No. 96/6554/X2

IN THE COURT OF APPEAL
CRIMINAL  DIVISION

								Royal Courts of Justice
								The Strand
								London WC2

								Thursday  5  June  1997

	B e f o r e:

	THE  LORD  CHIEF  JUSTICE  OF  ENGLAND
	(Lord Bingham of Cornhill)

	MR  JUSTICE  MAURICE  KAY

	and

	MR  JUSTICE  TOULSON

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	R E G I N A
 
	- v -

	CHARISSE  CRAWFORD

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	Computer Aided Transcription by
	Smith Bernal, 180 Fleet Street, London EC4
	Telephone 0171-831 3183
	(Official Shorthand Writers to the Court)
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MR MICHAEL HOUSE appeared on behalf of THE APPELLANT

MR JASON DUNN-SHAW appeared on behalf of THE CROWN

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	J U D G M E N T
	(As Approved by the Court)
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Thursday  5  June  1997

THE LORD CHIEF JUSTICE:  In August 1996 the appellant stood trial jointly with a co‑defendant in the Crown Court at Southwark before Mr Assistant Recorder Carey‑Hughes and a jury.  The main issue which arises on the appeal is whether the Assistant Recorder was correct to rule that the co‑defendant might cross‑examine the appellant on her previous convictions.  
         The appellant and her co‑defendant, a Miss Anderson, were jointly charged on an indictment which contained one count of robbery.  The allegation against them was that on 10 April 1996 they robbed Tasleem Jamal of her handbag and its contents.  
         The prosecution case is summarised with admirable accuracy and clarity by the Assistant Recorder in his ruling on this issue, where he said:  
  
		"The prosecution case put shortly is this: a Miss Jamal, the victim in the case, went into some lavatories in McDonald's in Leicester Square.  In there, there were other people.  While she was in there, three black women came in.  They pushed her and tugged at her bag which was on a strap over her shoulder, eventually breaking the strap and making off with the bag.  It is Miss Jamal's evidence that at the time that the theft actually took place it was only she herself and the three black women who were present in the lavatories.  After the bag had been taken from her, Miss Jamal gave evidence that the skinny one of the three black women ‑‑ inferentially Miss Crawford ‑‑ made her way out of the lavatories closely followed by Miss Jamal, who shouted that her bag had been stolen, with Miss Jamal being followed in turn closely by the other two black women ‑‑ inferentially Miss Anderson and a girl who has been referred to only as 'Lisa' who was never apprehended.  It is Miss Jamal's case that all three of the black women took part in the robbery and indeed all three actively pulled at the bag while it was on her shoulder.  
  
		In her interview with the police, Miss Anderson accepted that she had visited McDonald's and the effect of what she had to say was that her two companions ‑‑ again, inferentially Miss Crawford and the absent Lisa ‑‑ were there with her.  But she witnessed no robbery but an alarm had been raised and she and her two companions, Lisa and Miss Crawford, ran out of the lavatories.  
  
		However, the case which has been put on her behalf by Miss Krish in this court is somewhat different.  The case put by Miss Krish is that all three women, that is to say Miss Anderson, Miss Crawford and Lisa, were in the lavatories with Miss Jamal when the robbery took place and that the robbery was carried out by Miss Crawford and Lisa with Miss Anderson as a mere by‑stander.  
		In the course of her evidence, Miss Crawford has accepted that she herself used the lavatories at McDonald's at the material time but the effect of her evidence is that she, Miss Crawford, visited the lavatories on her own, that is to say, without her two companions, and that she had emerged from the lavatories by the time her two companions went in.  She was sitting in the body of the restaurant when she heard a cry to the effect that something had been stolen (and that by inference must be very shortly after the robbery took place if the jury are to accept the evidence of Miss Jamal) and that shortly after that alarm had been raised and she had heard it, her co‑defendant Miss Anderson, accompanied by the girl Lisa, emerged from the lavatories."  

