Neutral Citation Number: [2010] EWCA Crim 2145
Case No. 2009/04429/B1
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Friday  3  September  2010

B e f o r e:

LORD  JUSTICE  ELIAS

MR  JUSTICE  SIMON

and

HIS  HONOUR  JUDGE  STEPHENS  QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
__________________

R E G I N A

- v -

PAUL  WILLIAM  HARDING
__________________

Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone 020 7404 1400; Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
__________________

Mr H Barton appeared on behalf of the Appellant

Mr Ben Morris appeared on behalf of the Crown
____________________
J U D G M E N T

LORD JUSTICE ELIAS: 
1.  On 31 July 2009, in the Crown Court at Liverpool, before His Honour Judge Swift, the appellant was convicted of one count of robbery and one count of attempted robbery.  He had earlier pleaded guilty to a count of possessing a Class A drug (crack cocaine).  On 16 October 2009 he was sentenced on counts 1 and 2 to an indeterminate sentence of imprisonment for public protection under section 225 of the Criminal Justice Act 2003.  The period of six years and seven months was specified as the minimum term concurrent on each count.  No separate penalty was imposed with respect to the drugs offence.  The appellant appeals against conviction by leave of the Full Court.

2.  A co-accused, Paul Dyson, pleaded guilty to the counts of robbery and attempted robbery.  He was also sentenced to imprisonment for public protection with a minimum term of five-and-a-half years.  In his case it is pertinent to note that the couple who were robbed had permitted him to stay with them for some weeks when he was facing personal difficulties. 

3.  The background to the case was succinctly summarised by the judge in his summing-up as follows:

		".... [Mr and Mrs Devon] were at home that evening when Mr Dyson [the co-accused] came to the house with two other men.  He said he had come back to return some keys.  He asked to use the toilet and Mr Devon let the three men come in.  One of the other two asked for a drink of water.  Mrs Devon asked whether they would all like a cup of tea and for a few minutes all seemed well; they were sitting and talking.  One of them had a carrier bag with him.  The prosecution say that suddenly that man pulled a knife from under his shirt, demanded first money, then jewellery.  Both that man, Mr Dixon, and the third man, became aggressive and frightening.  That man took some blue rope and white cable from the carrier bag and tied Mr Devon up, then Mrs Devon was tied up.  He took Mr Devon's watch and bracelet and necklace.  ....  Those items were stolen with the use of force.  Then there was an attempt to take Mrs Devon's jewellery.  She kicked out and her jewellery was not in fact taken.  ....  She shouted that she was going to call the police.  The three men left but only after the telephone wire had been cut."

4.  The robbery count related to the taking of the jewellery from Mr Devon.  The attempted robbery count related to the attempt to take jewellery from Mrs Devon.

5.  There was certain expert evidence which was relied upon by the prosecution.  First, there was evidence that the appellant's DNA was present on a glass.  As we have set out, Mr Devon said in his evidence that one of the robbers had drunk a glass of water during the course of the robbery.  In addition, there was forensic evidence that a mixed DNA profile had been found on a plastic-coated clothes wire.  That wire had been used to tie up Mr Devon.  The DNA found on the wire was consistent with being a mixture of DNA from Mr and Mrs Devon and from the appellant.  The way in which the expert put it was that the stronger peaks in the profile matched the appellant's profile.  However, she accepted that there was a possibility that someone else, who coincidentally shared the characteristics of the appellant's profile and who had touched the plastic-coated wire, would produce the same components in that mixed profile.  She was unable to make any reliable statistical analysis of that possibility.  It is for that reason that the judge properly and fairly referred to that evidence  as being consistent with the appellant's presence at the robbery but plainly not establishing it.

6.  The defence case was that the appellant had no involvement in the robbery.  Although he had made no comment during his police interview, he contended that there was an innocent explanation for the presence of the DNA on the glass.  He gave evidence that on a previous occasion he had visited the co-accused Dyson, whom he knew was staying at the Devons’ house, and he had been given a glass of water.  He denied any involvement in the robbery.  His counsel submitted that the DNA evidence on the wire was unreliable.

