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||Neutral Citation Number:  EWCA Crim 1194
||Case No: 200904511 D1 AND 200904583 D1
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Coventry Crown Court before HHJ Coates
On 30th July 2009
B e f o r e :
On 30th July 2009
LORD JUSTICE PITCHFORD
MR JUSTICE MADDISON
MR JUSTICE MACDUFF
|| Neil Brewster
||- and -
Ben Williams (instructed by Mander Hadley & Co - Solicitors) for the 1st Appellant
Richard Davenport (instructed by Newton Law Practice - Solicitors) for the 2nd Appellant
Glyn Ross Samuel (instructed by CPS Coventry) for the Respondent
Hearing date: 6th May 2010
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Pitchford :
- On 30 July 2009 the appellants, Neil Ian Brewster and Dayo Cromwell were convicted upon Count 1 of an offence of kidnapping following a trial at Coventry Crown Court before HHJ Coates and a jury. Mr Brewster was charged alone with and also convicted upon Counts 2 and 3, alleging offences of theft. Each of the verdicts was returned by a majority of 10 – 1. The jury were unable to agree upon a verdict in respect of Count 4 against Mr Cromwell only, charging him with intimidation of a witness. The jury were discharged from reaching a verdict and the matter was left on the file. The appellants have leave from the single judge to pursue one ground of appeal, namely that the learned judge wrongly declined to permit cross-examination of the complainant as to her bad character on previous occasions. Although Mr Cromwell gave notice of an intention to renew his application for leave on other grounds and to raise an issue of fresh evidence, counsel on his behalf, Mr Davenport, abandoned the application and the hearing proceeded upon the single ground.
Evidence at Trial
- Amber Davis is 27 years old. She has two children by a man called Phillip Barnes. In April 2009 the children were aged 1 and 2 years. Miss Davis gave evidence that her relationship with Barnes ended in 2008 although it was the defence case that she was still seeing him, not least because he had access to their children. On 9 April 2009 at about 1.30 pm, Miss Davis drove her two children, by car, to the post office at Station Square in Coventry. She gave evidence that before she was able to get out of the car she saw Mr Brewster approaching. She knew him as an associate of Mr Barnes. She was frightened because she thought she knew what it was about. She thought that Barnes had stolen someone's drugs.
- As she opened the driver's door Mr Cromwell appeared and blocked her way, at the same time removing her car keys. Her evidence was that she had not seen Mr Cromwell before. Cromwell said he was taking the car. He was doing it because of the "weed" stolen by Barnes. About £10,000 worth had been stolen. Amber Davis said that she begged him not to do that. Her stepfather had purchased the car only the day before because her own had been stolen by Barnes. The response from both men, according to Ms Davis, was that in that case they would get the money from her father. Brewster climbed into the passenger seat, gave her the keys and told her to drive to her father's house. Cromwell left and got into a silver Fiesta. She was told that he would follow them. On the way, Brewster looked into her bag which was in the foot well of the passenger seat. He asked for the log book for the car, but she did not have it, only the MOT and a receipt for the sale of the car. He found her bank card and asked how much money she had in her account; she said £100. He told her to drive to the Murco petrol station.
- When they arrived at the petrol station, Miss Davis said that Brewster took the car keys and demanded to know her PIN number. He told her that unless she released it he would use an axe on her. He went to the cash machine with her card, her keys, and her mobile phone. He withdrew £100. By now, both children were crying and one had been sick. When Brewster was returning he stopped to speak to Mr Cromwell who had by now arrived. Then he gave Ms Davis the keys, got back into the car and told her to drive to her father's house. At that moment he received a phone call. He got out of the car and as he took the call he walked towards Mr Cromwell. Ms Davies used the opportunity to lock the car and drove to the police station at Stoney Stanton Road. When she arrived she was observed to be distressed, crying and shaking. In evidence, Miss Davis estimated that the incident had lasted in total about half an hour. However, she arrived at the police station at about 3.30 pm.
- The defence case was that the meeting was indeed concerned with the activities of Phillip Barnes but not, according to the appellants, because he was implicated in stealing drugs. He had robbed a man called Blaine Chambers at a house in Foleshill and had stolen from him a quantity of jewellery and about £2,000 in cash which Mr Chambers had saved to start a plumbing business. Blaine Chambers had informed Mr Brewster what had happened to him and sought his help. Brewster said in evidence that he had had a relationship with Ms Davis, denied by her, for about 3 weeks in November 2008. Mr Brewster said he had got a message from Ms Davis through a friend that she wanted to meet him. On 4 April or so they met at Coundon School and drove in separate vehicles back to her house where she gave him a neck chain. The neck chain was part of the proceeds of the alleged robbery.
