McCluskey v R.

A trial judge must address the actual basis on which evidence of a witness’s bad character is sought. Evidence capable of supporting a defendant’s case that a principal witness fabricated allegations to divert police attention, and of challenging that witness’s credibility, may be admissible even if its exploration requires proportionate limits to avoid satellite issues.

A conviction is unsafe where the erroneous exclusion of such evidence, combined with judicial conduct that deprives the defendant of the fair and impartial trial to which she is entitled, falls outside the permissible ambit of robust case management. The apparent strength of other prosecution evidence does not cure that cumulative unfairness.

The appellant pleaded guilty at Snaresbrook Crown Court to wilful neglect of her six-year-old son and was later convicted of wilful assault on him, contrary to section 1(1) of the Children and Young Persons Act 1933.

The prosecution relied on medical evidence, other surrounding evidence and the evidence of a former partner, Mr Straughn. The defence maintained that the child’s physical difficulties and a fall downstairs explained the bruising. It further alleged that Mr Straughn had fabricated his allegations after the appellant reported that he had robbed her.

The trial judge refused to admit evidence of Mr Straughn’s bad character. The appellant also complained of the handling of medical evidence and of judicial hostility and bias. The central issue was whether those matters had rendered the conviction unsafe.

1. Appeal allowed. The conviction for wilful assault was quashed. No retrial was sought.

2. The trial judge wrongly rejected the application to adduce Mr Straughn’s bad character. He failed to address the purposes advanced by the defence. The evidence was not sought merely to explain why the police became involved or to establish bad feeling between the parties. It was capable of supporting the case that Mr Straughn fabricated his allegations to divert attention from the alleged robbery, and of challenging his credibility as the only direct witness of assault.

3. The risk of satellite litigation did not justify wholesale exclusion. The proper response could have been to limit the extent of the enquiry. Alternatively, the prosecution could have elected not to call Mr Straughn if his evidence added too little to its case.

4. The complaint concerning Dr Caudwell did not, by itself, make the conviction unsafe. Although the defence could not cross-examine her, the prosecution omitted the adverse passages of her statement and agreed that her earlier reports could be read. The material prejudice from the inability to cross-examine was therefore removed.

5. The court also accepted material aspects of the complaint about the judge’s conduct, including the unjustified manner in which the appellant was removed from the dock. Trial judges have wide latitude and may take robust case-management decisions. But the erroneous bad-character ruling and the judicial conduct, especially cumulatively, deprived the appellant of the fair trial to which she was entitled. They took the case outside the wide and permissible ambit of case-management powers, notwithstanding the strength of the prosecution case.

• Court of Appeal (Criminal Division): Appeal against conviction allowed; the conviction was quashed.
• Crown Court at Snaresbrook: The appellant pleaded guilty on 14 December 2009 to wilful neglect and was convicted on 18 December 2009 of wilful assault of a child under 16.