Brewster & Anor v R.

Under section 100(1)(b) of the Criminal Justice Act 2003, a witness’s bad character is admissible where creditworthiness is a matter in issue of substantial importance and the evidence has substantial probative value on that issue. The evidence need not prove a tendency to dishonesty or untruthfulness. The question is whether it could reasonably assist a fair-minded jury in assessing the worth of the witness’s evidence.

The assessment depends principally on the nature, number and age of the convictions, and on any connection between the earlier conduct and the account in issue. Once the statutory conditions are met, the judge has no residual discretion to exclude the evidence. Case-management powers remain available to control its presentation and the proper scope of cross-examination.

The appellants were convicted at Coventry Crown Court of kidnapping. The first appellant was also convicted of theft. Their case was that the complainant had voluntarily met them in connection with a dispute involving Phillip Barnes, rather than being coerced into giving up money and property.

Before trial, the judge refused permission for the defence to cross-examine the complainant about convictions including burglary, manslaughter, drug offences and shoplifting. The defence contended that the facts underlying the manslaughter conviction resembled its account of the complainant’s conduct and that the convictions also bore on her creditworthiness. The sole issue on appeal was whether the exclusion of that evidence was wrong and rendered the convictions unsafe.

Decision

1. The court allowed both appeals. The exclusion of the complainant’s bad-character evidence was erroneous, and the court could not conclude that the convictions were safe.

2. Section 100(1)(b) of the Criminal Justice Act 2003 requires a two-stage inquiry. First, creditworthiness must be a matter in issue and of substantial importance in the case as a whole. Secondly, the proposed bad-character evidence must have substantial probative value on that issue. The latter question asks whether the evidence is reasonably capable of helping a fair-minded jury assess whether the witness is worthy of belief.

3. Substantial probative value does not require proof that the witness has a tendency to lie or that every conviction demonstrates dishonesty. The nature, number and age of the convictions are important. A direct factual association between the previous conduct and the defence allegation may give the evidence particular force. A jury, properly directed, can evaluate the weight to give such material.

4. The judge had therefore applied too narrow a test. The facts accepted on the complainant’s manslaughter conviction were directly relevant to the defence account. Taken cumulatively, the convictions could also assist a fair-minded jury in assessing her standing as a witness. Once the statutory conditions were met, there was no residual discretion to refuse admission. Any remaining discretion concerned case management, including the form in which the evidence was presented and confining cross-examination to relevant matters.

5. Admission of the complainant’s convictions would have led to admission of the appellants’ bad character under section 101(1)(g). That possibility did not cure the error. The complainant’s distress at the police station was the only supporting evidence identified beyond her account, and the jury might have regarded her evidence as insufficiently safe after hearing the material. The verdicts were consequently unsafe.

• Court of Appeal (Criminal Division): In Brewster & Anor v R., the court allowed the appeals and held that the exclusion of the complainant’s bad-character evidence rendered the convictions unsafe: [2010] EWCA Crim 1194.
• Coventry Crown Court: Before HHJ Coates on 30 July 2009, a jury convicted both appellants of kidnapping and convicted the first appellant of two theft offences.