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||Neutral Citation Number:  EWCA Crim 3233
||Case No: 200403040D3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
His Honour Judge Moss QC
Central Criminal Court T20037584
||Royal Courts of Justice
Strand, London, WC2A 2LL
||14th December 2005
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE HOOPER
THE HONOURABLE MR JUSTICE HOLMAN
THE HONOURABLE MR JUSTICE FULFORD
|| DENNIS ROBINSON
||- and -
(Transcript of the Handed Down Judgment of
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Mr J Dein QC and Miss A Byrnes for the Appellant
Miss S O'Neill QC and Mr M F R Holland for The Crown
HTML VERSION OF JUDGMENT
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LORD JUSTICE HOOPER :
- On 28.4.04, at the Central Criminal Court (HHJ Moss QC and a jury), Dennis Robinson, the appellant, was convicted of the murder of Lyndon Davis. The indictment contained two counts. On Count 1 the appellant, together with his former girlfriend, Karen Maitland, faced an allegation of murder. Count 2 charged Maitland alone with perverting the course of justice.
- At the conclusion of the prosecution case, the learned trial judge directed the acquittal of Maitland on count 1. The jury were unable to reach a verdict in respect of count 2.
- In the now sole ground of appeal it is submitted that the trial judge misdirected the jury in relation to the evidence of the appellant's bad character adduced or given by Maitland. Both defendants ran what is conventionally called a cut-throat defence. Both denied murder and both "pointed the finger of blame" at the other. Additionally Maitland ran the defence of duress on count 2, alleging that she was forced to assist by threats from the appellant.
- We were particularly assisted by the skeleton argument of Mr Dein QC for the appellant and we are very grateful to him. We have relied on it extensively for the background and facts of the case.
- At approximately 5.30am on 3.5.03, the burnt body of Lyndon Davis was discovered in Andrews Road, Hackney. It was the prosecution's case that the appellant had murdered Davis at the appellant's home at 215 Dalston Lane, Hackney, and that, together with his friend Everton Husbands, he had deposited the body in Andrews Road before setting fire to it in an attempt to remove evidence. Maitland assisted the appellant by fetching a plastic bag which was put over the deceased's head and by helping to clean the blood from around the flat. Another man, Carey Bent, had also assisted in cleaning the flat.
- Although no specific motive was ever advanced by the prosecution, it was common ground that the deceased was a dealer in crack cocaine and a former friend of the appellant, who was himself a cannabis dealer. The suggestion was that the appellant murdered Davis in an attempt to gain "respect" or perhaps in order to take over his crack cocaine business.
- The prosecution case was substantiated in the main by reference to telephone evidence, both of calls made and cell site analysis, local borough CCTV evidence, forensic scientific search evidence, fingerprint evidence and the post-mortem examination. In addition, the prosecution relied upon the testimony of Carey Bent, who, together with Everton Husbands, had pleaded guilty at an early stage to perverting the course of justice for their part in the events of that evening.
- At approximately 9pm on 2.3.03, Lyndon Davis left his home in order to go out. He collected his girlfriend and her friend and drove around the Hackney area delivering crack cocaine. Mobile telephone records show that his phone was in contact with that of the appellant at 9.20pm and 10.35pm. Davis attended 215 Dalston Lane between 10 and 11pm for approximately 10-15 minutes.
- At approximately 1am, Davis dropped his girlfriend at her sister's house. Thereafter, mobile phone and cell site analysis shows calls between Davis' phone and that of the appellant, with the former travelling towards 215 Dalston Lane, the apparent location of the appellant's phone. It was the prosecution case that the appellant invited Davis to his, the appellant's flat, where he was to murder him.
- The last call made by Davis' mobile phone was at 2.09am on 3.5.03, apparently from the vicinity of 215 Dalston Lane. According to the prosecution, Davis was murdered by the appellant between that time and 2.26am. This was because at 2.26am there began a series of calls made from the appellant's phone to that of his friend Everton Husbands. Husbands was living in Enfield and his movements were tracked, by reference to cell site analysis, from his home to 215 Dalston Lane. This, said the prosecution, was in response to a request from the appellant for urgent assistance in removing the evidence of the murder which had taken place.
- Before Husbands got to the flat, however, Carey Bent, the appellant's lodger arrived home unexpectedly. The appellant opened the door and Bent saw the motionless body of Lyndon Davis lying on the hall floor. The appellant asked for Bent's assistance and, out of fear of the situation generally and the appellant in particular, Bent helped to roll the deceased in a sheet and load the body into the boot of the newly-arrived Everton Husband's car. Karen Maitland was cleaning the flat.