7.  The ground of appeal concerns the admission of certain evidence going to the appellant's character arising from certain previous convictions.  After the appellant had given his evidence in-chief, but before he was cross-examined, the judge acceded to a renewed application by the Crown to introduce bad character evidence under section 101(1)(d) of the Criminal Justice Act 2003.  An application had originally been made at the start of the trial.  At that point the judge indicated that it was not appropriate to determine the application then, but that counsel should wait until the prosecution evidence had been completed and in fact it was renewed after the defendant had given his evidence in chief.  The judge permitted the evidence to be adduced.
  As a consequence the appellant was cross-examined in relation to certain previous convictions for robbery.  There were eight offences for which he was sentenced to nine years' imprisonment on 26 June 1989 at Liverpool Crown Court.  The details of those robberies were not available to the court, merely the fact that they had occurred.  In addition, there was a single offence of robbery for which on 15 November 1996 at the Crown Court at Chester the appellant was sentenced to six years' imprisonment.  The facts of that robbery were that three males entered a rural post office in a stolen Mini van.  Two males entered the post office, one carrying a knife and the other a hammer.  The staff were threatened and cash was stolen.

8.  The appellant's trial had initially taken place before His Honour Judge Lyon.  However, because of difficulties which the legal representatives faced, that trial had to be aborted.  An application to introduce the same bad character evidence under the same gateway had been made to Judge Lyon, who had refused it.  This information was before His Honour Judge Swift.  Counsel for the appellant submitted that the approach of Judge Lyon was right and that it should be followed by Judge Swift.  Judge Swift declined to accede to that submission.  The basis on which he admitted the evidence was that there was a clear issue between the appellant and the prosecution as to the appellant's propensity to commit offences of this kind and that in the circumstances it was right to admit it.

9.  The basis of the appeal is that the judge was wrong to allow the evidence of the appellant's previous robbery convictions to be adduced before the jury and that the admission of that evidence renders the conviction unsafe.  Initially, there were three grounds of appeal but leave was given by the Full Court in relation to only one.  The original ground relied upon, but not now pursued, was that the matter had effectively been determined by His Honour Judge Lyon and that His Honour Judge Swift ought to have felt bound by that decision.  Plainly that cannot be right.  The trial judge must determine the issue in the light of the material before him.  Indeed there was additional evidence before him of the DNA which was found on the clothes-wire.  To that extent the situation was different from that which had faced His Honour Judge Lyon.  Mr Barton no longer pursues that ground; he simply submits that His Honour Judge Lyon was right and that we should recognise that fact.

10.  The second ground of appeal is that this was not an appropriate case in which to allow the evidence to be adduced; that it was adduced merely to bolster a weak case.  The evidence was admitted under the gateway pursuant to section 101(1)(d) of the 2003 Act, which provides that bad character evidence is admissible where it is relevant to an important matter in issue between the defence and the prosecution.  Section 103(1)(a) then provides that such a matter includes "the question whether the defendant has a propensity to commit offences of this kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence".

11.  The leading case on the proper construction of these provisions is R v Hanson [2005] EWCA Crim 824 in which the Vice President (Rose LJ) identified the following three questions that need to be considered when an application of this nature is being advanced:

		"7. ....

			1.  Does the history of conviction(s) establish a propensity to commit offences of the kind charged?

			2.  Does that propensity make it more likely that the defendant committed the offence charged?

			3.  Is it unjust to rely on the conviction(s) of the same description or category; and, in any event, will the proceedings be unfair if they are admitted?"

The Vice President went on to say that "evidence of bad character cannot simply be used to bolster a weak case or prejudice the minds of the jury against the defendant”  Later he observed that if a judge has directed himself correctly, this court will be very slow to interfere with a ruling as to admissibility.  

12.  On behalf of the appellant, Mr Barton submits that this is a classic case where there was no satisfactory evidence linking the appellant to the crime and that the admission of the robbery antecedents infringed the principle that past convictions should not be admitted to bolster a weak case.  He submits that the prejudice which would be created as a result of admitting this evidence was out of all proportion to its significance.  The appellant had provided an account explaining the finding of his DNA on the glass.  The DNA on the wire was unreliable evidence which did not fix the appellant at the robbery; it was merely consistent with that.  He also points out that Mr Devon had been unable to identify the appellant in an identification parade.  The unfairness was compounded by the fact that there were no details of the 1989 robberies; they might have been of an entirely different nature.

