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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Hoare, R. v [2016] EWCA Crim 1659 (06 July 2016) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2016/1659.html Cite as: [2016] EWCA Crim 1659

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Copy No: 201505093 B2 Royal Courts of Justice Strand London, WC2A 2LL
		6th July 2016

1. LORD JUSTICE DAVIS: This is yet another appeal in the Court of Appeal (Criminal Division) in which the issue is the trial judge's treatment of an application to adduce bad character evidence. In the present case the defence wished to adduce bad character evidence relating to the complainant. The bad character in this case, as it happened, was a previous conviction for murder. The trial judge refused the application. It is said that he was wrong in so ruling and the conviction is thereby unsafe. A further challenge is raised to the trial judge's refusal to discharge the jury at a later stage of the trial.
2. The position is that this appellant was convicted, after trial in the Crown Court at Maidstone, of a count of inflicting grievous bodily harm and a count of assault occasioning actual bodily harm, the trial being before a Recorder and a jury. He was sentenced by the Recorder to a term of 3 years' imprisonment in total. He appeals against his conviction by leave of the single judge limited to certain grounds: although there has been a renewed application in respect of one of the other grounds raised.
3. By way of overview the position was that the appellant, in May 2015, had been living at the flat of a friend of his called Stephen Brookes, who was to be the complainant in the case. They had known each other for many years. It is the fact, although the jury were not made aware of this, that in 2001, at the age of 15, Stephen Brookes had been convicted of murder and ordered to be detained at Her Majesty's pleasure. He had been released on licence in 2011. He had no previous convictions either before or since his murder conviction. The murder in question had involved Mr Brookes, together with one other young person and when Mr Brookes was aged 15, apparently putting fire crackers into the pockets of a man who was sleeping on a park bench and the man subsequently died as a consequence of the injuries received from the resulting conflagration. This received, as we gather, much local publicity at the time. There is no dispute that the appellant well knew of the circumstances of that killing all those years ago.
4. The appellant left the property on 15th May 2015 after a disagreement. However, four days later, on the night of 19th May 2015, he forced his way into the complainant's flat, causing damage to a door and a window. This was in fact reflected in the subsequent plea of guilty on the behalf of the appellant to a count of criminal damage. The complainant was in the flat at the time, sleeping in his bedroom. There followed a confrontation in which the complainant sustained injury.
5. It was the prosecution case that following the disagreement (which had in fact been about the complainant's then girlfriend) the appellant had forced entry into the address whilst, on the prosecution case, the complainant was asleep, approached him in bed and punched him repeatedly to the face, causing a nose bleed and bruising and tenderness to areas of his body. The complainant was to say that the appellant threatened that he would kill him. In order to escape the assault the complainant had leapt out of the window and in consequence had sustained a fractured pelvis.
6. The evidence of the complainant, Mr Brookes, was to that effect. He explained the nature of the disagreement which had occurred on 15th May 2015 and his concern that the appellant had been carrying on with the complainant's girlfriend. Mr Brookes was to go on to say that on 19th May 2015 he had been in bed when he was then awoken by the appellant banging on the door. At that stage the complainant then telephoned the police. That recording was played to the jury and this court has itself seen a transcript of that recording.
7. It undoubtedly, on its face, lends the strongest possible support to the complainant's version of events. The 999 call which lasted over 2 minutes records that the complainant, Mr Brookes, contacting the police. He describes that the appellant, Mr Hoare, was "kicking my front door and he's shouting through my door saying 'Open the door or I'm gonna kick your door in and beat you up'". There was further discussion between Mr Brookes and the police operator and at a later stage the complainant is recorded as saying this:

"He's kicking my door, quickly come round, come... [Operator]: Yeah, yeah. Okay.

[Mr Brookes]: Please come, please, please, please, I beg you to come round now.

[Operator]: Yeah we're gonna get someone right away on blues and twos...

[Mr Brookes]: Please, I'm scared... I'm scared."

There is then further discussion between him and the operator to this effect. Brookes is urging the police to get around quickly and the operator then says:

"What's he shouting out now?

[Mr Brookes]: I think he's in my... he's in my flat now.

