Fitzgerald, R v

A defence which alleges that prosecution witnesses fabricated allegations, conspired to lie, or previously lied to the police goes beyond a mere denial of guilt. It is an attack on those persons’ character for the purposes of Criminal Justice Act 2003, section 101(1)(g). Evidence of the defendant’s bad character may therefore be admitted, subject to the statutory fairness safeguard in section 101(3). The admission of a limited selection of convictions, coupled with clear directions restricting their use, may adequately counter prejudice and will not ordinarily render a conviction unsafe.

The applicant sought renewed leave to appeal against his jury conviction for attempted robbery, after a single judge had refused leave on the papers.

At trial, the prosecution alleged that the applicant and a co-defendant threatened and assaulted Mr Byrne while demanding money. The applicant denied any threats, demand or violence. His evidence alleged that Mr Byrne had previously lied to the police and that Mr Byrne and his partner had conspired to give a false account of the incident.

The prosecution then obtained permission to adduce agreed evidence of the applicant’s previous convictions under section 101(1)(g) of the Criminal Justice Act 2003. The issue was whether the defence case was an attack on the prosecution witnesses’ character and, if so, whether admitting the evidence was unfair under section 101(3).

1. The renewed application for leave to appeal was refused. There was no arguable basis for concluding that the conviction was unsafe.

2. The applicant’s evidence was not merely an emphatic denial of the prosecution case. It alleged that Mr Byrne had made a false criminal allegation to the police and that Mr Byrne and his partner had conspired to make serious false allegations about the events in issue. Those allegations amounted to assertions of criminal or reprehensible conduct and therefore attacked their character within section 106 and section 101(1)(g) of the Criminal Justice Act 2003.

3. The court applied the distinction in R v Pedley [2014] EWCA Crim 848: a simple denial is different from alleging that the principal witness has deliberately and elaborately concocted the allegation. The recorder was entitled to admit the bad-character evidence.

4. There was no arguable error in the recorder’s decision under section 101(3). The application was confined to more recent convictions, and the recorder’s directions adequately limited the risk of prejudice. Her direction made clear that the evidence could not show a propensity to commit robbery.

5. The court added that prosecuting counsel would normally give an informal warning if proposed evidence or cross-examination might trigger a bad-character application. However, the absence of such a warning, if absent, did not permit the applicant to advance the character attack without consequence.

• Court of Appeal (Criminal Division) — Following the single judge’s refusal of leave on the papers, the court refused the renewed application for leave to appeal against conviction: [2017] EWCA Crim 556.
• Jury trial — The applicant was convicted of attempted robbery after the recorder admitted agreed evidence of prior convictions.