- Husbands and the appellant then drove off to Andrews Road where the body was dumped. By reference to local CCTV this was at approximately 3.23am. The men then returned to Dalston Lane where an attempt was made to move the deceased's BMW vehicle from where it was parked outside the flat. It would not start and a number of telephone calls were made by the appellant and Husbands in search of jump leads. At approximately 3.39am Husbands purchased a set from a Texaco petrol station. This was, however, to no avail and eventually the appellant, Husbands, Bent and two innocent passers-by pushed the vehicle into nearby Clapton Square, where it was discovered later on that day. CCTV evidence timed this activity at approximately 4am.
- The appellant, Maitland and Husbands then left Dalston Lane in Husbands' vehicle. A series of calls to Bent's mobile from that of the appellant were, according to the prosecution, to ensure that Bent was continuing to clean the flat and not raising the alarm. At approximately 4.21am Husbands filled a canister with petrol at a BP garage and the three returned, still in Husbands' vehicle, to Andrews Road. There the deceased's body was set alight at approximately 4.35am. It was the prosecution case that this was all done at the behest of the appellant.
- Cell site analysis then tracked the movement of the appellant from the area of Andrews Road to Enfield and the home address of Everton Husbands. There, the appellant changed his clothes and disposed of the murder weapon, a hammer, before returning, still accompanied by Husbands and Maitland, to 215 Dalston Lane.
- The post-mortem examination revealed that Lyndon Davis died as a result of multiple head injuries. There were in the region of thirty three separate wounds to his scalp and face, some of which penetrated the skull. The possibility of asphyxiation by means of the plastic bag which had been applied to his head could not be excluded.
- It was the prosecution case that the injuries were inflicted to the deceased by the appellant, using a claw hammer. Upon being directed there by the appellant in his interview, the police found such a hammer at the work place of Everton Husbands, although no forensic scientific link was established between it and the murder.
- The prosecution further alleged that the plastic bag was placed on Davis' head either by Maitland, who had admitted as much to Everton Husbands, or by the appellant once Maitland had fetched a bag for that specific purpose. It was in those circumstances that Maitland was originally indicted for murder: the case against her was put on the basis of joint enterprise, although a successful submission of no case to answer on Count 1 was made on Maitland's behalf at the close of the prosecution case.
- The appellant was arrested on 18.6.03. During the search of his address, traces of the deceased's blood were discovered in the hall and kitchen/living room of the flat. He was taken to Stoke Newington Police Station where he was interviewed in the presence of a solicitor for three days.
- The appellant said that Lyndon Davis had been a good friend of his and that he had known Davis since the latter's arrival from Jamaica about four years earlier. He also said that he knew Everton Husbands and that he had seen Husbands the previous day.
- Asked to account for his movements on 2nd and 3rd May, the appellant had no real recollection of where he had been. He thought that he would most probably have been at home or with Husbands in Enfield. He had learned of Davis' death from someone he knew called Gee (Garcia Muir, the deceased's brother's ex girlfriend and Maitland's cousin) and had seen it confirmed in the Hackney Gazette.
- He had known that Davis was a crack dealer and had last seen him on either Thursday 1st May or Friday 2nd May at about 3 or 4pm. He denied having had any part in the death of Davis.
- The appellant was told that blood had been recovered from the door-frame at 215 Dalston Lane. He suggested that he, the appellant, and Lyndon Davis might once have done some boxing at the flat.
- The appellant was told that the police had obtained CCTV footage of the deceased's car being pushed in Clapton Square, to which the appellant made no comment. Upon being told later that his fingerprints had been discovered on the vehicle, the appellant said that he had, on an earlier occasion, helped Davis to push his car.
- The appellant then continued to make no comment to the other questions that were put to him. By way of explanation, he said that he was concerned for the safety of his children.
- The police then told the appellant that Husbands, who by now had also been arrested, had submitted a prepared statement to the police in which he stated that the appellant had killed Davis and asked Husbands to help him get rid of the body. The appellant continued to make no comment.
- In a further interview on the evening of 20th June, the appellant stated that Husbands had killed Davis in order to take over the latter's crack-dealing business. He said that it was Husbands who had purchased the petrol that was used to set fire to the body and that Husbands had hidden the murder weapon, a hammer, at the school at which he worked.