- On 9 April Mr Brewster said he received a call from Mr Cromwell saying that he was going to meet Ms Davis and wanted him there as well. Cromwell said in evidence that he had met Amber Davis about a week before when he was with Brewster outside Miss Davis's home in his car. Blaine Chambers was also there in his van. On the morning of 9 April Cromwell said he saw Ms Davis in a car with Phillip Barnes. Barnes appeared to be trying to hide himself from view. The car stopped and Phillip Barnes got out and ran away. Ms Davis handed Mr Cromwell a mobile phone which she said belonged to Blaine Chambers. She said she wanted to meet Cromwell and Brewster on a future occasion to sort things out. Cromwell said that he left her and went home. At home he received a phone call from Amber Davis saying that she would meet them at Station Square. Brewster picked Cromwell up and they made the rendezvous.
- According to Brewster, in Station Square things were relaxed. Ms Davis wanted to give him £100 but they would have to go to the cash point to get it. Since she was on her way to hand the children over to Barnes they would stop at a convenient cash point. This they did, enabling Brewster to withdraw the cash. Cromwell was no longer with them. Brewster denied that he had seen the bag or stolen any of the contents reflected in count 2 of the indictment. Cromwell's account was that Ms Davis admitted being involved in the robbery of Mr Chambers. She said she had been driving the car. Then he received a phone call and left Davis and Brewster in the car. He had to leave because he had something else to do.
- There were three problems with the account given by and on behalf of the defence. First, it did not explain why the cash should not have been withdrawn there and then from the cash machine in Station Square. Second, Blaine Chambers had reported a robbery but the day he gave then, and in evidence, was specifically 17th April 2009 – 8 days after the incident in Station Square. Third, neither appellant breathed a word of this defence to the police when arrested and interviewed.
The application to admit bad character evidence
- The defence made an application to cross-examine Amber Davis upon her previous convictions. Her convictions comprise the following:
Coventry District Juvenile Court – 3rd May 2000: Burglary and theft from a dwelling on 28 the March 2000 (Plea: Guilty).
Warwick Crown Court – 30th January 2004: Manslaughter on 1st August 2003 (Plea: Guilty).
Birmingham Crown Court – 1st February 2007: Possessing controlled drug, Class A cocaine, with intent to supply on 26th March 2006 (Plea: Guilty); possessing controlled drug, Class A heroin, with intent to supply, on 26th March 2006 (Plea: Guilty).
Birmingham Crown Court – 30th November 2007: theft by shoplifting on 14th September 2007 (Plea: Guilty); theft by shoplifting on 8th September 2007 (Plea: Guilty).
- Counsel's application, led by Mr Williams on behalf of Mr Brewster, concentrated upon the offences of burglary, manslaughter and theft. Mr Williams informed us that on reflection he may have been mistaken in failing to advance the application more thoroughly upon the convictions for possessing drugs. Counsel submitted that of particular concern to the defence was the conviction for manslaughter, since its circumstances were relevant to issues which arose in the trial. The parties were in possession of a case summary prepared by West Midlands Police which formed part of the case papers in the prosecution of Ms Davis for offences of murder and manslaughter. In about June 2003 the deceased, Mr Sturdy, a man aged 40, met Ms Davis while she was working as a prostitute. Mr Sturdy became obsessed with Miss Davis, spending a good deal of his savings on her, he said for the purpose of helping her to turn away from prostitution. Amber Davis was at that time, in a relationship with Phillip Barnes. Falsely, she introduced Barnes as her brother. Within a month, Sturdy had spent all of his £2,000 savings. On 1 August 2003 Davis drove Sturdy in his car to Coventry City Centre to collect the keys for a flat which he had arranged to buy. Instead of waiting, Davis drove off and left him. Shortly afterwards he reported the theft, naming Davis as the thief. He made efforts, eventually successful, to arrange a meeting with Davis in Broad Park Road, Henley Green in Coventry at about 7.00 pm, to accept the return of his car. Fearful that money may be demanded in return for the car, he took his friend John Stubbs and Mr Stubbs' brother-in-law, Geoffrey Plunkett, to be in the vicinity. When the meeting took place Barnes was present. The car had been parked a short distance away. Barnes, Davis and Sturdy walked to the car. Barnes was in possession of the car keys and was reluctant to hand them over. In his effort to recover his keys from Barnes' pocket Sturdy ripped Barnes' jacket, upon which money was demanded. In the meantime, the police had been called. Barnes was in possession of a hammer which he deposited in an alleyway. Barnes demanded £300 for his coat or the keys would not be returned. He and Davis walked off. However, they returned to the car where Barnes continued to remonstrate with Sturdy about the damage to his jacket. Sturdy explained that he was telephoning his mother to obtain a spare set of keys. Davis took the opportunity of getting in to the car and started to move off. Sturdy ran to the car and jumped on the bonnet in an attempt to prevent her driving away. Davis braked sharply throwing Mr Sturdy from the bonnet and into the road. She drove off stopping only to permit Barnes to climb into the car before they left the area. Mr Sturdy, as a result of his fall, suffered a fatal head injury.
