Good, R v

Under Criminal Justice Act 2003, section 101(1)(f), previous misconduct may be admitted to correct a false impression only where the defendant has actually conveyed that impression. An answer to an ambiguous, compound question cannot be treated as a denial of every allegation where it may sensibly address only its final part.

After a conviction is quashed, whether to order a retrial is a public-interest judgment. The court may weigh the seriousness of the allegation and the complainant’s position against delay, time already served, restrictive bail conditions and the practical consequences of a further trial.

The appellant was convicted at the Crown Court at Hove of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861. During cross-examination, he denied being the type of person described in a final, compound prosecution question. The trial judge held that this created a false impression and admitted two previous convictions.

On the conviction appeal, the central issue was whether that answer could properly be treated as a denial of the whole allegation. The Crown also applied for a retrial if the conviction were quashed. The appellant separately renewed an application for leave to appeal a six-month sentence imposed for a different assault occasioning actual bodily harm to which he had pleaded guilty.

1. The conviction appeal was allowed and the conviction was quashed. The prosecution’s final question was a compound and dramatic allegation. The appellant’s answer, that he was not that type of person, could have addressed only the final assertion that he had celebrated the assault by proclaiming himself “the master”. The trial judge was therefore wrong to find that the answer denied the totality of the alleged conduct.

   It followed that the appellant had not created the false impression identified by the judge. His previous convictions were not admissible under section 101(1)(f) of the Criminal Justice Act 2003. The Crown did not contend that the conviction remained safe despite their admission.

2. No retrial was ordered. Although the alleged assault was serious and the court recognised the complainant’s likely distress, a retrial was not in the public interest. The alleged offence was over two years old, there had been substantial delay, and the appellant had been subject to electronic curfew while awaiting trial. He had also served imprisonment for another assault and would probably have been released earlier but for the quashed conviction.

3. The renewed application for leave to appeal sentence was refused. The separate assault fell within the lower guideline category of minor, non-permanent injury. Its guideline range nevertheless permitted up to 26 weeks’ custody. The appellant’s similar previous assault, breach of a conditional discharge, and commission of the offence while on bail were substantial aggravating features. A six-month sentence was not arguably manifestly excessive.

• Court of Appeal (Criminal Division): In [2008] EWCA Crim 2923, the court quashed the conviction, refused to order a retrial, and refused renewed leave to appeal the separate six-month sentence.
• Crown Court at Hove: The appellant was convicted on 14 August 2008 of assault occasioning actual bodily harm. On the same date, he received a consecutive nine-month sentence for that offence. In a separate matter, he had pleaded guilty on 11 February 2008 to assault occasioning actual bodily harm and was sentenced on 14 August 2008 to six months’ imprisonment.