         Thus the prosecution case, founded on the evidence of Miss Jamal, was that she had been robbed by the appellant and Miss Anderson and Lisa jointly in the lavatories at McDonald's at Leicester Square.  She testified that the appellant left the lavatory first, followed by her (Miss Jamal), who was in turn followed by Lisa and Miss Anderson. 
         We have before us a transcript of the evidence which Miss Crawford gave at the trial.  She described how she entered the restaurant with Miss Anderson and Lisa and how they all ordered food.  She then said that she went to the lavatory on her own, leaving the others at the table and, having used the lavatory, returned to the table.  She then said that the other two went on their own to the lavatory, leaving her in the restaurant at the table where she remained for a period which she estimated at eight minutes.  She then said that the others came out and that she heard a girl shouting about her purse having been taken at the time when the others came out.  She then said that she walked out of the restaurant with Miss Anderson and Lisa.  In cross‑examination she stated in terms that she was not in any way involved in the theft and that she did not go to the lavatory at the time when Miss Anderson and Lisa had been there.  
         On behalf of Miss Anderson it was put to Miss Jamal in cross‑ examination that Miss Anderson had been present in the lavatory when the robbery occurred, but that she had taken no part and that she had left after Miss Jamal.  It follows, therefore, that both the appellant and Miss Anderson challenged Miss Jamal's account that they were party to robbing her, the appellant because she said she was not there at the time of the robbery in the lavatory and had nothing whatever to do with it, and Miss Anderson because she said she had played no part whatever in the robbery, although she had been there at the time when the robbery had occurred.  On one point, however, Miss Jamal, the appellant and Miss Anderson were all agreed, namely, that immediately after the robbery had occurred Miss Anderson followed Miss Jamal out of the lavatory.  On that point there was no issue between Miss Anderson and Miss Jamal and no issue between the appellant and Miss Jamal either.  
         During the trial it fell to the appellant, as the first defendant on the indictment, to give evidence first, which she did to the effect summarised.  Counsel for Miss Anderson then applied, in the absence of the jury, to cross‑examine the appellant about her convictions, one of which was a very recent conviction for robbery.  The Assistant Recorder was referred to the relevant and familiar statutory provision: section 1 of the Criminal Evidence Act 1898.  That provides that a defendant shall be a competent witness for the defence whether charged solely or jointly.  That general rule is, however, subject to provisos.  The relevant proviso is paragraph (f) (iii) which reads as follows:  
  
		"A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless ‑‑ 

			....

			(iii)  he has given evidence against any other person charged in the same proceedings."  

The subparagraph is plainly directed to the situation where a defendant is called as a witness and gives evidence against a co‑ defendant jointly charged in the same proceedings.  
         The meaning of the statutory reference to "evidence against any other person" has been the subject of judicial consideration.  In Murdoch v Taylor [1965] AC 574, at 592, Lord Donovan stated:    

		"I myself would .... simply say that 'evidence against' means evidence which supports the prosecution's case in a material respect or which undermines the defence of the co‑accused."  

The subparagraph fell to be reconsidered in R v Bruce and others [1975] 1 WLR 1252.  After discussing the earlier authorities, including Murdoch v Taylor, Stephenson LJ, giving the reserved judgment of the court, said at page 1259:  
  
		"In our judgment, evidence cannot be said to be given against a person charged with the same offence as the witness who gives it if its effect, if believed, is to result not in his conviction but in his acquittal of that offence.  The fact that Bruce's evidence undermined McGuinness' defence by supplying him with another does not make it evidence given against him.  If and only if such evidence undermines a co‑accused's defence so as to make his acquittal less likely is it given against him.  If that puts a gloss upon a gloss, the addition is needed to preserve the natural meaning of the sub‑ paragraph."  

         The most recent detailed consideration of this question is to be found in R v Varley [1982] 2 All ER 519.  Giving the reserved judgment of the court in that case, at page 522 Kilner Brown J said:    
		"Now putting all the reported cases together, are there established principles which might serve as guidance to trial judges when called upon to give rulings in this very difficult area of the law?  We venture to think that they are these and, if they are borne in mind, it may not be necessary to investigate all the relevant authorities.  (1) If it is established that a person jointly charged has given evidence against the co‑defendant that defendant has a right to cross‑examine the other as to previous convictions and the trial judge has no discretion to refuse an application.  (2) Such evidence may be given either in chief or during cross‑  examination.  (3) It has to be objectively decided whether the evidence either supports the prosecution case in a material respect or undermines the defence of the co‑accused.  A hostile intent is irrelevant.  (4) If consideration has to be given to the undermining of the other's defence care must be taken to see that the evidence clearly undermines the defence.  Inconvenience to or inconsistency with the other's defence is not of itself sufficient.  (5) Mere denial of participation in a joint venture is not of itself sufficient to rank as evidence against the co‑defendant.  For the proviso to apply, such denial must lead to the conclusion that if the witness did not participate then it must have been the other who did.  (6) Where the one defendant asserts or in due course would assert one view of the joint venture which is directly contradicted by the other such contradiction may be evidence against the co‑defendant."  