[Operator]: He's in your flat okay. Get yourself in a locked room and try and keep your doors closed if you can."

Then the phone goes inaudible. That precisely accorded with the complainant's evidence; and indeed the uncontradicted evidence was that the appellant had grabbed the phone from him in the bedroom.

8. According to Mr Brookes and his evidence at trial he had been on the phone to the police when the appellant came into the bedroom and was then threatened. That is why he then jumped out of the window having been punched. He had not realised the extent of his injury when he jumped from the window and ran to a neighbouring address for help. The emergency services were then called.
9. The appellant's case at trial was that he accepted that he had tried to force the door and had caused damage to the window as he let himself in. He said that he had come round to collect some possessions of his which he had left behind. According to him, he immediately saw the complainant as he entered and the complainant said: "What the fuck are you doing breaking my door?" The complainant then walked to the kitchen and retrieved a large knife which he then swung at the appellant in an attempt to stab him. The appellant tried to restrain the complainant's arms but he continued to try to stab him with the knife so the appellant then punched him in the face, causing him to drop the knife. The appellant then pushed the complainant into the bedroom and punched him again, saying he did so in order to protect himself. He then walked to the kitchen to replace the knife and at that stage heard the complainant making an emergency call. According to the appellant he then returned to the bedroom and snatched the phone from the complainant as he wanted to speak to the police himself, although in the event he did not speak to the police. He was to say he did not speak to the police because he was concerned that he might have been in trouble as he was on licence. Amongst other things, in cross-examination he was asked why he had not run away upon seeing the knife and his answer was that he did not have any time to think.
10. No defence case statement had been served prior to trial. It is said that that was done because the prosecution had not disclosed relevant evidence.
11. The appellant had of course been interviewed after he was arrested. At the outset of the interview significant statements as recorded as being made by the appellant on his initial arrest were put to him. These statements included the following:

"He came at me with a knife, it was self-defence. He jumped out of a third floor window, no wonder he broke a bone, I ain't a violent person."

Pausing there, that last answer was is by no means the whole truth because the appellant has numerous previous convictions including convictions for violence which were adduced in due course before the jury, the defence understandably not objecting to that course being taken. There was then put to him what he also said which was said:

"He came at me with a knife. He's a murderer, so if he comes at me with a knife, I'm going to shit myself."

The appellant confirmed making the above comment but also confirmed that he declined to sign to that effect. Thereafter there was a lengthy question and answer session in interview. It has to be acknowledged, as Mr Collings on behalf of the appellant frankly acknowledges, that there were a number of discrepancies between the answers given in interview; and there was at least one downright lie because in interview the appellant denied having caused the damage to the door and window but claimed it had all been accidental. There were some somewhat confused explanations about the complainant having a knife by his side which was dropped. There were also explanations of the complainant seeming to attack the appellant.

12. There were on two occasions during the course of the interview itself references in rather vague terms to the complainant having the previous conviction for murder.
13. The appellant at trial applied for the previous conviction for murder of the complainant, Mr Brookes, to be adduced in evidence. The application was based on a number of different grounds. It was said, and continues to be said, that the evidence was admissible as of right under section 98 of the Criminal Justice Act 2003 as being "to do with the alleged facts of the offence". It was alternatively said that the evidence was admissible as important explanatory evidence under the provisions of section 100(1)(a) of the Criminal Justice Act 2003, or in the alternative under section 100(1)(b) because it had substantive probative value in relation to matter which was a matter in issue in the proceedings and was of substantial importance in the context of the case as a whole.
14. The Recorder dealt with this application on separate occasions. By his first ruling, given on 27th October 2015, he indicated that ultimately he was going to defer a decision in part because of the provisions of section 76 of the Criminal Justice Act and Immigration Act 2008. That in itself is, with respect, a somewhat puzzling approach because those provisions relating to the elements of self-defence have no bearing of themselves on questions of admissibility. Having so indicated, however, the Recorder indicated:

"I do not have any difficulty in deciding that the evidence of this conviction back in 2001 is not important explanatory evidence because I think the jury can easily understand this case and it simply would not fit the facts for me to say the court or jury would find it impossible or difficult properly to understand other evidence in the case. Secondly, even if it were important explanatory evidence, its value for understanding the case as a whole has to be substantial."

