Garnham, R. v

Under Criminal Justice Act 2003, previous convictions of a witness may be used to challenge credibility only where they have substantial probative value. Convictions for theft and dishonesty do not, without more, demonstrate a propensity for untruthfulness and may properly be excluded.

In an ordinary criminal trial, a defendant’s alleged propensity for untruthfulness will rarely be an important issue. A previous conviction following rejected evidence does not justify a direction inviting the jury to treat the defendant as less likely to be truthful. Where that error deprives an effectively good-character defendant of an appropriate modified good-character direction, the conviction may be unsafe.

The appellant was convicted of rape at the Crown Court at Ipswich on 21 September 2006 and sentenced to six years’ imprisonment. The prosecution alleged non-consensual intercourse with a prostitute. The appellant maintained that the intercourse was consensual.

At trial, the judge refused to permit cross-examination of the complainant about 65 previous convictions for theft and dishonesty. The judge also gave a modified bad-character direction after the appellant volunteered his previous conviction for assault occasioning actual bodily harm and accepted that he had been disbelieved at the earlier trial.

The appellant appealed by leave of the full court. The central issues were whether the complainant’s convictions were admissible under Criminal Justice Act 2003, and whether the direction concerning the appellant’s character rendered the conviction unsafe.

1. Appeal allowed. The conviction was quashed because the direction on the appellant’s character misstated the law and deprived him of a potentially significant modified good-character direction. The court ordered a retrial.

2. The judge had correctly refused cross-examination of the complainant about her previous convictions. Under section 100(1)(b) of the Criminal Justice Act 2003, the material had to possess substantial probative value on a matter of substantial importance. A history of theft and other dishonesty did not, in these circumstances, establish a propensity for untruthfulness. The statutory scheme restrained the former common-law practice of impeaching credit by previous misconduct. Earlier authorities were therefore of no real assistance.

3. The direction concerning the appellant’s conviction for assault occasioning actual bodily harm was erroneous. The court approved the reasoning in R v Campbell [2007] EWCA Crim 1472: in an ordinary criminal charge, whether a defendant has a propensity for untruthfulness will not normally be an important matter in issue. The jury should decide whether the defendant committed the charged offence, rather than infer that he was unlikely to be truthful because he had previously been disbelieved.

4. The judge should not have replaced the appropriate modified good-character direction with a modified bad-character direction. Although the prosecution case had real strength, credibility was central. The appellant’s ability to rely on his effective good character, disregarding the spent assault conviction, was important. The court could not conclude that the conviction was necessarily safe.

5. A fresh indictment was directed. The appellant was to be re-arraigned within two months and remain in custody pending any bail application to the judge at Ipswich.

• Court of Appeal (Criminal Division) In [2008] EWCA Crim 266, allowed the appeal, quashed the rape conviction and ordered a retrial on a fresh indictment.

• Crown Court at Ipswich On 21 September 2006, Judge Holt and a jury convicted the appellant of rape and sentenced him to six years’ imprisonment. No citation was stated.