bottle.
5. The Crown's case was that the appellant and Santamaria were both active participants in the affray and that it was the appellant who had stabbed Mr Brennan with the broken bottle.  Mr Brennan described the stabber as wearing a dark coloured hoodie.  
6. Shortly before the stabbing another member of the Brennan group, Lawrence Stephen, said he had been hit over the head with a bottle by a male he said was wearing dark clothing.  He did not pick the appellant out in an identification procedure.  Police were alerted because a person who said he had seen two males involved in the assault getting onto a bus had contacted them.  Shortly afterwards they arrested the appellant and Santamaria.
7. The appellant had a cut to the outside of his right index finger which was bleeding heavily.  The police took him to hospital to be stitched.  When asked about the cut he said he had cut it on glass when he had been with his friend.  His clothing and trainers were heavily bloodstained.
8. CCTV recovered from the station exit showed the appellant and Santamaria involved in the fighting and chasing some people towards steps.  Fragments of broken glass were found in various places but on the ramp at the top of the steps where Mr Brennan had been pursued by his stabber the police found a broken bottle neck with blood stains on it.  DNA analysis was extremely strongly consistent with the blood originating from the appellant.
9. There was also a weak profile indicative of having originated from at least three individuals including the appellant and potentially Mr Brennan.  The profile could have come from Mr Brennan as many of the components of the weak profile were consistent with his DNA. However, no mathematical calculation of the probabilities was possible.
10. The appellant was interviewed but made "no comment" to all questions both before and after the DNA results and CCTV were put to him.
11. The case advanced both by the appellant and Santamaria at trial was that they had seen a major brawl taking place and were mere bystanders.  Each claimed to have been hit or punched.  Although not directly involved, the appellant said he was punched in the head by a man, that had caused him to fall to the ground and cut his hand on broken glass lying on the ground.  All he had done was punch in self‑defence as he got back to his feet.  He specifically denied stabbing Mr Brennan or ever being in possession of a bottle.  The events he described took place at the foot of the stairs near the station exit.
12. The issues for the jury in relation to count 1 (affray) were the appellant's participation and self‑defence.  In relation to count 2, the issue was whether the jury was sure that it was the appellant who stabbed Mr Brennan.  Clearly there was some overlap between the two counts.
13. At the time of these events the appellant was 16 years old.  He was of Latin American appearance.  CCTV shows that he was wearing a light grey top.  This is not consistent with Mr Brennan's reference to his attacker wearing a dark coloured hoodie.  The person described by Mr Stephen was also said to have been wearing dark clothes.
14. During the trial the judge permitted the Crown to adduce evidence of the appellant's two previous convictions.  In  2011 when he was 14, he was convicted of assault occasioning actual bodily harm.  He had stabbed an ex‑girlfriend with a knife.  In 2012 he was convicted of robbery.  At that stage he was 15.  The robbery was committed with three others when another person was robbed of a mobile phone.  No weapon was used or produced.  The Crown submitted that both convictions were relevant to the issues of the appellant's participation in the affray and whether or not he was the stabber.
15. The grounds of appeal are threefold in support of the assertion that the judge wrongly admitted the evidence of the appellant's bad character.  Firstly, it is submitted that the appellant's previous convictions were not of the same description or category as the offence charged.  Secondly, it is submitted that given the age of the appellant when he committed the previous offences, it was unjust to admit them.  Thirdly, it is submitted that the admission of the bad character evidence had the effect of strengthening a weak case that the appellant was the stabber.
16. As to the first ground, the single judge refused leave.  Counsel has not pursued it before us.  In our judgment, counsel was correct not to do so.  In so far as it was submitted that the evidence was unfairly admitted, based on differences in circumstances relating to the earlier convictions, we consider this as part of the second ground.
17. The reference to the previous convictions not being the same description or category as the offence charged is taken from section 103(2) of the Criminal Justice Act 2003, which makes it plain that establishing a propensity to commit offences of the kind with which an offender is charged may be established by evidence that he has been convicted of an offence of the same description, or of the same category as the one with which he is charged but that is without prejudice to any other way of doing so.  It is well established that the Crown may show that a defendant has a propensity to commit offences of the kind which he is charged by wider means those provided by section 103(2) ‑ see for example R v Hanson [2005] 1 Cr App R 21 paragraph 8 and R v Weir [2006] 1 Cr App R 19.
18. Turning to the second ground and its assertion that the admission of the previous convictions was unjust given the appellant's age when he committed the offences, reliance is placed on section 108(2) of the Act, which provides that in proceedings for an offence alleged to have been committed by a defendant when aged over 21, evidence of his conviction for an offence when under 14 is not admissible unless (a) both of the offences are triable only on indictment and (b) the court is satisfied that the interests of justice require the admission of the evidence.
19. Clearly the provisions of section 108(2) are not literally applicable in this case for more than one reason.  Nor is there room for a near miss, as the case of Clarke cited in the second supplement to Archbold 2015 at paragraph 13‑26 makes plain.  However, counsel sought to extrapolate from the provisions of section 108, and to persuade us that it was wrong because of this appellant's age for the judge to have admitted his previous convictions.  We are not persuaded by this point.  While it is understandable that Parliament may have legislated in a relatively limited way regarding convictions where a person over 21 was under 14 at the time of conviction, the very nature of those limitations tends to show that there is no inherent unfairness in circumstances such as these.  However it is appropriate for judges when considering the admission of bad character in relation to a person of tender years to be sensitive to such an application and to consider it with a particular degree of care.  We are satisfied from a reading of the transcripts of this case that the trial judge was alert to that particular need and that he addressed it in coming to his ruling.