- The appellant stated that, with Husbands at the time of the murder was a Yardie, whom the appellant was not prepared to name. He stated that Maitland was not involved and did not mention the presence of Carey Bent.
- The appellant admitted that he had carried Davis' body to Husbands' car and had driven off with him to Andrews Road. They had later returned and set fire to the body before going to Husbands' address. This was all at the behest of Husbands. The appellant further stated that he had telephoned Davis and invited him to Dalston Lane at the request of Husbands and the Yardie.
- The accounts of Maitland and Bent were both put to the appellant, who made no comment.
- The police also found Karen Maitland at 215 Dalston Lane on 18.6.03. Originally arrested for possessing cannabis, she was taken to Shoreditch Police Station where she was cautioned for that offence. Maitland was then treated as a significant witness by the police. However, the police soon realised that Maitland had been living with the appellant at Dalston Lane at the time of the murder. On 20.6.03, she was arrested for murder.
- Maitland was then interviewed under caution in the presence of a solicitor. She initially said that she had not been present when the murder had taken place and that she knew nothing about it. Later that evening she elected to make no comment to questions put to her. Maitland was informed that Husbands had told police that she had told him that she had put a bag over the head of Lyndon Davis.
- When she was interviewed the following day, Maitland told the police that she had been at home with the appellant at 215 Dalston Lane in the bedroom. The appellant left the bedroom and she heard "stumbling". When she came out, Davis was on the floor. She stated that the appellant had put the bag over Davis' head.
- Maitland said that the appellant asked her to clean up the blood and had telephoned Husbands in order to help him to dispose of the body. She stated that the appellant asked her to get a bag from the drawer. This, she knew, was to be put over Davis' head. She later said that this was most probably to stop Davis breathing.
- Maitland stated that the appellant, Husbands and Bent had carried Davis' body from the flat whilst she remained there, cleaning. She said that throughout she had been under the influence of the appellant, whom she referred to as a "monster". Later she had gone in the car with the appellant and Husbands to Husbands' address in Enfield. On the way, Husbands bought some petrol which he said was to be thrown over Davis' body. This was done out of her sight. Once at Husbands' address, the appellant changed his clothes and the three returned to Dalston Lane, where Bent was still cleaning.
- Maitland said that she then left Dalston Lane for a period of two weeks, coming home only because the appellant threatened to beat her if she did not. In a later interview, Maitland stated that she had in fact seen the appellant hitting Davis with the hammer
- The appellant denied murdering Lyndon Davis but at trial advanced an account different from that set out in his police interviews. It was his case that he and Lyndon Davis had always been friends. Davis had been to the appellant's flat between 10 and 11pm on 2.5.03 in order to supply him and Maitland with a little crack cocaine: that was the last time the appellant had seen him alive. Just before 2am on 3.5.03, Maitland let two men into the flat. They were Yardie friends from the same part of Jamaica that she came from and they were there to conduct some business involving drugs. One of the men was in possession of a firearm. Their arrival came as no surprise to the defendant as this had happened before. Maitland was an illegal overstayer with a somewhat shadowy past. She was also a user of Class A drugs who mixed in Yardie circles with which the appellant had no involvement. The appellant was given some crack cocaine and he went outside to smoke it.
- It was whilst the appellant was outside that his mobile phone was used by someone else, possibly Maitland, to telephone Lyndon Davis and, it seems, Everton Husbands. When the appellant returned to his flat, he was horrified to see the body of his friend on the floor. Immediately terrified, and under threat from the still-present, armed Yardies that they knew where his children lived, the appellant did as he was told, namely to telephone Husbands and to get rid of the body.
- Thereafter, the appellant's account of events is broadly in keeping with that of the prosecution, save that he disputes that he was in charge. On the contrary, it was his case that Maitland and Husbands were controlling the situation.
- The appellant accepted that the contents of his police interviews were lies: these were told in order to protect his family and in response to the lies being told to the police by Husbands, of which the appellant was informed.
- He refuted the suggestion made on her behalf that Maitland was dominated by him both physically and emotionally and stated that she was always free to come and go as she pleased. His evidence in this regard was supported by that of Garcia Muir, Maitland's cousin and a prosecution witness, who similarly rejected such suggestions advanced on Maitland's behalf. It was also supported, to a certain extent, by Rudolph Flemmings, a defence witness and boyfriend of Maitland.
