Speed, R. v

Where a defendant chooses to adduce previous convictions under gateway (b) of section 101(1) of the Criminal Justice Act 2003, the jury may consider their bearing on the defendant’s general credibility. The convictions do not thereby establish a propensity to commit a different type of offence, nor a propensity to be untruthful. A tailored direction may refer to the defendant’s admitted previous conduct in pleading not guilty when knowing guilt, provided the jury are told that the matter may be disregarded and can only support an otherwise independent prosecution case. It cannot prove the charged offence.

The defendant was convicted at Isleworth Crown Court of three counts of exposure contrary to section 66(1) of the Sexual Offences Act 2003. The prosecution case depended principally on the credibility of a seven-year-old complainant. The defendant denied the allegations and adduced his previous convictions in order to show that he had no convictions for sexual offending.

He appealed against conviction, contending that the trial judge had wrongly permitted the jury to treat his admission that he had previously pleaded not guilty when guilty as relevant to his credibility. The central issue was whether the judge’s direction on the limited use of the defendant’s previous convictions amounted to a misdirection or rendered the convictions unsafe.

1. Appeal dismissed. The trial judge did not misdirect the jury, and the convictions were safe.

2. The defendant had himself adduced his convictions through gateway (b) of section 101(1) of the Criminal Justice Act 2003. That gateway gave him an entitlement to introduce the evidence, without an admissibility discretion. It did not, however, give him a right to obtain the favourable point that he had no sexual convictions while insulating his record from its possible effect on credibility.

3. The court applied the general approach in R v Singh [2007] EWCA Crim 2140. Where credibility is in issue, previous bad character may bear on the general creditworthiness of the defendant, even though it does not show a statutory propensity to be untruthful. The approach was equally apposite where the defendant, rather than the prosecution, had introduced the convictions under gateway (b).

4. The direction was carefully confined. The judge told the jury that convictions for offences different from exposure could not make the defendant more likely to have committed the charged sexual offences. He also distinguished past dishonesty from untruthfulness. The jury were entitled, but not obliged, to take account of the defendant’s admission that he had previously pleaded not guilty when knowing himself guilty and had “tried it on”. That matter could only support an independently established prosecution case; it could not prove guilt.

5. R v Tollady [2010] EWCA Crim 2614 did not assist the appeal. Its concern was a single, minor conviction following a guilty plea and an untailored direction about propensity to be untruthful. This case involved a serious record, the defendant’s own evidence about his earlier conduct, and a direction expressly limited to general credibility. In any event, any error would have been minor and would not have affected the safety of the convictions.

• Court of Appeal (Criminal Division): dismissed the defendant’s appeal against conviction in Speed, R. v [2013] EWCA Crim 1650.
• Crown Court at Isleworth: on 27 October 2011, convicted the defendant by a 10–2 majority of three counts of exposure and imposed concurrent four-month sentences.