The Recorder went on to say that it did not fall in that category:

"We are talking about events of a completely different nature, 14 and a bit years ago, by a young man who has no other convictions or findings of guilt recorded against him."

The Recorder then went on in some detail to reflect the alternative submission that this evidence would have substantial probative value in relation to a matter which was a matter in issue and there was a substantial importance in the case taken as a whole.

15. The matter was then returned to by the Recorder the following day. By this time and overnight a defence case statement had been served. In the course of that defence case statement, among other things, this was said:

"B [Mr Brookes] went on to the kitchen and returned armed with a knife and came towards D making a stabbing gesture. B was angry about the damage to the door.

D told him to put it down. B pretended to put the knife down but then swung at D with the knife.

Acting in self defence, with the knowledge that B had a previous conviction for murder, D punched B a number times, at least two blows to face in order to disarm B... "

16. The Recorder was not impressed by that defence statement, taking the view that it had been put in for wholly tactical purposes. The Recorder then went on to refer to the extensive discrepancies arising out of the interview of the appellant. The Recorder then went on to refer to his previous ruling with regard to section 100. He said this:

"I am going to look at the question of whether it is right to allow the evidence of Brookes' conviction in as something that affected the mind of this defendant when he was defending himself in order to render his actions reasonable and my answer to that is quite clear that if Brookes came towards this defendant with a knife, a few punches in order to disarm him are eminently reasonable and he will not need the assistance of any conviction of Stephen Brookes for murder to establish that because I will say to the jury if they think that Brookes came to the door with the knife and thereby threatened this defendant and he punched him in order to disarm him or to deter him from continuing an attack, or a threatened attack, I will tell the jury that that they may think that is entirely reasonable."

Pausing there, that is precisely how the Recorder in due course summed-up to the jury. The Recorder went on:

"He does not need the help of Mr Brookes' conviction for murder to determine that."

The Recorder then went on to deal with the second point which related to the issue whether there in fact was a knife and whether Mr Brookes' conviction for murder should be adduced in that regard. The Recorder decided that it was not of substantial importance in this context and that the case involved an exercise of judgment on the part of the court. The Recorder took the view that that evidence of the murder conviction would not assist in any substantial way. Indeed, the Recorder took the view that to induce that evidence might actually distort the jury's thinking. The Recorder said this, clearly taking a dim view of the defence application:

"I think that what is happening in this case is what I feared, that the defence... are seeking to use the greatest piece of mud to sling at Mr Brookes in the hope that it will wreck the prosecution case. I don't think it satisfies the admissibility test required under section 98, section 100 or under the defence of self-defence and therefore I rule it is not admissible."

Thus the trial proceeded. When the appellant gave his evidence in chief no mention of course was made to the previous conviction of Mr Brookes for murder. But in the course of cross-examination, in particular when the appellant was being cross-examined as to why he did not use the phone to ring the police himself, he then referred to the previous conviction of Mr Brookes' for murder, saying that he was on life licence.

17. Mr Collings submitted that that answer was understandable in the light of the cross-examination. We have seen the transcript. It is not at all obvious that that answer was necessitated by the cross-examination and in any event, and much more importantly, the Recorder, who of course had observed all that happened, took the view that this reference to the conviction for murder was entirely deliberate on the part of the appellant and in effect was gratuitously put in to his answers.
18. That at all events resulted in an application not by the prosecution but by the defence for the jury to be discharged. The Recorder refused to discharge the jury. It appears that shortly after that answer had been given a member of the jury had put in a note to the effect of asking what the effect was of the reference to Mr Brookes' having a murder conviction. That was discussed briefly by the Recorder with counsel. We have not ourselves seen any copy of the jury note and in the event the Recorder left it that he would instruct the jury, as he did in the summing-up, that the matter was to be put out of their minds for the purposes of their deliberations.
19. Before us Mr Collings has submitted that the evidence of the previous murder conviction should have been adduced at the trial. He has submitted before us that the defence was in effect having to argue the case with one hand tied behind its back in the light of the Recorder's refusal to allow this evidence to be adduced.
20. Mr Collings has argued, shortly, that the evidence was admissible under section 98, a point which had not impressed the single judge. But the real focus of his argument was that the evidence should have been admitted as being of substantive probative value, for the purposes of section 100(1)(b) of the Criminal Justice Act 2003.
21. The core of his argument is encapsulated in his skeleton arguments in this way:

"The appellant's knowledge of the fact of the murder conviction was central to his instinctive reaction, and without that fact being known to the jury the appellant was precluded from presenting all of the facts of the offence with which he was charged.