13.  We entirely reject this submission.  In our judgment, there was very powerful evidence which placed the appellant at the location of the robbery, namely the presence of the DNA on the glass.  He did not, and could not, deny that.  For the first time during the course of his evidence he put forward an innocent explanation to the effect that he had visited his co-accused at the Devons' house and had been given a drink by him.  In addition, there was the DNA on the clothes-wire.  We accept that that does not conclusively establish his involvement, but it significantly increased the likelihood that he was present during the robbery.  There was therefore evidence that he had been at the house and some evidence, supporting the prosecution case, that he was involved in the robbery.  The fact that the appellant had committed a series of robberies in the past was, in our judgment, plainly highly relevant to the question whether his innocent explanation for the DNA was likely to be true.  They established a propensity to rob, and that necessarily increased the likelihood that the DNA on the glass had been deposited during the robbery.  In this context it seems to us that the detail of these 1989 robberies is not, in truth, significant.  The likelihood that the DNA was deposited on the glass during the course of the robbery increases when the appellant has a history of committing robberies, irrespective of the way in which he has carried them out.  In any event, the robbery committed in 1996 displayed similar features to the instant offence.

14.  Accordingly, in our judgment, the submission advanced by the appellant fails.  This evidence was properly admitted.  It did not bolster a weak case.  It was used by the court to assist the jury to assess the explanation given by the appellant for his DNA being found on the glass.  It was material to the question whether or not that innocent explanation was likely to be true.

15.  Mr Barton also submits as his final ground of appeal that in any event the appellant was seriously prejudiced by the fact that the evidence was not adduced until the appellant had given his evidence.  The judge had indicated that he would not determine the application, if it were to be renewed, until the end of the prosecution case.  Mr Barton has no quarrel with that.  Indeed, that is in accordance with the principles established in R v Brima [2007] 1 Cr App R 24.  However, in fact the renewed application was not made at that point; it was made only after the appellant had given his evidence in-chief.  He submits that that was unjust to the appellant because it meant that the evidence was extracted from him in the course of cross-examination, which would have given a different impression to the jury than they would have obtained had counsel been able to adduce the evidence before them in his examination in-chief.  Had counsel been able to do that, he may have been able to put a different gloss on its significance.
16.  We are not satisfied that there was in this case any real prejudice to the appellant because of the timing of the renewed application.  We recognise that there will be many cases where it will be desirable for the application to be made at the end of the prosecution case, and there may be prejudice to a defendant if the application is made only after he has given evidence.  However, as Mr Morris pointed out on behalf of the Crown, this was a slightly unusual case, to this extent.  The appellant had declined to give any answers in interview to explain how his DNA came to be found on the glass.  He had indicated in his defence statement that this was an explanation, but it was not clear that he would give evidence or proffer this as an explanation if he did.  Counsel submitted that the significance of the convictions only surfaced once it was clear that he would be giving evidence and would be seeking to explain the presence of the DNA during the course of it. Had that evidence not been given, the case against the appellant would have been overwhelming because of the presence of the DNA on the glass and the evidence from Mr Devon that one of the robbers had drunk from the glass.  It may not then have been necessary to have adduced the evidence of the appellant's previous convictions.  Mr Morris fairly says that he does not know whether or not he would have renewed the application had the appellant not chosen to give evidence.  

17.  In our judgment Mr Morris has provided a sensible explanation as to why his renewed application was made at the time that it was.  We quite understand why it was left until that point in the proceedings.  We would only add (and this is not intended as a criticism of Mr Barton), that as His Honour Judge Stephens pointed out in the course of argument, once the renewed application had been made, albeit that the appellant had by then completed his evidence in-chief, it would have been open to his counsel to have asked the court to allow him to be recalled so that the evidence of the previous convictions could have been put to him by his counsel. This would have avoided the difficulties which have been identified by Mr Barton in this case.  With hindsight perhaps, that would have been the best thing to do. 

18.  We are satisfied that there was no prejudice to the appellant resulting from the timing of the renewed application; nor was there any injustice from the fact that the judge acceded to it. Accordingly, this appeal against conviction is dismissed.

	________________________________________________