The evidence of one defendant is therefore evidence against a co‑ defendant if it supports the prosecution case against the co‑defendant in a material respect or undermines the defence of the co‑defendant.  That is, as it seems to us, a matter of common sense.  A clear and simple rule was propounded in Murdoch and, although the passage which we have quoted from Bruce involves an element of elaboration, that also seems to us to put the matter clearly and accurately.  
         The essential question put at its simplest is this:  Does the evidence given by the defendant in the witness box, if accepted, damage in a significant way the defence of the co‑defendant?  If so, then the statute provides that the defendant may be asked and obliged to answer questions relating to previous convictions.  If on any factual matter there is no issue between the Crown and a co‑defendant, the defendant's evidence does not damage the defence of the co‑ defendant if the defendant's evidence is also to the same effect.  That, as we understand it, is why Lord Donovan and also Kilner Brown J referred to the defendant's evidence supporting the prosecution case in "a material respect".  If the defendant's defence supports the Crown in a respect which is not contentious, that is not a material respect.  If, however, the defendant's evidence supports the prosecution case on a significant matter in issue between the Crown and the co‑defendant and relative to proof of the commission by the co‑defendant of the offence charged against him, then that is evidence potentially damaging to the defence of the co‑defendant and is to be regarded, for purposes of the statutory proviso, as evidence by the defendant against the co‑defendant.  
         In the course of his very clear and helpful ruling on this issue, to which we would pay tribute, the Assistant Recorder gave three reasons for concluding that the condition in section 1(f) (iii) was satisfied and that accordingly Miss Anderson was entitled to cross‑examine the appellant on her convictions.  The first reason which he gave appears at page 7D, where he said:  
  
		".... the evidence of Miss Crawford [the appellant] directly supports the evidence of Miss Jamal to the effect that Miss Anderson was in the lavatories at the time the robbery took place and that Miss Anderson emerged from the lavatories in the wake of Miss Jamal who was raising the alarm."    

The second reason which he gave appears in the transcript of his ruling at page 9G, where he said:  
  
		".... the evidence of Miss Crawford [the appellant], to the effect that there were two black women out of the three in the lavatories and she herself was absent, must drive the jury to the conclusion that Miss Anderson was more likely to have been a participant."  

His third reason at page 10D of the transcript of his ruling is in these terms:  
  
		"It is open to Miss Anderson to give evidence within this case and it is open to her to reiterate the case put on her behalf by Miss Krish which is that Miss Crawford and the absent Lisa committed the robbery whilst she, Miss Anderson, was a passive by‑stander.  The effect of Miss Crawford's [the appellant's] evidence that she, Miss Crawford, was absent at the time the robbery took place is bound, in my view on the facts of this case, if accepted by the jury, to jeopardise the credibility of Miss Anderson."  

         With respect to the Assistant Recorder, we do not agree with him that the first of his reasons provided ground for ordering that cross‑examination might take place.  As already pointed out, there was no issue between the Crown and Miss Anderson that Miss Anderson followed Miss Jamal out of the lavatories after the robbery.  That is a point upon which Miss Jamal and Miss Anderson were agreed.  Although therefore the appellant's evidence supported the prosecution case, it did so in relation to a matter which was not in issue and it was not therefore material.  If this consideration had stood alone, we would feel obliged to hold that the appellant's evidence did not damage in any way the defence of Miss Anderson.  
         We are, however, of opinion that the Assistant Recorder was entirely correct in the second and third reasons which he gave.  If, as the appellant asserted, she was not in the lavatory at all at the time when the robbery occurred, and the jury accepted this evidence, then that was very damaging indeed to the credibility of Miss Anderson and made it much less likely that Miss Anderson simply stood by while Lisa committed the robbery.  The Assistant Recorder was, in our judgment, quite right in ruling that Miss Anderson should be free to cross‑examine the appellant on her convictions.  
         In criticising the Assistant Recorder's ruling, Mr House for the appellant pins his colours to the fifth proposition advanced in the judgment of the court in Varley.  He draws attention in particular to the closing words of that proposition:
  
		".... then it must have been the other who did." 
  