- Maitland, giving evidence, relied upon the defence of duress. On the evening in question she was at home with the appellant in the bedroom at 215 Dalston Lane. At some point the appellant left the room and she heard what she described as "stumbling". She then heard a voice which she recognised as that of the deceased asking the appellant what the problem was. The last thing she heard before she left the room was the appellant calling her. When she went out into the hallway she came upon the appellant striking the deceased repeatedly with a hammer. The deceased was lying on the floor. The appellant told her to fetch a plastic bag, which she did. He tied this around the deceased's head. Carey Bent then arrived home and she and Bent were told by the appellant to clean the flat. Everton Husbands, who had been telephoned several times by the appellant, appeared and assisted the appellant to remove the body of the deceased. Thereafter it was the appellant who took charge and whose idea it ultimately was to set fire to the body of the deceased.
- Maitland asserted that the reason she became involved in cleaning the flat was because she was in fear of her own life were she not to comply with the appellant's requests. The basis of this fear was the nature of the relationship she had with him. Maitland described at considerable length her troubled and violent upbringing in Jamaica. She stated that, when she first met the appellant, the relationship seemed healthy and normal. After a short time, however, the appellant began to abuse her emotionally and physically, often beating her and locking her both in and out of the flat. She lived in fear of him but felt that she had no other place to go. This, combined with the fact that she witnessed the appellant murder a man who had been his friend, led Maitland to do what she did following the murder.
- She refuted the appellant's case as put to her by his counsel. Although she was cross-examined to some extent by the prosecution in relation to her assertion of duress in relation to count 2, her account of the murder was expressly accepted by the crown for whom Maitland was, of course, the only eyewitness to the crime.
- During the course of the prosecution case, the defendants were running defences which were mutually inconsistent. Put simply, each was blaming the other. Following the departure of Maitland from count 1, she continued to elicit evidence of the appellant's bad character in order to bolster her defence to count 2. Mr Dein accepted that the evidence of the appellant's bad character was admissible. He also submits that the evidence would not have been admissible if he had been tried alone. Subject to one caveat, Miss O'Neill QC agrees with that proposition. The ground of appeal relates to the manner in which the trial judge directed the jury about that evidence.
- During the hearing of the appeal we considered a list of the attacks on the appellant's character adduced, or given in evidence, by Maitland. By the end of the hearing the agreed list read as follows (the references are to the summing-up):
i) The presence of a Stanley knife and holder and a 35cm knife from the appellant's bedroom, coupled with cross-examination about the knife (31G and 78B);
ii) The presence of a club or lump hammer from the appellant's kitchen was similarly elicited (32A);
iii) The appellant's fingerprints were identified on the magazine of a firearm which was found by the police in Husbands' home (34E-35A);
iv) When Garcia Muir and Carey Bent were cross-examined by Maitland's counsel, they gave challenged evidence about the appellant's violence towards her (39A-F; 54D-G);
v) Maitland gave challenged evidence that the appellant beat her with a belt, slippers and fists (100D; 108E-F);
vi) Maitland said that he had kicked her whilst she was pregnant and that she had suffered a miscarriage and this was challenged (80A);
vii) Maitland gave evidence that the appellant had allowed his friend Kevin to use her sexually (101B-E);
viii) Details of the appellant's rape conviction were adduced in evidence (80E; 92F));
ix) Maitland gave evidence that the appellant told her that he had killed before (102D).
- We turn to the summing-up. The learned trial judge summarised the respective cases of the two defendants before him and gave the following direction:
"How do you approach that conflict? You should examine their evidence with particular care because each, in saying what they do, may be more concerned about protecting themselves than speaking the truth and that is an aspect which you should bear in mind, but you must also remember the following:
First, that you must, as I directed you, consider the case for and against each defendant quite separately.
Second: that you must decide the case of each defendant on all the evidence, including that of the co-defendant.
Third: that while bearing in mind when considering the evidence of each defendant that they may have an interest to serve, nevertheless you must assess the evidence of each of them in the same way as any other witness in the case." (Underlining added)
- In the words which we have underlined, the judge was telling the jury that all the evidence could be taken into account when considering the case of each defendant. Thus, when considering the case against the appellant, the jury were being told that they could take into account i) to ix) above. The only restriction on the use of the bad character evidence related to the conviction for rape (in contrast to the details). The judge said:
"What is the relevance of the defendant's previous convictions in this case? The only reason that you have heard them is so that you may have knowledge of the character of the defendant who has made this attack, because it may assist you to judge the truthfulness of his evidence when you come to consider this matter. What you must not do is automatically assume that he is guilty or that he is not telling the truth, just because he has previous convictions. His convictions are not relevant at all to the likelihood of his having committed the offence and nor are they evidence that he committed the offence to which he is now on trial. They are relevant only as to whether you can believe him. You do not have to allow these convictions to affect your judgment at all and it is for you to decide the extent to which, if at all, his previous convictions help you about that."
