South, R. v

Under section 100 of the Criminal Justice Act 2003, a proposed alibi witness’s credibility may be a matter of substantial importance. The court must nevertheless assess whether each category of previous misconduct has substantial probative value. It must consider the nature, number, age and similarity of the relevant conduct. Convictions involving deception, forgery or false instruments may be probative of truthfulness. Other dishonesty convictions should not be admitted merely because they are numerous.

An erroneous admission of wider bad-character evidence, coupled with a missing direction, will not render a conviction unsafe where the remaining evidence is sufficiently powerful.

The appellant was convicted at Bournemouth Crown Court of dwelling-house burglary and sentenced to 39 months’ imprisonment for that offence. The prosecution relied on a stolen iPod found in his possession, footwear-mark evidence, his previous burglary convictions, and his late failure to mention an alibi or his explanation for the iPod.

After the appellant gave evidence, the trial judge permitted the Crown to reveal all 53 dishonesty convictions of Michael White, the proposed alibi witness, under section 100 of the Criminal Justice Act 2003. The judge gave no direction on the use of those convictions. The appeal challenged that ruling and, separately, the footwear-mark evidence. The central issue was whether the errors concerning Mr White’s convictions rendered the conviction unsafe.

1. Appeal dismissed. The judge erred by admitting all 53 of Mr White’s convictions and by failing to direct the jury on their use. The conviction was nevertheless entirely safe.

2. The credibility of an alibi witness is a matter in issue and of substantial importance where the alibi, if it might be true, would require acquittal. Under section 100(1)(b) of the Criminal Justice Act 2003, the question was whether the convictions had substantial probative value concerning the truthfulness of Mr White’s proposed alibi evidence.

3. The trial judge had to assess the statutory factors. He should have distinguished offences involving untruthfulness from other dishonesty, considered their timing, and compared them with the alleged conduct of giving a false alibi account on oath. The convictions for obtaining by deception, forgery and using false instruments had substantial probative value and should have been admitted. The remaining convictions should not have been admitted.

4. The Court applied the guidance in R v T (Footwear mark evidence) [2011] 1 Cr App R 9. The expert’s opinion was experience-based, identified the matching features of the footwear and mark, and left the jury able to decide whether they were sure of the comparison. It did not convey impermissible scientific precision.

5. The improperly admitted convictions and absent direction did not undermine safety. The appellant’s recent possession of the stolen iPod, his incredible explanation for it, the footwear-mark evidence, his late alibi, and the other properly admitted evidence provided a powerful case against him. The appeal was therefore dismissed.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2011] EWCA Crim 754.
• Crown Court at Bournemouth: convicted the appellant of burglary on 9 September 2010 and sentenced him on 8 October 2010.