He submits that this is not a case where it was either A or B who committed the offence, and that therefore if it was not A it must have been B.  It is not, Mr House submits, enough that it may have been B, or may have inclined the jury to accept that it was B.  He points out that the word used is 'must' and that that is a condition which on the facts here was not satisfied.  
         The use of the word 'must' in this context caused the Assistant Recorder some concern.  Plainly he felt that the word 'may' would have been more appropriate.  We agree with him and to the extent that proposition (5) is put in mandatory terms, we consider that it went too far.  The Assistant Recorder did, however, take the view that he should pay attention also to proposition (6) and he concluded, rightly in our judgment, that that test was satisfied on the facts of this case.  
         We feel bound to remind ourselves that the judgment of the court in Varley, helpful though it is, is not itself a statutory provision.  The words used in the statute are simple and readily intelligible.  There is, in our judgment, a danger in overcomplicating what we feel sure was intended to be an easily applicable test.  
         In conclusion therefore we are satisfied that the Assistant Recorder was quite right in ruling that Miss Anderson should be free to cross‑examine the appellant on her convictions.  
         Mr House does, however, raise a subsidiary argument.  He submits that if Miss Anderson was indeed to be entitled to cross‑ examine the appellant on her convictions, then the trial judge should in the exercise of his discretion have ordered separate trials of the appellant and Miss Anderson.  He draws attention to the dilemma to which Lord Reid drew attention in his judgment in Murdoch at pages 582-583, and he submits that that dilemma is now the more acute since a defendant who chooses not to give evidence may find that that failure becomes the subject of adverse comment.  The danger, Mr House submits, was particularly acute in this case since the appellant, although young, did have a very recent conviction for robbery.  Mr House submits that there was an inevitable danger that the jury, despite any warning they were given, would regard this conviction as showing a propensity to commit offences of this kind rather than as simply a matter going to her credibility.  He places reliance on the observation quoted by Lord Morris of Borth‑y‑Gest in Murdoch at page 585 to the effect that if there is any risk of the jury being misled into thinking that the evidence goes not to credibility but to the probability of having committed the offence, then the evidence ought not to be admitted.  
         In our judgment the Assistant Recorder would have been quite wrong to order separate trials in this case.  It is obvious that had the appellant and Miss Anderson been tried separately, each might quite unjustly have escaped conviction by attributing the responsibility for the robbery to the other.  There is nothing to suggest that such a result would have advanced the ends of justice.  The trial of both defendants together, with each cross‑examining the other on the other's previous convictions, may indeed have increased the chances of both defendants being convicted as compared with their chances of conviction had they been tried separately.  To that extent it must be accepted that a joint trial was prejudicial to them.  It is, however, to be remembered that the whole trial process is prejudicial to a defendant in the sense that it is intended to convict that defendant.  What the court must be concerned to ensure is that there is no unfair prejudice to a defendant.  
         In our judgment there was no trace of unfair prejudice to this appellant in the course adopted here.  This was pre‑eminently a discretionary decision for the Assistant Recorder.  He had to weigh the risk of unfair prejudice to the defendants against the disadvantages of repeated trials with repeated appearances to testify by the victim and the obvious risk of an unjust result.  The Assistant Recorder was plainly alive to the risk that the jury would stray from considering the credibility of the appellant into considering her propensity to commit offences of this kind and gave a direction on this matter which is not only clear but extremely emphatic.  We have no reason whatever to suppose that the jury would not have paid full attention to that direction.  Accordingly, in our judgment the appeal fails on this second ground also, with the result that the whole appeal must be dismissed.

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