Edwards & Ors, R v

Bad-character evidence must be assessed when the application is made and by reference to the particular statutory gateway relied on. An earlier refusal does not prevent later admission if a material change, such as a sustained attack on prosecution witnesses, alters the fairness assessment.

A jury must be warned that previous convictions cannot alone prove guilt. The judge must explain why the evidence was admitted and its permitted use, but no rigid summing-up formula is required. Dishonesty does not necessarily establish a propensity to be untruthful. Procedural failures concerning notice require careful scrutiny, but will not render a conviction unsafe without material prejudice.

Four linked criminal appeals and applications concerned the admission and use of bad-character evidence under the Criminal Justice Act 2003.

Edwards challenged convictions for assaults on police officers and possession of a bladed article after historic convictions were admitted following an attack on the officers’ character. Fysh challenged convictions for possessing an offensive weapon and common assault, relying on defective notice, propensity to untruthfulness, and the summing-up. Duggan challenged his conviction for wounding with intent, where self-defence and the identity of the aggressor were central. Chohan challenged robbery and imitation-firearm convictions, principally on the admission of recognition evidence referring to heroin dealings and of prior convictions.

The court also considered the proper directions to a jury, the effect of non-compliance with notice requirements, and the appropriate sentences for Edwards and Duggan.

1. Disposition. The court refused Edwards’s application for leave to appeal against conviction, dismissed Fysh’s conviction appeal, and refused Duggan’s and Chohan’s applications for leave to appeal against conviction. It allowed the sentence appeals of Edwards and Duggan, reducing their total terms respectively from 12 months to nine months and from five years to four years.
2. Jury directions. The guidance in R v Hanson & Ors [2005] EWCA Crim 824 was not a mandatory blueprint. A summing-up must give a clear warning that previous convictions cannot, by themselves, prove guilt. It must explain why the jury has heard the evidence and the ways in which it may assist. Those matters depend primarily on the gateway in section 101(1) of the Criminal Justice Act 2003. The terms of a sufficient direction may properly differ between cases.
3. Fresh admissibility assessment. The fairness effect of evidence under section 101(3) must be assessed at the time of the application and by reference to the gateway then relied upon. The Recorder was therefore entitled, and correct, to admit Edwards’s historic dishonesty conviction under gateway (g) after the defence had mounted a sustained attack on the police officers’ character. An initial refusal under gateway (d), before that attack, did not bind the later ruling.
4. Propensity, notice and relevance. Dishonesty does not automatically show a propensity to be untruthful for section 103(1)(b). Shoplifting might not show such a propensity, although repeated benefit fraud was capable of doing so. Notice rules are important because they permit proper enquiries into the circumstances of convictions. Neither Fysh nor Duggan suffered prejudice sufficient to make the convictions unsafe. In Duggan’s case, prior violence or disorder and immediate aggressive conduct after the incident had enhanced relevance to the question whether he was the aggressor in the asserted self-defence.
5. Explanatory evidence and sentence. In Chohan’s case, evidence explaining the identification witness’s repeated opportunities to recognise him was properly admitted as important explanatory evidence. The court also approved the trial judge’s careful direction on the limited use of bad-character evidence, subject to the distinction between dishonesty and untruthfulness. For Edwards, consecutive sentences for the two common assaults arising from one incident were inappropriate; concurrent three-month terms and a consecutive six-month term for the bladed article produced a total of nine months.

• Court of Appeal (Criminal Division) [2005] EWCA Crim 1813: conviction challenges dismissed or refused. Edwards’s total sentence was reduced from 12 months to nine months, and Duggan’s sentence from five years to four years.
• Manchester Crown Court: on 24 February 2005, Edwards was convicted of two common assaults and possession of a bladed article, and sentenced to 12 months’ imprisonment.
• Norwich Crown Court: on 9 February 2005, Fysh was convicted of possessing an offensive weapon and common assault. On 23 March 2005, he was sentenced to nine months’ imprisonment.
• Snaresbrook Crown Court: on 4 March 2005, Duggan was convicted of wounding with intent and sentenced to five years’ imprisonment.
• Manchester Crown Court: on 8 February 2005, Chohan was convicted of robbery and imitation-firearm offences and sentenced to ten years’ imprisonment.