Turnbull, R. v

For evidence of a co-defendant’s bad character to be admitted under Criminal Justice Act 2003, section 101(1)(e), it must have substantial probative value. That requires more than relevance. The assessment is fact-sensitive and may take account of more probative evidence already before the jury on the same issue.

A trial judge may permit cross-examination on a defence statement made on instructions, despite later ambiguity or a changed plea. The summing-up must fairly explain the circumstances and leave any genuine inconsistency to the jury. A misleading observation will not render a conviction unsafe where, read as a whole, the directions correctly identify the issue and the evidence of the required intent is strong.

The appellant was convicted in the Crown Court at Portsmouth of causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861. He had pleaded guilty to the alternative section 20 offence. The issue at trial was whether he intended to cause grievous bodily harm during an attack on the complainant.

He appealed against conviction. He challenged the exclusion of his co-accused’s old youth convictions, the permission to cross-examine him on a defence statement, and aspects of the summing-up concerning that statement and his guilty plea to the section 20 offence. The central issue was whether those rulings and directions made the conviction unsafe.

1. Appeal dismissed. The judge was entitled to exclude the co-accused’s old juvenile convictions. Under section 101(1)(e) of the Criminal Justice Act 2003, evidence must have substantial probative value, not merely relevance. The convictions were old and arose when the co-accused was aged 15 or 16. Their limited value was substantially eclipsed by admissible evidence of a violent assault by the co-accused on the same evening.

2. The judge fairly permitted cross-examination on the appellant’s defence statement. Although it had been produced in unusual circumstances, it had been drafted on instructions and could fairly be treated as his account at the time. Cross-examination could explore what he intended and understood by it.

3. It might have been more satisfactory for the judge to direct the jury to ignore the defence statement after learning that counsel had not advised the appellant about the legal requirement of reasonable force in self-defence. However, the direction actually given was acceptable. It explained the circumstances and possible ambiguity, and left the jury to decide whether there was a significant inconsistency and, if so, whether any explanation reduced its significance.

4. The observation that the guilty plea under section 20 was evidence of an intention to use unlawful violence was misleading and confusing. It did not concern the real issue, namely an intention to cause really serious harm for section 18. Read as a whole, however, the summing-up correctly stated that the section 20 plea did not prove the section 18 intent and correctly directed the jury on the elements of the section 18 offence.

5. In any event, the conviction was safe. Independent witnesses gave strong evidence that the appellant kicked the complainant while he was on the ground, which supported the inference that he intended to cause really serious harm.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2013] EWCA Crim 676.
• Crown Court at Portsmouth: on 9 July 2012, convicted the appellant of causing grievous bodily harm with intent under section 18 of the Offences against the Person Act 1861; he had pleaded guilty to the alternative section 20 offence.