- When interviewed Amber Davis made admissions to the effect that she had taken Mr Sturdy for a ride and bled him dry of his money.
- Unavailable to the trial judge, but provided to this court, was the prosecution opening of the case against Amber Davis and Phillip Barnes on 30 January 2004 before Hunt J. It is clear that the case was opened on a "full facts" basis. In mitigation, it was maintained that the relationship between herself and Mr Sturdy had been purely a business one. She was at the time a heroin and crack cocaine addict. She was sentenced to 42 months imprisonment for manslaughter. Phillip Barnes was sentenced to 2 years imprisonment for affray.
- We do not have a transcript of the application to HHJ Coates. We are, however, assured by Mr Williams that he explained to the judge the significance of the fact that Amber Davis and Phillip Barnes were prepared to engage in deceitful and intimidating behaviour in order to deprive an innocent man of his possessions. It was submitted that the facts of the manslaughter case resonated with the issues which arose, on the defence case, in the trial for kidnapping. While the defence could not attribute a specific motive to Amber Davis for wishing to make a false allegation of kidnapping and theft, it was the applicants' case that they had been deceived by Ms Davis, apparently making attempts at reconciliation while having an ulterior purpose in mind.
The Judge's Ruling
- In his ruling of 27th July 2009 Judge Coates said:
"...The test has been helpfully pointed out to me by Mr Williams, summarised precisely in Archbold 2009 at paragraph 13.16 and that I first of all have to decide whether the credit worthiness of this witness is to be regarded as a matter in issue in the proceedings and there is no doubt that that is the case under Section 100 (1) (b). I do not have to conclude that it is of substantial importance in the context of the case as a whole that this bad character goes before the jury and that the bad character evidence has substantial probative value [the judge appears inadvertently to have included a negative.] Looking at the witness' previous convictions, there are four matters. When she was 17 she pleaded guilty to an offence of burglary of a dwelling house and was placed on probation for 12 months. Because counsel in this case for the defence want to go beyond simply putting the conviction to the witness, but to investigate the facts as well, I have been told that that was a case where she throw a brick through a window and took some items. There was a guilty plea. In 2004 she was convicted in Warwick Crown Court of manslaughter.
I have not had an agreed version of facts for that case, but clearly, on what I have been told, it relates to her treatment of a customer while she was working as a prostitute, who was killed while she was driving away in a motorcar. Counsel do not really push the point of the convictions for possessing controlled drugs in 2007. Again there were pleas of guilty and they could not possibly go to the question of honesty or otherwise. There is clearly a drugs background to this case that is already clear to the jury. Then, in November 2007, she has two convictions for shoplifting. Again, she pleaded guilty and she was made the subject of an 18 month community order. Whether or not this lady is cross-examined on her previous convictions depends upon whether I am satisfied that the tests have been met and I, at the end of the day, have an overall discretion. I have a good flavour of this case because counsel, at my request, although they find it difficult not to answer questions [sic] but they very helpfully have indicated what the issues are here and there is not a lot of dispute between the facts. The only issue here is whether she was agreeable to them or disagreeable.
That is the issue in this case, as simple as that. I take the view that her convictions are not of substantial importance in the context of the case as a whole, that they are not, in my view, of substantial probative value and I do not give leave for her to be cross-examined as to the fact of conviction or therefore, of course, the facts of the convictions."