20. This appellant was 16 years of age at the time of this incident.  The two convictions recorded against him were therefore relatively recent and thus more likely to show a tendency or character trait of relevance to the present case.  We are not persuaded therefore that the age of the appellant when he committed the previous offences renders the admission of the evidence unfair.
21. We have gone on to consider the situational or circumstantial differences between the previous offences and the present ones, and as to whether they of themselves make the admission of this evidence unfair.  As far as the robbery was concerned it is true that it did not involve the use or threat of a weapon or the infliction of serious violence.  It was not an attack by one group upon another but rather a group attack upon an individual.  However, what that conviction did show was that the appellant was part of a group prepared without justification or excuse to act together to threaten unlawful violence.  This was particularly relevant to the issue of whether or not the appellant participated in the events on the night in question or whether he was merely an innocent bystander who was himself attacked.
22. Again, in the case of the section 47 assault, it is true that the offence was not committed during the course of a public brawl.  Rather it took place in the context of a dispute between boyfriend and girlfriend in the common part of a block of flats or housing estate.  Its particular relevance to this case is that the appellant produced and used a knife with which to stab the girlfriend, a feature particularly relevant to count 2.  
23. Thus, in the relatively recent past this young man has been involved in two relatively serious criminal offences; each of them involving violence or the threat of violence; in each of which he was the aggressor; in one of which he combined with others; and in the second case he used a weapon to stab.  When set alongside the issues in this trial it does not seem to us that the admission of those convictions was either unfair either by reason of the appellant's age or on grounds of lack of relevance or on the basis of a combination of those two aspects.
24. We therefore turn to the third ground which is that the previous convictions should not have been admitted because the Crown's case was weak.  This submission is based on observations at paragraph 18 of the well‑known decision in Hanson.  In support of the assertion that this was a weak case, counsel points to the fact that Mr Brennan's description of the clothing worn by the stabber did not match that of the appellant.  Secondly, reliance is place on Mr Stephen's failure to pick the appellant out on an identification parade, coupled with his description of the dark clothing worn by a person wielding a bottle at an earlier stage of the affray.  Moreover in relation to the DNA evidence, it is submitted that this was unsatisfactory in so far as it related to Mr Brennan and that in its absence there was no other evidence to show that this appellant was the stabber.
25. In a careful ruling the Recorder considered the issue of weakness but held that this was not a basis for ruling out the evidence in case.  Clearly the points made by the defence were relevant factors  to be considered and the Recorder undoubtedly did so.  However, Mr Brennan's description of his attacker's clothing has to be seen in the light of the evidence as a whole and in particular in the context of a fast moving event in which those under attack were suffering from a degree of panic.
26. The evidence of Mr Stephen does not necessarily assist the argument.  He gave a general description of an attacker who hit him with a bottle, whereas Mr Brennan spoke of someone throwing a bottle at a slightly later stage with that broken bottle breaking on the ground and then being picked up by the person who then proceeded to stab him.  There is not necessarily any correlation between the person described by the two men, not least since there was evidence of broken class being found in various places.
27. This leads us then to the DNA evidence.  It is upon this that Mr Fessal has principally relied. The DNA was found on a piece of broken bottle on the ramp to which Mr Brennan had retreated after being pursued by the person with the broken bottle from the foot of the stairs.  That constitutes a strong link between the attacker and that bottle.
28. There is no doubt that the appellant's DNA is on that bottle and he was seen subsequently to have been bleeding from his right index finger, with the cut being at least consistent with having being suffered in the course of the use of that broken bottle.  The appellant's case was that he was not involved in violence at all and was not involved in wielding any broken bottle.  The only place where he was involved was at the foot of the stairs.  His account of falling on broken glass there, and thus sustaining the cut does not seem to us to be one which is very plausible when set alongside the conclusion that he used the bottle as an aggressor in the way described by Mr Brennan.
29. Moreover the innocent explanation put forward by the appellant for the presence of his DNA on the bloodstained bottle was only advanced when he went into the witness box.  The jury was entitled to draw an inference adverse to him from that.
30. Although the attribution of part of the weak DNA profile to Mr Brennan was not capable of a probability assessment, (i) the coincidence of DNA consistent with that of Mr Brennan and also matching that of the appellant on the same piece of broken bottle, (ii) the place of finding of that broken bottle, (iii) the appellant's late disclosure of an important element of his defence in this respect, (iv) the location of the cut on the appellant's finger, in our judgment combine to show that there was a reasonably strong case against this appellant.  We therefore share the Recorder's view that this was not a case of such weakness that he should have declined to admit the bad character evidence.  We additionally note that the stab wound was to the retreating Mr Brennan's left thigh which would be consistent with the infliction of the injury by a right‑handed man as this appellant was.  
30. We have accordingly come to the conclusion that the third ground cannot be sustained.  The judge's ruling specifically dealt with issues of age, the difference circumstances of the previous convictions, the strength of the Crown's case and the question of fairness in admitting the evidence.  There is in our judgment no basis upon which we could or should interfere with the Recorder's decision.
31. We have also reviewed how matters were dealt with in summing‑up.  We are satisfied that they were dealt with in a balanced way, with the Recorder properly putting before the jury relevant considerations relating to the previous convictions and the asserted weakness in the evidence.  In particular, he gave a very fair and careful direction regarding the DNA evidence, included arguments raised by Mr Fessal, and reminded the jury of the need to find supporting evidence for it.  
32. In the circumstances we are entirely satisfied that these convictions were safe.  Accordingly this appeal is dismissed.