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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 >> Lodge, R. v [2009] EWCA Crim 2651 (27 October 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/2651.html Cite as: [2009] EWCA Crim 2651

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		27th October 2009

1. MR JUSTICE KEITH: On 14th October 2008 at Blackfriars Crown Court, the appellant was convicted of an offence of robbery, which had been committed on 2nd March 2008. She had pleaded not guilty. She subsequently received a community sentence. She now appeals against her conviction with the leave of the single judge.
2. Since the only ground of appeal relates to whether the judge should have given the jury a direction about how the jury was to approach the evidence which had been given of a reprimand and warnings which the appellant had received, only a brief summary of the facts is necessary. In short, in the early hours of the morning, one of the appellant's two co-defendants, Ashley Barrett, snatched the handbag of a young woman, Kellie Lawrence, in the street. Kellie tried to get her handbag back, but had her hair pulled by the appellant. The prosecution's case was that the appellant and her other co-defendant, Jordan Green, were trying to prevent Kellie from getting her handbag back, but the defence case was that the appellant was only trying to get Kellie off Ashley because Kellie was attacking Ashley. Ashley had pleaded guilty to robbery, and the jury must have disbelieved the appellant's account and that of Jordan in order to have convicted the appellant and Jordan of robbery.
3. The appellant was born on 24th February 1991. She is therefore now 18 years old. She was just 17 when this robbery was committed. On 22nd October 2004, when she was 13 years old, she was reprimanded for an offence of assaulting a police officer in the execution of his duty, and using threatening, abusive or insulting words or behaviour. Those two offences look as if they arose out of the same incident, since both offences occurred on the same day, the day she was reprimanded. On 3rd February 2005, when she was still 13 years old, she was warned for interfering with a vehicle, but since that offence took place on 22nd November 2004, ie when the incidents which resulted in her reprimand took place, that also looks as if it arose out of the same incident. Finally, on 4th February 2008, when she was 16 but not quite 17, she was warned for two offences of assaulting a police officer in the execution of his duty. In cross-examination, the officer in charge of the case accepted that these two offences arose, in the first instance, after the appellant had been told off for being drunk, and in the second after she had been told off for smoking on a park bench.
4. The appellant's counsel, Ms Sappho Dias, who represents the appellant today as she did at the appellant's trial, wanted to know whether the judge, Judge Marron QC, was prepared to give the jury a full good character direction about the appellant. She was making the point that this was an appropriate case for such a direction because the appellant had no previous convictions, and the reprimand and the warnings she had received as a juvenile did not amount to convictions. The judge said that he had never given a full good character direction when there were reprimands and cautions, and he noted that at least some of the offences for which the appellant had been reprimanded and warned were, like robbery, offences of violence. But when pressed by Ms Dias to give an "almost" full good character direction because of the appellant's youth and because the offences could not have been all that serious for her to be reprimanded or warned rather than prosecuted, the judge said:

"Certainly character is divisible now under the 2003 Act. I occasionally do give, if there is no dishonesty on the record, I often give a partial direction, namely the credibility direction as opposed to the propensity direction. The second part of it. Yes. Okay. Is that all you have to say?"

Ms Dias replied that it was.

5. Ms Dias says that this exchange caused her to believe that in the event of the appellant electing to give evidence, the judge would be giving the jury a full good character direction. Accordingly, Ms Dias brought out the appellant's reprimand and warnings in evidence. However, although the appellant elected to give evidence, the judge did not give the jury a direction about the appellant's good character. He simply gave the following direction about Jordan's character, referring in passing to what the jury knew about the appellant's reprimand and warnings:

"We know that both of these young ladies have summary findings recorded against them. I simply want to give you a direction in relation to Ms Green as she has a caution or some kind of finding relating to an alleged offence of dishonesty; making off without payment.

There is nothing at all recorded against her by way of anything violent and, as counsel rightly said to you, she is entitled to say, even though she is just 17, that she has not behaved violently in the past and, therefore, she is less likely on this particular occasion to have behaved violently. It is something you can factor into your consideration when assessing her case."

This direction about Jordan was consistent with what the judge had told Ms Dias. If the absence of any record for dishonesty justified a "credibility" direction, so too should the absence of any record for violence justify a "propensity" direction in a case alleging violence.