- While in the final paragraph of his ruling the learned judge appears to have equated the substantial importance of the issue of creditworthiness with the substantial importance of convictions, it is clear that he had in mind the test set out in Section 100(1)(b). However, there are three aspects of his ruling which reveal the possibility of misunderstanding. The first is the judge's observation that the drugs convictions could not possibly go to the question of honesty. This observation may reveal the judge's belief that in order to constitute probative value on the issue of creditworthiness, the conviction had to bear upon the witness's record for truthfulness. Second, the learned judge indicated that he considered he had, notwithstanding the statutory test, "an overall discretion" whether or not to permit cross-examination upon the convictions. Third, the judge appears to have treated the issue between the prosecution and the defence as a narrow and discrete one, namely whether the admitted activity constituted an offence. We are informed by counsel that the defence case was that Amber Davis's claim to have been coerced by force and the threat of force was fabricated for purposes of her own. Contrary to her assertions, she was the instigator of the meeting.
- Section 100 (1) (b) provides as follows:-
"100(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if, and only if
(b) It has substantial probative value in relation to a matter which
i) Is a matter in issue in the proceedings, and
ii) is of substantial importance in the context of the case as a whole ..."
- It is common ground between the appellants and the respondent that while Section 100 is expressed in terms of the admissibility of evidence, it governs also cross-examination upon the bad character alleged. Section 6 of the Criminal Procedure Act 1865 has been amended so as to read:-
"If upon a witness being lawfully questioned as to whether he has been convicted of any felony or misdemeanour .... he either denies or does not admit the fact, or refuses to answer, it shall be lawful for the cross-examining party to prove such conviction." [emphasis added]
- Counsel have drawn to our attention a number of decisions of this court concerning the application of section 100(1)(b) and the similar provision which applies to issues arising between co-accused in section 101(1)(e) of the 2003 Act. It is pointed out to us that there are two schools of thought upon the issue whether a conviction for behaviour unrelated to the conduct alleged is capable of being of "substantial probative value" as to a matter in issue in the proceedings which is of substantial importance in the context of the case as a whole. The usual situation is a challenge by one party to the truthfulness of the account of the witness. In Stephenson  EWCA Crim 2325 the court rejected an assertion that somewhat stale convictions of a young complainant of sexual offences in a family setting should have been admitted to challenge her creditworthiness. In considering the trial judge's reasons for refusing the application, Hughes LJ, giving the judgment of the court, said this at Paragraph 27:-
"27 ... "in Hanson  EWCA Crim 824, this court considered an application made by the Crown to admit evidence of bad character of the defendant on trial. In such a case, as this court held as recently as yesterday, when the point was fully argued, particular caution must be adopted, but it does not follow, as we have held, that previous convictions which do not involve either the making of false statements or the giving of false evidence, are incapable of having substantial probative value in relation to the credibility of a non-defendant under Section 100, or for that matter of a co-accused where the application is made by him under Section 101(1)(e). It is, as we then explained, wholly rational that the same degree of caution which is applied to a Crown application when considering relevance and discretion, does not fall to be applied when what is at stake is a defendant's right to deploy relevant material to defend himself against a criminal charge. Accordingly (though he cannot be blamed for it), the trial judge misdirected himself in directly applying paragraph 13 of Hanson to the situation which was before him. It may be, therefore, that had he addressed the question without believing himself fettered in that way, he might have come to the conclusion that these three incidents were capable of having substantial probative value in relation to the truthfulness of the complaint, which was an important matter in issue in this case. Whether he would or not would have been a matter for the feel of the case and for him at the time. Whether he would or not, we are satisfied that, had those matters been known to the jury, they could not in this case have made any significant difference ...."
Similar observations as to the trial judge's exercise of judgement have been made in cases decided under section 101(1)(e) including, Lawson  EWCA Crim 2572,  1 WLR 1191,  1 Cr App R 11; Rosato  EWCA Crim 1243; Singh  EWCA Crim 2140; Hestor and McKray  EWCA Crim 2127;
and Jarvis  EWCA Crim 488.
