Clarke, R. v

Where a defendant attacks a complainant’s character, the bad-character gateway in section 101(1)(g) of the Criminal Justice Act 2003 may permit the jury to consider the defendant’s convictions when assessing the competing accounts. The restrictive requirement of a propensity to untruthfulness applies to the separate gateway in section 101(1)(d), not generally to gateway (g).

Admission remains subject to the mandatory fairness safeguard. The age of convictions is material, but historic convictions are not automatically unfair where the character attack is fundamental and the record fairly assists the jury’s assessment. A clear direction that convictions do not prove the charged offences can adequately prevent improper use.

The appellant was convicted at Inner London Crown Court of five indecent assaults against his two stepdaughters and one count of sexual activity with a child. He received concurrent and consecutive sentences totalling eight years’ imprisonment, with associated orders.

He denied all sexual contact. His defence alleged that one complainant had fabricated allegations out of resentment and had persuaded her sister to do the same. Following that attack on the complainants’ character, the trial judge admitted the appellant’s full antecedent record under section 101(1)(g) of the Criminal Justice Act 2003.

On appeal, he challenged the admission of those convictions, their age, and the adequacy of the summing-up. The central issue was whether their admission rendered the convictions unsafe.

1. Appeal dismissed. The convictions were safe. The trial judge was entitled to admit the appellant’s antecedents, and the summing-up gave the jury an adequate direction on their proper use.

2. Under section 101(1)(g) of the Criminal Justice Act 2003, a defendant who adduces evidence that a complainant fabricated an allegation, or induced another witness to lie, attacks that person’s character within section 106. The statutory gateway was therefore engaged.

3. The court distinguished the restrictive approach applicable to section 101(1)(d). The requirement, discussed in Hanson [2005] EWCA Crim 824, to establish a propensity to untruthfulness governs evidence adduced through that separate gateway. It does not restrict admission under gateway (g). The principle under gateway (g) is one of fairness between competing accounts: where the defendant asks the jury to assess a witness’s character in deciding whether to believe that witness, the jury may also assess the defendant’s character. Convictions may consequently be relevant in a general sense, and detailed circumstances will not usually be necessary unless they are needed to establish a propensity to untruthfulness.

4. Section 101(3) nevertheless imposed a mandatory duty to exclude evidence whose admission would adversely affect the fairness of the proceedings. The court had regard to section 101(4) and accepted that historic convictions alone might, in another case, be too remote fairly to represent a defendant’s contemporary character. Here, however, the character attack was fundamental to the defence and the jury already knew of a comparatively recent drugs conviction because of the defence case. The judge could fairly permit the jury to see the full record.

5. The judge’s discretionary ruling was neither plainly wrong nor Wednesbury unreasonable. His direction also made clear that the convictions did not prove the sexual offences and that a person with a criminal record may still be truthful. No jury could have understood the record alone to establish guilt.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction: [2011] EWCA Crim 939.
• Inner London Crown Court: the appellant was convicted by HHJ Issard-Davies and a jury on 10 September 2010. He was sentenced on 8 October 2010 to a total of eight years’ imprisonment, with associated orders.