6. The fact that the judge had not given the jury a good character direction despite the appellant's reprimand and warnings contrary to what Ms Dias had believed the judge would do led to this exchange between Ms Dias and the judge after the jury had returned to consider its verdicts:

"MS DIAS: Your Honour will remember that I raised with you the matter of whether or not you would consider giving a good character direction for my client. My understanding (and perhaps it is my fault) was that so long as I put in the reprimands which existed in relation to my client, you would give a good character direction which was full because she actually does not have previous convictions recorded against her. I do not know whether this was right or whether I have misunderstood your Honour.

JUDGE MARRON: I fear, in fact, it may be my fault that you have misunderstood. I do not understand how I can give a direction. Let us just take the first part of credibility when she has committed an offence of dishonesty, how I can say in fact she has always behaved honestly or, in fact, on the propensity (if I can loosely call it that) element. How can I say she does not have a propensity when she has findings against her of violence? I did not wish to give that impression at all.

MS DIAS: Your Honour, if that is the case, then that is the case and that was a ruling that you made which--

JUDGE MARRON: I did give the second defendant a propensity direction which I meant to. Yes, I did.

MS DIAS: You did. Your Honour, if that is the ruling, then it was I who [mis]understood.

JUDGE MARRON: I am sorry, Ms Dias. What I hoped to say was that you could say to the jury she is of good character in the sense that she has no previous convictions, although she has these one or two minor blemishes on her record. Did anyone else get that impression that I was going to give a good character direction?

MR GRAY: To be frank, I did not think your Honour was going to because of the facts that you mention[ed]. It is slightly difficult bearing in mind it is a robbery which involves violence and there is not really anywhere to go in respect of a direction.

JUDGE MARRON: Really, all I wanted to do was afford you a facility to be able to say to the jury, 'There are only one or two miscellaneous blemishes and otherwise, she has not any convictions' and to enable you to be able to say that. Ms Dias, I am sorry.

MS DIAS: No, your Honour. It is clearly my misunderstanding but I just wanted to be clear that that has been the ruling. If so, then obviously your Honour's ruled against that application."

No further direction was given to the jury.