- Mr Dein does not criticise this direction.
- He submits that the jury should have been told that the material summarised in paragraphs i) to ix) had no relevance to the appellant's case and had to be ignored when reaching their verdict in the appellant's case.
- It is difficult to see how the judge could have done that without carefully identifying the evidence summarised in these paragraphs either as part of a general direction or when going through the evidence in the case. The judge would also have to distinguish that evidence from the evidence given by the co-defendant directly implicating the appellant in the murder. Subject to the third of the three directions we have set out above, the jury were entitled to give what weight they thought appropriate to Maitland's account of the appellant's involvement in the murder. Thus the jury would be told, if Mr Dein is right, to ignore evidence of the appellant's bad character as adduced by, or as given by, Maitland but to take into account her evidence directly implicating him in the murder.
- The complications do not end there. In assessing the credibility of Maitland's evidence against the appellant that he was the murderer and not her and that she merely helped him out of fear, would the jury be entitled to take into account her evidence of being frightened of him? They must be able to take it into account when reaching their verdict in her case, but would they have to ignore it when considering her credibility as part of their deliberations in the appellant's case? Mr Dein would say "Yes". If Mr Dein is right, the jury would have to ignore Maitland's account of an abusive relationship with the appellant when considering whether to believe her evidence that the appellant was the murderer, but take it into account when considering her defence of duress.
- If the judge had given the direction for which Mr Dein contends, he would have to have given a corresponding direction for Maitland, identifying the equivalent evidence given or led by the appellant. In this case that might not have been too difficult, but one can easily imagine cases where the complications would multiply, particularly if the jury are considering two or more defendants who remain facing a count of murder.
- In this case there would be the added complication that the jury would be able to take into account (as Mr Dein concedes) the previous convictions when assessing the credibility of the appellant.
- Absent any authority, we take the view that the direction sought by Mr Dein would require the jury to indulge in the kind of "mental gymnastics" which even a judge might find difficult to perform, for very little if any benefit to the appellant.
- Ms O'Neill QC submits that in a case like the present the jury should be entitled to consider all the evidence, giving it such weight as they think appropriate and bearing in mind that each defendant may have an interest to serve in giving evidence against the other. Subject to being required to reach a different conclusion by reason of authority, we see much force in that argument.
- Our preliminary view is fortified by what happened after the challenged direction had been given. The judge said (at page 42):
"Is there any matter of law which any of learned counsel want to raise with me at this stage, following my directions on the law?'"
- Mr Kay QC, who appeared for the appellant at trial, said that there was not. If there was an error in the summing-up on this aspect of the case, it did not strike very experienced leading counsel at the time. If Mr Kay had thought that this direction was unfair to the defendant, one would have thought that he would have intervened and asked for a correction (assuming that the issue had not been considered before the start of the summing-up). The absence of intervention is not decisive but is indicative of the views taken by Mr Kay. We should add that the Court made this point when granting leave to appeal.
- We turn to the authorities. In Randall  UKHL 69 Lord Steyn said in paragraph 35 (which was obiter):
"For the avoidance of doubt I would further add that in my view where evidence of propensity of a co-accused is relevant to a fact in issue between the Crown and the other accused it is not necessary for a trial judge to direct the jury to ignore that evidence in considering the case against the co-accused. Justice does not require that such a direction be given. Moreover, such a direction would needlessly perplex juries."
- Their Lordships agreed with the opinion given by Lord Steyn. In the words of Lord Bingham, he "wholly" agreed with the opinion.
- In Price  EWCA Crim 1359, in which I gave the judgment of the Court, we followed and applied paragraph 35. One of the grounds of appeal in that case was that the trial judge should, as in the instant case, have directed the jury, in effect, to ignore the evidence of the appellant's violence and aggressiveness, evidence relied upon by the co-defendant. The judge had told the jury
"… the relevance of any previous violence or aggressiveness on other occasions is not to prove: 'Well, he did it or he said it before, so he must have done it on the 12th and 13th November'; its relevance is to provide you with as complete a picture as possible of what manner of man you are trying"
- Mr Dein does not seek to distinguish the facts in Price. He submits that Price is wrong and should not be followed. To support that submission he principally relied on two later cases: Mertens  Crim. L.R. 301;  EWCA Crim 2252 and Murrell  EWCA Crim 382.