- In S (Andrew)  EWCA Crim 1303,  1 WLR 63,  2 Cr App R 31, the defence sought the admission in evidence of convictions for dishonesty to demonstrate that the complainant (a prostitute) made an unreliable allegation of indecent assault against the defendant, a client of hers. The defence case was that the complainant had threatened to make a complaint if she was not paid more money for consensual acts and that she had stolen the defendant's chain. Her previous convictions included burglary, theft, and other forms of dishonesty. While accepting that an issue of substantial importance in the trial was the complainant's credibility, Laws LJ delivering judgment of the court, drew attention to the fact that the question whether the bad character relied on was of substantial probative value in resolution of that issue was separate and less straightforward. At paragraph 11 of his judgment he said:
"11. The only species of credibility (or rather the absence of it) on the part of the complainant which is sought to be advanced by Mr George was, and is, an alleged deliberate untruthfulness. There is no question of mistake or error or anything of that kind. Thus, the question raised in Mr George's grounds is: Should the judge have held that these convictions possess substantial probative value in relation to the question whether the complainant gave a truthful or deliberately untruthful account of what had happened?
12. It should first be noted that propensity to untruthfulness is not the same thing as a propensity to dishonesty: see Hanson  2 Cr App R 21 (page 299), paragraph 13, where it was said that previous convictions for offences of dishonesty are only likely to demonstrate a propensity for untruthfulness where the convicted person is shown in relation to the earlier offences to have told lies either in pleading not guilty and giving an account which must have been disbelieved by the trial court, or because of the nature of the offence (for example, if it involved making false representations). No such considerations apply here. The complainant pleaded guilty to each of the previous offences sought to be relied on. None of them involved making false representations. In addition, as the judge was at pains to note, the offences are of some antiquity. The fact urged by counsel for the appellant that the jury knew about the appellant's good character, cannot as a matter of logic increase the probative value of the complainant's previous offences in relation to her credibility. In our judgment, the judge was quite right to refuse the application on the distinct basis on which it was put to him."
On the other hand, the court noted that the behaviour which constituted some of the offences to which the complainant had pleaded guilty bore a sufficient resemblance to the assertions made by the defendant of her behaviour towards him that the evidence was of substantial probative value towards proof that his account of the event was true and that the complainant's was false. The appeal was allowed on that ground.
- There is revealed by these decisions of the court what counsel have described as the narrow and wide interpretation of the words "substantial probative value". In appreciating the distinction between the two forms of probative value, we are much assisted by the commentary of Professor J R Spencer at page 48, paragraph 3.14 in the second edition of his work "Evidence of Bad Character" published by Hart in 2009:
"3.14 Some convictions bear on the credibility of the witness directly, because they provide a reason for doubting the truth of the particular evidence the witness has given in this particular case. If the alleged victim of an assault claims that the defendant was the aggressor, we are less inclined to believe him when we discover that he has (say) five previous convictions for acts of violence himself. [Professor Spencer inserts a note placing the case of S (Andrew) in this category] But other convictions bear on credibility only indirectly, by inviting us to reason "a person who would do something like that is not a person whose word can be trusted". As the Court of Appeal once put it when rejecting an application to call a new witness whose evidence would allegedly establish the appellant's innocence:
"Mr Washington .... is a man with numerous convictions including no less than 32 for theft, burglary, handling or obtaining by deception and a further 4 for fraud or forgery. None of that of course means that he is not telling the truth today, but it does indicate that his honesty cannot be taken for granted". [Devon  EWCA Crim 388 ]
Under the new law, there will be little difficulty about the admissibility of a witness' convictions in the first type of case, where they bear on his credibility directly. However, difficulties will arise in cases where, if at all, the witness's criminal record only undermines his credit indirectly."
- In Professor Spencer's view, with which we respectfully agree, the purpose of Section 100 was to remove from the criminal trial the right to introduce by cross-examination old or irrelevant or trivial behaviour in an attempt unfairly to diminish in the eyes of the tribunal of fact the standing of the witness, or to permit unsubstantiated attacks on credit. Those convictions which will be material to the second category to which Professor Spencer refers are those which would have a bearing, in the mind of a fair minded tribunal, upon the worth of the witness's testimony (see the judgment of Lawton J in Sweet-Escott  55 Cr App R 316).
