Clark, R. v

Section 108(2) of the Criminal Justice Act 2003 applies only where the offence charged was committed or alleged to have been committed when the defendant was aged 21 or over. It cannot be invoked by a “near miss” where the defendant was younger.

In assessing bad-character evidence, a court must be sensitive to convictions for offending committed in childhood. It may nevertheless assess the offending in its totality. The age of the offender does not inevitably prevent earlier violent convictions from demonstrating propensity. Whether otherwise admissible evidence should be excluded under section 101(3) is an evaluative discretionary decision. An appellate court will not interfere without a proper basis.

Following a retrial at Chelmsford Crown Court, Lucy Clark was unanimously convicted of assault occasioning actual bodily harm. The prosecution case was that she struck the complainant with a shoe and then assaulted her further. Clark maintained that the complainant had attacked her and that any contact with the shoe was accidental.

Credibility was central. The trial judge admitted Clark’s previous convictions for violence, including convictions for conduct when she was under 14, through the section 101(1)(d) and (g) gateways of the Criminal Justice Act 2003. He declined to exclude the evidence under section 101(3).

On appeal against conviction, Clark contended that the convictions did not establish propensity, that their admission was unfair, and that section 108(2) should have informed the judge’s discretion. The central issue was whether the admission ruling rendered the conviction unsafe.

1. Appeal dismissed. The trial judge was entitled to admit the appellant’s previous convictions for violence, and there was no basis to regard the conviction as unsafe.

2. Section 108(2) of the Criminal Justice Act 2003 did not apply. Its express condition is that the offence charged was committed or alleged to have been committed when the defendant was aged 21 or over. The appellant was 20. The court rejected a “near miss” approach. Accordingly, the provision was not one which had to be drawn to the trial judge’s attention before he exercised his discretion.

3. Judges should be sensitive to reliance on convictions for offending committed when the defendant was a child, particularly a young child. The appellant’s age, her care background, the concentration of the 2007 offences, and the absence of later violent convictions were therefore matters requiring careful consideration. They did not compel exclusion. The judge was entitled to consider the violent offending in its totality, rather than first excluding the 2005 convictions and then treating the 2007 convictions in isolation. On the facts, the totality was capable of demonstrating a propensity to violence.

4. The bad-character evidence also fell within the conceded section 101(1)(g) gateway. In a case turning on competing accounts, the judge could conclude that the jury should have the full relevant picture and that withholding it could distort the assessment. He was also entitled to reject the suggestion that the prosecution was using the convictions merely to reinforce a weak case.

5. The decision under section 101(3) not to exclude the evidence was an evaluative exercise within the judge’s discretion. The Court of Appeal found no reason to interfere. The jury reached its unanimous verdict after a fair and proper summing-up.

• Court of Appeal (Criminal Division) — appeal against conviction dismissed.
• Chelmsford Crown Court — following a retrial before Judge Ball QC and a jury, the appellant was unanimously convicted of assault occasioning actual bodily harm. No citation is stated.