- Prior to Price but unknown to the Court another division of the Court presided over by Rix LJ had interpreted paragraph 35 in the same way: Clive B  EWCA Crim 1254;  2 Cr App R 34. We return to that case later.
- In Mertens two defendants each charged with murder sought to blame each other. The appellant called evidence of the previous conviction for manslaughter of his co-accused Billia and appealed upon the basis that the trial judge had wrongly directed the jury that this evidence was not relevant to the co-accused's case. Billia was acquitted. May LJ said:
"13. The appeal centres on the fact that Billia had a previous conviction. The appellant relied on his own good character. It was he who introduced into evidence the fact that, as he said, Billia was the more likely perpetrator of this murder given his bad character. In particular he relied on and called evidence about Billia's previous conviction after a murder trial at the Central Criminal Court, when Billia was convicted of manslaughter in 1993 of a man called John Fanning, a homosexual companion of Billia's, in circumstances that in some respects bore some resemblance to the facts of the present case. "
- The trial judge had directed the jury:
"... Mr Billia's previous conviction for the manslaughter of John Fanning. I am going to ask you to be very careful how you will use the evidence about this, and I am going to suggest that you treat it quite differently when you are considering the prosecution's case against Mr Billia himself and when you are considering the prosecution's case against Mr Mertens. When you are considering the prosecution's case against Mr Billia, I suggest you disregard it altogether. It does not form part of the prosecution's case against Mr Billia at all. Mr Ferguson asked yesterday in his final speech, rhetorically, 'Why have the prosecution not called the evidence about the killing of John Fanning? Why was it Mr Mertens' team who did that? There is a very simple answer to that question. The prosecution could not have called that evidence themselves. It simply is not admissible or relevant evidence to support the prosecution's case." (Underlining added)
- Counsel for Mertens submitted that in the light of paragraph 35 of Randall, the judge should have directed the jury that they were entitled to take into account Billia's conviction for manslaughter when considering the case against Billia.
- Dismissing the appeal, the Court held that the main thrust of Randall was that where one co-accused has previous convictions which may indicate, or may be regarded as indicating, a propensity relevant to a cut-throat defence, that evidence is relevant in the case of the other co-accused. As far as paragraph 35 was concerned, May LJ stated:
"69. We have been troubled about the extent and relevance of paragraph 35 of Randall. Paragraph 35 includes this:
'For the avoidance of doubt I would further add that in my view where evidence of propensity of a co-accused is relevant to a fact in issue between the Crown and the other accused…'
If one emphasises the word "relevant", it is to be recalled that Lord Steyn had an extended passage on the subject of relevance and that relevance was discussed in the context of similar fact evidence. As Mr Waters [counsel for the respondent] submits, in the case against a single defendant propensity will never be relevant and admissible unless the facts going to propensity can be elevated to being admissible similar fact evidence. Accordingly, where evidence of propensity of a co-accused is relevant, it may perhaps be read as referring to relevance because the evidence is admissible as similar fact evidence"
- May LJ continued:
"70. If, however, we were not sure that that is the correct interpretation in the context of this case of paragraph 35, we nevertheless have to consider that this judge was faced with having to sum the case up fairly as between both defendants. We accept the submission of Mr Waters that, in the circumstances of this case, he could not have directed the jury that Billia's conviction was relevantly probative in the case against Billia. He could not do that because it was accepted not to be admissible similar fact evidence in his case. So far as the case of Mr Mertens, the appellant, was concerned, this was evidence that Mr Mertens was entitled to rely upon. In substance the judge said as much on page 47 of volume 3 and page 16 of volume 4, where he gave what we read as a clear propensity direction. Judges have to tailor their summing-ups to the circumstances of individual cases. They have to be fair to each or every defendant before the court. In the present case, in our judgment, this judge did just that, and summing up the case against Billia, as we think he had to, in the way that he did, he also in substance we think did what the House of Lords said he should do in Randall, at least so far as it was tailored to the present case.
71. For these reasons, in our judgment, there was no misdirection by this judge in this case."
- Mr Dein submits that the Court in paragraph 69 interpreted Lord Steyn's dicta as having application only in a case where the bad character of a co-accused was admissible at the behest of the Crown, for example under the similar fact doctrine.