- It seems to us that the trial judge's task will be to evaluate the evidence of bad character which it is proposed to admit for the purpose of deciding whether it is reasonably capable of assisting a fair minded jury to reach a view whether the witness's evidence is, or is not, worthy of belief. Only then can it properly be said that the evidence is of substantial probative value on the issue of creditworthiness. In reaching this view, with respect to the court in S (Andrew), we agree with the observations of Hughes LJ in Stephenson. It does not seem to us that the words "substantial probative value", in their section 100(1)(b) context require the applicant to establish that the bad character relied on amounts to proof of a lack of credibility of the witness when credibility is an issue of substantial importance, or that the convictions demonstrate a tendency towards untruthfulness. The question is whether the evidence of previous convictions, or bad behaviour, is sufficiently persuasive to be worthy of consideration by a fair minded tribunal upon the issue of the witness's creditworthiness. When the evidence is reasonably capable of giving assistance to the jury in the way we have described, it should not be assumed that the jury is not capable of forming an intelligent judgement whether it in fact bears on the present credibility of the witness and, therefore, upon the decision whether the witness is telling the truth. Jurors can, with suitable assistance from the judge, safely be left to make a proper evaluation of such evidence just as they are when considering issues of credibility and propensity arising from a defendant's bad character.
- The first question for the trial judge under section 100(1)(b) is whether creditworthiness is a matter in issue which is of substantial importance in the context of the case as a whole. This is a significant hurdle. Just because a witness has convictions does not mean that the opposing party is entitled to attack the witness' credibility. If it is shown that creditworthiness is an issue of substantial importance, the second question is whether the bad character relied upon is of substantial probative value in relation to that issue. Whether convictions have persuasive value on the issue of creditworthiness will, it seems to us, depend principally on the nature, number and age of the convictions. However, we do not consider that the conviction must, in order to qualify for admission in evidence, demonstrate any tendency towards dishonesty or untruthfulness. The question is whether a fair-minded tribunal would regard them as affecting the worth of the witness' evidence.
- This brings us to a consideration of Judge Coates's exercise of judgement on the probative value of Amber Davis's convictions. We are particularly, but not exclusively, concerned with the conviction for manslaughter. It was suggested to us on behalf of the respondent by Mr Samuel that to admit the conviction for manslaughter would have opened up avenues of cross-examination upon matters which could not easily be confirmed independently. For example, it was not then known whether Ms Davis had tendered a basis of plea. It does not seem to us that this was, at the stage of the application, a significant, let alone overriding, consideration since enquiries could easily have revealed the same information as that with which we have been provided in the appeal. Furthermore, as Maddison J pointed out in the course of argument, this may be appropriate territory for the admission of the written case summary, or an edited version, prepared by the prosecution in the interests of justice under section 114(1)(d) Criminal Justice Act 2003 (see Steen  EWCA Crim 335,  2 Cr App R 26). In our opinion, the facts of the manslaughter conviction as accepted by Ms Davis at the time of the sentence hearing rendered this conviction directly relevant, within the meaning of the first category of admissibility to which we have referred, by reason of its association with the conduct of the witness now alleged by the defence. Furthermore, we take the view that each of these convictions is relevant in the wider sense as going to a fair minded jury's proper assessment of the standing of the witness. We do not suggest that a comparatively old conviction for shoplifting or burglary would alone fall into this category in the context of the present case. However, the appellants are entitled to assert that cumulatively they convey a more complete picture of the status of the witness than otherwise would be available. We recognise, as Mr Samuel submitted, that there are other features in the evidence which tend to support the creditworthiness of Amber Davis. By 9 April 2009 she was aged 27. She had two young children. She said that her relationship with Barnes had terminated. It was necessary for her to obtain an injunction in respect of him and his behaviour towards her. Her account of the theft of her own car by Barnes and the purchase of a replacement could be established by other evidence. These are all matters for the jury to resolve. In our view, the learned judge erred in his decision to exclude these convictions from the jury's consideration. Once it is decided that they are of substantial probative value in relation to an issue of substantial importance in the context of the case as a whole, there is no residual discretion except in the exercise of case management to refuse the admission of the evidence. Such discretion as there is will be exercised, for example, in the manner of presentation of the evidence to the jury, and the restriction of cross examination to relevant matters.
- We have considered what would have been the effect of admission of Ms Davis's previous behaviour. It is accepted on all sides that the inevitable consequence would have been the admission of the character of the appellants under Section 101(1)(g) of the 2003 Act. They each have criminal records of some seriousness and it may be that if the jury had learned of the convictions of each of the main actors at trial they would have reached the same verdicts. It is correctly observed on behalf of the appellants that in the absence of supporting evidence, beyond Ms Davis's observed state of distress at the police station some time after the incident, the jury might have been persuaded that they could not safely act on her evidence notwithstanding the bad character of the accused. We are thus unable to conclude that these verdicts were safe.
- We informed the parties at the conclusion of argument that we would allow the appeal. These are our reasons.
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