Singh, R v

A fixed penalty notice is neither a conviction nor an admission or proof of criminal conduct. Unless evidence of the underlying facts is properly adduced, it cannot impugn a defendant’s good character or reduce entitlement to an appropriate good character direction.

Dishonesty does not, without more, establish a propensity to be untruthful. A direction which treats an irrelevant notice as adverse credibility material is a material misdirection, particularly where the verdict depends upon a conflict between the complainant’s and defendant’s accounts.

The appellant was convicted at the Crown Court at Snaresbrook of two counts of sexual activity with a child contrary to Sexual Offences Act 2003, section 9(1), and one count of attempted rape of a child.

The prosecution alleged that he knew the complainant was 13 and that she did not truly consent. He accepted sexual activity but maintained that it was consensual and that he reasonably believed she was over 16. The jury therefore had to decide consent, the appellant’s belief as to age, and attempted rape.

Although he had no convictions or cautions, agreed facts concerning fixed penalty notices, cannabis warnings and an arrest for breach of the peace were put before the jury. The appeal concerned whether their admission and the resulting character direction rendered the convictions unsafe.

1. Appeal allowed. The convictions were unsafe, were quashed, and a retrial was ordered.

2. The fixed penalty notices should not have been put before the jury. Applying Hamer [2011] 1 WLR 528, a penalty notice is not a conviction, an admission of guilt or proof that an offence was committed. It does not impugn good character or affect entitlement to a good character direction. Evidence of the underlying facts may sometimes be admissible, but none was adduced here. The same conclusion applied to the arrest for breach of the peace, since the appellant had made no admissions and the incident was irrelevant to the issues for the jury.

3. The judge’s direction compounded that error. It suggested that the appellant had acted criminally and allowed the jury to treat the alleged dishonesty underlying a penalty notice as reducing his credibility. Applying Hanson [2005] 1 WLR 3169, dishonesty is not of itself evidence of a propensity to be untruthful. Such an inference depends on the circumstances of the earlier matter, including a rejected untruthful account or conduct involving false representations. Those conditions were not established by a fixed penalty notice.

4. The court also considered the character-direction categories in Hunter [2015] 2 Cr. App. R. p.116. If reprehensible conduct is adduced by the defence but is not relied on by the Crown, the judge must decide the appropriate direction by reference to fairness. Here the direction was mistaken in analysis and unclear in expression.

5. Credibility was crucial because the case depended on directly conflicting accounts. The material misdirections therefore could not be treated as harmless. A retrial was ordered.

1. Court of Appeal (Criminal Division): allowed the appeal, quashed the convictions and ordered a retrial.

2. Crown Court at Snaresbrook: convicted the appellant by a majority of two counts under section 9(1) of the Sexual Offences Act 2003 and attempted rape of a child.