- We have doubts about this passage, which Mr Dein accepts was obiter. To make the point clearer, paragraph 35 of Randall can be rewritten:
"… where evidence of propensity of D1 is relevant to a fact in issue between the Crown and D2 it is not necessary for a trial judge to direct the jury to ignore that evidence in considering the case against D1."
- Similarly rewriting the last part of the cited passage from Mertens, it would read:
"Accordingly, where evidence of propensity of D1 is relevant, it may perhaps be read as referring to relevance because the evidence is admissible [against D1] as similar fact evidence"
- With all respect to May LJ, we do not think that this is right. If the evidence is, in any event, admissible at the behest of the Crown, then there was no need for Lord Steyn to address the issue. The difficulty arises only when the evidence is not admissible at the behest of the Crown.
- Price was not cited to the Court.
- We turn to Murrell  EWCA Crim 382. The appellant and two others were charged with importing cocaine. The co-defendants blamed the appellant and had at trial elicited evidence of his previous conviction for importing cocaine and the finding of firearms and ammunition at his home address. The Recorder admitted the evidence but directed the jury that they should disregard it in considering the appellant's case. Lord Woolf CJ summarised how the case was summed up:
"29. When the Recorder came to sum up, no doubt taking his lead from the way the case had been presented on behalf of the Crown, he made it clear that the evidence of the previous conviction and the finding of the gun were relevant to the cases against Flook and Ellis, but not part of the case against the appellant….."
- The appellant unsuccessfully appealed on the basis that the evidence of the items seized was inadmissible.
- The Court of Appeal, holding that the evidence was properly admitted, also expressly approved the trial judge's direction to the jury. At paragraph 24, Lord Woolf stated:
"It is, however, important to have in mind that, subject to Lord Steyn's comments [at paragraph 35 of Randall] that we have cited, the evidence was admissible not as against the appellant. If he had been tried alone, the evidence would not have been admitted; although it is right to point out that the case against him would still have been a very strong case indeed. It was admissible in the case against each of his co-accused."
- At paragraph 28, Lord Woolf said:
"We recognise the difficulty that if what Lord Steyn said in Randall is applied too literally, the person against whom evidence is admitted, which would not normally be admitted, would be prejudiced. The trial judge always has to do his best to ensure that justice is done to each defendant before him. This case provides a good example of how justice can be done."
- In paragraph 29, Lord Woolf continued:
"Without causing perplexity to the jury, the judge can indicate the Crown's case against each. It is perfectly possible for a judge to describe the Crown's case against one accused without referring to the evidence which is admissible in support of the case of the co-accused, and then, as this Recorder did, make clear the relevance of the evidence so far as the co-accused are concerned. This may help to minimize the prejudice that may be caused in any joint trial because evidence is admissible as against one accused which is not admissible against another."
- Price was cited to the Court. Lord Woolf said:
"26. The approach of Lord Steyn in Randall was endorsed and applied by this court in the case of R v Price  EWCA Crim 1359. Price was preceded by Clive B  EWCA Crim 1254, in which Rix LJ analysed in detail not only the decision in Randall but also the decision in the other cases and he applied what Lord Steyn had said at paragraph 35. Rix LJ went on to say at paragraph 56:
'In other words if the propensity of one defendant becomes relevant as between his co-accused and the Crown, no distinction is to be attempted in viewing the position as between the former and the Crown. Thus where propensity is admitted for the sake of a co-defendant's defence, the Crown becomes the beneficiary of that. As Lord Steyn says, that is not unjust and the alternative would be unnecessarily perplexing.'
'A question may, however, be raised as to the ramifications of this position. In the more normal case where previous convictions come to be admitted for reasons other than their relevance to a co-accused's defence, a model direction requires the judge to warn the jury that they are not relevant to 'the likelihood of his having committed this offence'."
- Lord Woolf noted the difficulty which May LJ in Mertens had had with paragraph 35 and quoted part of paragraph 70.
- In both Mertens and Murrell the trial judges had directed the jury, in effect, to ignore the evidence of the bad character of D1 adduced by the co-defendant D2 (and inadmissible at the behest of the prosecution) when considering the case against D1. Those directions were approved. In Mertens the Court held in effect that D2 could not insist that the trial judge direct the jury to consider the bad character evidence of D1 when considering the case against D1. In this case Mr Dein submits that the appellant (D1 in the example) is entitled as a matter of law to a direction of the kind in Merten and Murrell and that Price is therefore wrong. He relies also on the fact that Lord Woolf, in paragraph 29, did not think that such a direction would be perplexing. He relies on the reference by May LJ to trial judges having to be fair to each and every defendant before the court.
