Mittal v R

A conviction is not unsafe merely because the status of an overseas prosecutorial warning was not fully understood at trial. Where both parties have deliberately kept all character evidence from the jury, and no request is made for a good-character direction, the judge may decline to give a conventional direction. A defendant cannot obtain that direction solely because the jury knows of a professional status. The defence may reasonably elect to avoid advancing positive good character where that would expose the defendant to cross-examination about admitted adverse facts. Courts should, however, be given full information about such warnings during pre-trial preparation.

The appellant, a doctor, was convicted at Canterbury Crown Court of stealing £130 from a patient attending her medical practice. She was fined £5,000 and ordered to contribute to prosecution costs.

Shortly before trial, the prosecution disclosed a Scottish Procurator Fiscal warning concerning an earlier alleged shoplifting incident. The judge and counsel agreed that no character evidence would be put before the jury unless the appellant positively relied on good character. No such evidence or direction was given.

The appellant appealed out of time, alleging that uncertainty about the warning deprived her of a good-character direction and that the judge should have ruled on its status as bad-character evidence.

Appeal dismissed. The court granted an extension of time and leave to appeal because the point was arguable, but held that the conviction was safe.

1. The precise status in Scottish law of the Procurator Fiscal warning should have been established earlier. In future the Crown should provide the court with full information about such warnings during the pre-trial process. That procedural shortcoming did not, however, affect the safety of this conviction.
2. It was immaterial whether the warning itself involved an admission of guilt. Had the appellant advanced a positive case of good character, the Crown might successfully have sought leave to cross-examine her on the admitted factual background to the Scottish incident. Trial counsel was entitled to avoid that risk, while the jury already knew that the appellant was a practising doctor.
3. Neither party put evidence of character before the jury and neither sought a conventional good-character direction at the close of the evidence. In those circumstances, it would not have been sensible to seek such a direction. The trial judge had discretion to refuse it because both sides had agreed to exclude character from the jury’s consideration.
4. The appellant’s reliance on Hamer [2011] 1 Cr App R 3, concerning a fixed penalty notice under the Criminal Justice and Police Act 2001, did not establish that this different warning required a good-character direction. The Crown case was strong even without any adverse character material.

• Court of Appeal (Criminal Division) — granted an extension of time and leave to appeal, but dismissed the appeal and upheld the conviction in [2016] EWCA Crim 451.
• Crown Court at Canterbury — following trial before HHJ O’Mahony and a jury, convicted the appellant of theft on 9 May 2014; on 19 June 2014 imposed a £5,000 fine and a prosecution-costs contribution.