Hearne, R. v

Where an accused attacks a prosecution witness’s character, previous convictions may properly be admitted under section 101(1)(g) of the Criminal Justice Act 2003, despite their age, if their admission is a reasonable response and is necessary to avoid unfairness to the witness.

The jury should use such convictions only as background when assessing whether the accused is worthy of belief. They should not use them as evidence of a propensity to commit the charged offence or to be untruthful. An omitted express warning will not render a conviction unsafe where the direction, read fairly, confines the use of the convictions to that background purpose.

The appellant was convicted at Guildford Crown Court on 8 September 2008 of burglary at an aviary forming part of the victim’s home. He said that he had entered to release unlawfully kept wild birds, rather than to steal valuable birds.

His defence attacked the victim’s character. The trial judge consequently admitted two earlier burglary convictions under section 101(1)(g) of the Criminal Justice Act 2003. The appellant challenged both their admission and the jury direction concerning them.

He also appealed, with leave, against an 18-month sentence of imprisonment. The central issues were whether the convictions made the trial unfair, whether the direction permitted improper propensity reasoning, and whether the sentence was excessive.

1. The appeal against conviction was dismissed. The trial judge’s decision to admit the appellant’s burglary convictions, although respectively about 21 and 11 years old, was within the range of reasonable responses. The appellant had attacked the victim’s character by alleging that she unlawfully kept wild birds and fabricated evidence. It would have skewed the fairness of the trial if the jury had not known that the allegation came from a mature man with burglary convictions.
2. The direction did not invite the jury to infer either a propensity to commit burglary or a propensity for untruthfulness. Read fairly, it explained that the convictions were background material relevant to the jury’s assessment of whether the appellant was worthy of belief after attacking the victim. That was consistent with the approach described in R v Powell [1985] 1 WLR 1364 and R v McLeod [1994] 1 WLR 1500.
3. The court said that it might have been prudent expressly to warn the jury not to use the convictions as evidence of a propensity to commit burglary, still less of untruthfulness. The omission caused no harm because the judge had made clear that the convictions were admitted only as background. The conviction was therefore safe.
4. The appeal against sentence was allowed. The aviaries formed part of the victim’s home. The planned and commercially motivated targeting of them was properly treated as domestic burglary, and the custody threshold was crossed notwithstanding the appellant’s medical condition.
5. However, 18 months’ imprisonment was manifestly excessive when the particular impact of custody and the nature of the offence were considered. The sentence was reduced to eight months’ imprisonment.

• Court of Appeal (Criminal Division): The appeal against the Guildford Crown Court conviction of 8 September 2008 was dismissed. The appeal against the 18-month sentence, brought with leave of the single judge, was allowed and the sentence was reduced to eight months’ imprisonment.