- In our view Price, relying on paragraph 35 of Randall, makes it clear that the kind of direction given by the trial judge in this case is not a misdirection. Price is binding on us. Whilst accepting that Mertens establishes that it would not be a misdirection to give the direction sought by Mr Dein in the present case, that does not mean that Price is wrong. The effect of Mertens supported by Murrell is that trial judges should consider carefully how the interests of justice for all the defendants may properly be met in a joint "cut-throat" trial. But, in accordance with Randall, the judge must also consider the necessity to give directions which will not "needlessly perplex juries". If juries are needlessly perplexed then the defendants in their care will not receive a fair trial.
- We do not believe that the trial judge in the instant case discussed the matter with counsel before summing-up. If he did not, it would have been better if he had. However, the fact that Mr Kay did not object suggests that he thought the summing-up was not unfair to the appellant. If we had taken the view that the appellant did not, as a result of the direction, receive a fair trial, we would have been minded to quash the conviction on the basis that Price should be read as being qualified by Mertens and Murrell. But we do not take that view. The direction given by HHJ Moss was fair in that a direction of the kind sought by Mr Dein would have needlessly perplexed the jury for the reasons set out in paragraphs 51 and follows with no real benefit to the appellant.
- We add this before passing on to the next submissions. Unless the evidence of bad character adduced by the co-defendant is in any event admissible at the behest of the prosecution (which it may well be, for example, under Part 11 of the Criminal Justice Act 2003), it is to be hoped that the prosecution do not seek in closing the case to the jury to rely on it and, should the prosecution be minded to do so, the judge should be informed in the absence of the jury to enable the matter to be discussed. If the evidence is admissible at the behest of the prosecution then the standard directions will normally have to be given, see e.g. Hanson  EWCA Crim 824.
- In his skeleton argument, Mr Dein submitted that, if the judge was right to direct the jury that they could take into account the matters identified in paragraph 45 above, then he should have directed the jury that they were relevant to credibility and not propensity. Mr Dein abandoned this submission, accepting during the course of argument that such a direction would make no sense.
- He further submitted that the jury should have been directed that, before utilising against the appellant any of the disputed matters identified in paragraph 45, the jury had to be sure that the allegation was true. We do not accept that. It is trite law that a jury only has to be sure that the ingredients of the offence have been proved. The jury does that after considering all the relevant evidence. There is no requirement for the jury to be sure about any particular piece of evidence (unless, without that piece, the ingredients of the offence would not have been proved). In any event such a direction would not assist a defendant. It might well require the judge to examine the evidence in some detail to assist the jury to decide whether they were sure or not. Such an examination would carry the risk that the disputed prejudicial material would be given a status and importance which it did not deserve (it is for a similar reason that counsel for a defendant does not always want a Lucas lies direction, with the risk of overemphasising the importance of a lie).
- Mr Dein submitted that a Hanson type direction was necessary if the judge was right to direct the jury that all the evidence could be taken into account when considering the case of each defendant. We see no merit in that argument for the same reasons as we have set out in the preceding paragraph.
- For these reasons this appeal is dismissed.
LORD JUSTICE HOOPER:
We now hand down the reasons for dismissing this appeal. We have been asked to certify a point of law of general public importance. We do certify the point in the terms requested:
"Where evidence of the propensity of D1 is relevant to a fact in issue between the Crown and D2, is not admissible at the behest of the Crown and is elicited at the behest of D2,
(i) should the judge direct the jury that the evidence is inadmissible in the case of D1 and that they should ignore it when considering his case? And
(ii) in any event, should the judge give the jury a propensity direction to assist them in making use of the evidence?"
An application has been also made to us in writing to grant leave to appeal to the House of Lords. Mr Dein QC is content that that application be dealt with on paper; he does not wish to make oral representations. Each member of the court has considered that application. We refuse leave to appeal to the House of Lords.
There is also an application before us for a representation order. We grant a representation order for either leading counsel or junior counsel, but not for both, and solicitors for the purposes of an application to the House of Lords for leave to appeal. If leave to appeal is granted, we grant a representation order for leading counsel, junior counsel and solicitors.
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