The knowledge of the conviction was central to the appellant's state of mind at the time of offence ...

In essence [the appellant] was precluded, once the issue of self-defence was raised, from allowing the jury to know and assess why he acted as he did, and the reasonableness of his actions."

22. So far as section 98 is concerned, we agree with the single judge's view. The relevance, such as it was, of the previous murder conviction is not of itself something that can bring a matter within section 98. Relevance alone is not the test. Here, the previous murder conviction of the complainant was too far removed both in point of time and in terms of relevance to be such as to "do with the facts" of this offending. Further, to the extent that it was maintained that this was important explanatory evidence, we think it was not for precisely reasons given by the Recorder. Consequently the only available gateway would be that set out in section 100 (1)(b). Was this evidence of the previous murder conviction of substantial probative value in relation to a matter of substantial importance?
23. Mr Collings, reflecting what he said in his written argument, maintains that it was. He says that goes to the state of mind of the appellant at the time he was being attacked, as he says he was being attacked, and what was in his mind is material for the purposes of considering the whole defence of self-defence, both under common law and under section 76 of the 2008 Act. Further, it is said, as it was said to the Recorder, that this also went to the credibility of the case as advanced: in particular, as to whether or not there was indeed a knife as the defence were saying.
24. In our view, the Recorder was entitled to assess the matter as he did. As he pointed out, the key issue here was whether the complainant came at the appellant with a knife. If he did or if he may have done, then that would provide a complete defence and the knowledge, if it occurred to the appellant at the time at all (and it may be noted that he stressed in interview and evidence that he had no time to think and reacted instinctively), was then really by the way. As the Recorder pointed out, the evidence of bad character would add nothing to the point. That is indeed precisely how he instructed the jury. It is understandable that he took that view point because if someone is being attacked by a person with a knife then clearly it is a justifiable response to punch back by way of self-defence.
25. As to whether that potential evidence would bear on the issue of whether or not the complainant did indeed have a knife and seek to attack the appellant with it we think that the Recorder approached the matter in the right way. The previous murder and its circumstances had been known to this appellant. That had not stopped him from continuing to fraternise with the complaint and indeed to live with him. Moreover, as the Recorder pointed out, the murder had been of a totally different kind. It had not involved a knife or anything like that, but had involved what in effect one must assume, from the limited materials before this court, was some kind of vicious and ruthless prank that went utterly wrong. All this had occurred over 14 years ago when the complainant had been only 15 and when he has had no previous convictions for violence or otherwise subsequently.
26. It is clear that the Recorder, in truth, who had the feel of the entire trial, was concerned that the defence was being conducted in a tactical way and that in effect an attempt was being made to poison the jury's mind by introduction of prejudicial material of relatively limited relevance. Whether or not that is so, we think that the Recorder was entitled to conclude that even if this evidence may have been of some probative value, it was not of substantial probative value. That was a conclusion properly open to him in the circumstances of this particular case. He also was entitled, in his discretion, thereafter to refuse to discharge the jury.
27. Moreover, the reference to the previous murder had by no means been clearly articulated in the interview as a justification for the appellant acting as he did. It is true that he made a statement to that effect to the police when arrested. But thereafter the references, such as they were, to the previous murder in the course of the interview itself were vague and not to the effect as sought to be advanced specifically at trial. The answers in interview itself had been confusing and contradictory in a number of respects and, as we have indicated, had included at least one direct lie. Yet further the evidence from the 999 call is of itself in effect damming.
28. Overall, we take the view that the Recorder was entitled to rule as he did. We are entirely satisfied overall that this conviction is safe and accordingly we dismiss this appeal.