7. Ms Dias now accepts that she could not reasonably have thought that the judge would give a full good character direction. Because the appellant had been reprimanded and warned for offences of violence, it could not be said that her background supported her claim that she had only used violence on this occasion to prevent Ashley being attacked by Kellie. However, Ms Dias claims that the impression which the judge gave her was that he would have given a limited good character direction to the jury, namely that the fact that the appellant had no previous convictions supported her credibility as a witness, and that that was a factor which the jury should take into account when deciding whether they believed her evidence.
8. Having considered carefully the words that Judge Marron used, we do not think that Ms Dias could reasonably have thought that the judge was saying that he would give a "credibility" direction to the jury. He was saying that he often gave a "credibility" direction when he could not give a "propensity" direction, but only if there was "no dishonesty on the record". He was not saying that he would give such a direction in this case, and in any event the circumstances in which he said that he often gave a "credibility" direction, namely if there was "no dishonesty on the record", did not apply here. The appellant had a warning for interfering with a vehicle.
9. We turn, then, to what Ms Dias could have got out of what the judge said. In the discussion which took place after the jury had retired to consider its verdicts, the judge explained what he had been intending to get across to Ms Dias, which was that she was permitted to describe the appellant as having no previous convictions, although she had "these one or two blemishes" on her record. In other words, he was saying that he had not been intending to tell Ms Dias the direction he was proposing to give about the relevance or otherwise of the appellant's reprimand and warnings, but rather to tell her how she could characterise the reprimand and warnings in her address to the jury.
10. There are two things to be said about that. First, we do not think that the judge managed to get that across to Ms Dias. Indeed, the judge himself said that he feared that it may have been his fault if she had misunderstood him. But secondly, it is a little difficult to see what use Ms Dias could have made of what the judge says he was trying to get across to her. If all he was talking about was how she could describe the appellant's reprimand and warnings, and if he was not telling her that this was an appropriate case in which he could give a "credibility" direction, what was the point in Ms Dias letting the jury know that the appellant had been in trouble with the police on a number of occasions when she behaved violently and on one occasion when she had behaved dishonestly, if all she could get out of it was that her conduct on those occasions had not resulted in her being prosecuted? Having said that, although the judge did not get across to Ms Dias what he was trying to get across to her, and although it would in any event would have been of little help to her, the inescapable fact is that the judge did not in fact give Ms Dias any indication that he would be giving the jury a good character direction in respect of the appellant.
11. Ms Dias says that, even if she could not reasonably have got the impression that the judge would be giving the jury a "credibility" direction, the jury should nevertheless have been given such a direction. She relies on the case of R v Martin [2000] 2 Cr App R 42. That case concerned a defendant without previous convictions but who had twice been cautioned by the police - the adult equivalent of the reprimand and the warnings which the appellant got. Like reprimands and warnings, cautions are only administered when the offender admits the offence. But the case only dealt with a "propensity" direction, the court agreeing with the trial judge that the cautions which the defendant had received would have made it absurd and, more than that, misleading for a "propensity" direction to be given. The case is not authority one way or the other for whether a "credibility" direction should be given despite the cautions which the defendant had received. Whether the appellant in our case should have been given a "credibility" direction was within the discretion of the judge, and since one of the appellant's warnings was for an offence of dishonesty, we do not think it can be said that the judge was wrong to decide not to give a "credibility" direction.
12. In the event, though, the judge chose not to give the jury any direction at all. We have to say that, in our view, that was not an option. The jury had heard about the appellant's reprimand and warnings. That evidence was evidence of misconduct on her part, and therefore it was evidence of bad character. It was admissible under section 101(1)(b) of the Criminal Justice Act 2003 because it had been elicited in cross-examination from the officer in charge of the case by Ms Dias. The jury therefore needed some guidance on the use to which the evidence might be put. The jury did not get that.
13. In the circumstances, the guidance which the jury should have got was the conventional guidance which is given when the jury has heard evidence of the bad character of the defendant. The judge should have given the jury a clear warning against the danger of placing undue reliance on the appellant's reprimand and warnings. He should have said that the evidence of bad character could not be used to bolster a weak case, and that the jury should ignore her reprimand and warnings if they thought that the case against her was a weak one. The jury should also have been told that they should not assume that she was guilty simply because she had been reprimanded or warned about her behaviour in the past, and that the jury had in this case only been told about the trouble the appellant had been in in the past because the defence wanted the jury to know about her background. Finally, the jury should have been told that this was not a case in which the prosecution was saying that just because she had been violent in the past, it was unlikely that she had only been violent on this occasion to prevent Ashley being attacked by Kellie.
14. What was the effect of the jury not having been given such a direction? The answer is that we cannot say. For all we know, the jury may have placed inappropriate weight on the appellant's reprimand and warnings and may well have used them as if they showed a propensity on her part to act violently otherwise than in defence of a friend. In the circumstances, and with some misgivings, we have decided that we have no alternative but to conclude that the appellant's conviction was unsafe and must therefore be quashed. We shall hear from counsel whether we should order the appellant to be retried.
15. LORD JUSTICE GOLDRING: What is the view Mr Gray?
16. MR GRAY: Well...
17. LORD JUSTICE GOLDRING: We should in the circumstances need a little persuasion to order a retrial.
18. MR GRAY: I would be asking for a retrial on the matter. Certainly, now that direction has been given and the judgment made in relation to the directions there is no change that would be expected in the evidence before the court, as was at trial.
19. MR JUSTICE KEITH: She received a community order. One of the requirements of that community order was an unpaid work requirement of 150 hours. Has she done that?
20. MR GRAY: I am not able to assist the court on that, I am sorry.
21. MR JUSTICE KEITH: Why not?
22. MR GRAY: I have not taken instructions and I should have done.
23. MR JUSTICE KEITH: The single judge gave leave. Therefore, there was always a chance that the court might quash the conviction. Therefore, the court would have to decide whether or not to order a retrial. Therefore, one of the factors which the court would obviously take into account is whether or not the sentence had in effect been served. Therefore, the prosecution could be expected to have made enquires.
24. MR GRAY: I regret they should have been.
25. MR JUSTICE KEITH: That is why I asked you why. I was not intending to be judgmental, it was important.
26. MR GRAY: It should have been information that I give to the court.
27. LORD JUSTICE GOLDRING: Ms Dias?
28. MS DIAS: I have made enquiries and I am told that the work has finished. She has also had additional help because of her psychiatric problems. I told your Lordships in my skeleton about the fact that she was a girl who had (inaudible) home life on a number of occasions and that is the ongoing treatment.
29. LORD JUSTICE GOLDRING: Thank you Ms Dias.
30. In our view, it is not in the interests of justice to order a retrial. We shall therefore not do so. The conviction is quashed.