Case No: 200703545/D1 
Neutral Citation Number: [2008] EWCA Crim 1243
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Friday, 9th May 2008
 
B e f o r e:

LORD JUSTICE TOULSON

MR JUSTICE ROYCE 
 
HIS HONOUR JUDGE MICHAEL BAKER QC 
(Sitting as a Judge of the CACD)
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R E G I N A 

v 

CARLO ROSATO 
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Computer Aided Transcript of the Stenograph Notes of  
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Mr G Fishwick appeared on behalf of the Appellant
Miss J Hayne appeared on behalf of the Crown
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J U D G M E N T 

1.	LORD JUSTICE TOULSON:  On 8th May 2007 at the Central Criminal Court the applicant was convicted of arson.  On 25th June 2007 he was sentenced to 3 years' imprisonment less 34 days spent in custody.  His applications for leave to appeal against conviction and an extension of time for doing so were referred to the Full Court by the single judge who indicated that he would have been minded to grant leave, if there had been a satisfactory explanation for the lateness of the application, but he did not have any satisfactory explanation on that point.  The court has now been given an explanation, which shows that the delay was in no way the fault of the applicant.  It was not a lengthy period and in the circumstances, we indicated at outset of the hearing we would grant leave to appeal.
2.	The appellant was jointly charged with a man called David Groves, who was also convicted of arson and received the same sentence.
3.	The grounds originally put forward in the notice of appeal relate to the admission of evidence of the appellant's past convictions on an application by his co‑defendant and to the way in which the judge dealt with the appellant's past convictions in his summing‑up.  In addition, the appellant now seeks leave to adduce fresh evidence in the form of a statement from his co‑defendant.
4.	The victim of the arson was a company called Zenith Windows, who have premises in St Albans.  On 30th June 2006 a fire was deliberately started at the company's offices in the early hours of the morning.  Access to the premises had been gained by smashing a window in a training room.
5.	The two co‑defendants had until recently been employees of the company and the appellant still was.  The appellant had been a manager but he had been demoted.  His co‑defendant, Groves, had been dismissed two days before the offence.  On the night of 29th/30th June the two men went out drinking together.  CCTV footage showed them walking up a ramp to the company's premises at about 2.15 am, and leaving together at 2.31 am.  At 2.45 am Groves walked back up the ramp alone and two minutes later he called the fire brigade to report the fire.  He was later arrested at the scene.  The appellant was arrested the next day, after reporting for work.  
6.	Both men were found to have glass fragments that matched the scene on their clothing.  The prosecution case, which the jury must have accepted, was that both men were parties to a joint enterprise.  
7.	The defendants ran cut‑throat defences.  The appellant told a number of lies about what had happened.  When first questioned on the morning after the fire, he made a statement in which he said that he had met Groves, that he had 10 pints of Stella, that they were both very drunk but that he had then left Groves at a taxi rank and walked away.  Later, when interviewed by the police, he accepted that he had been to Zenith and suggested that Groves had been responsible for the breaking the training room door.  He sought to explain the glass fragments on his clothing by saying that he had hugged Groves as they parted company.  The fire had been set on the second floor of the main building.  Between the main building and the training area was a glass walk way with glass walls and an asphalt roof.  The main entrance to the premises was accessed by that walkway.  The prosecution's case was that the appellant had walked up a ramp as shown on the CCTV and had then climbed over the top of the covered walkway and smashed his way into the training area.  This was supported by glass fragments found on him.  It was the prosecution's case that he had then opened the front door for Groves and that Groves, but not the appellant, knew the security code for opening the main section of the building.   
8.	The prosecution's case was that after the appellant had left Groves in that way, the two men must inferentially have been both involved in setting the fire on the second floor.
9.	The appellant said in his evidence that on the evening in question he had met Groves and after drinking at various places, they had ended up at an establishment called the Ice Bar.  They carried on drinking and were both quite drunk when they left it shortly after 2.00 am.  As they left, Groves said: "Let's go to Zenith and trash it". The appellant did not respond, but he assumed that Groves had in mind merely to throw over a few tables and make a bit of a mess.  He had no idea what was going to happen but he followed.  Groves tried to kick the door in and the appellant walked away and stood by a wall.  Groves then kicked at railings on the kitchen window and asked the appellant for help.  The appellant smashed the window of the training room with a stone.  He admitted that he then went into the training room and along the glass corridor and he opened the door to let Groves in.  Groves then went into the main section of the building, through the coded door, while the appellant went outside and rolled a cannabis joint.  It was his evidence that he remained outside the building from that time on.  He did not go up to the room where the fire was set, nor did he have any awareness of what was happening.  He and Groves then left and walked down the ramp together.  He was ignorant that any fire had been started.  The lies that he subsequently told were told out of panic for fear that he would be thought to have been party to the arson.
10.	Groves' evidence was that on the night of the fire he went to Zenith with the appellant and sat on the steps.  He was unaware that the appellant had entered premises until he heard a smash.  The next thing he saw was the appellant exiting through the fire exit.  He had no idea what the appellant had done, nor did he want to know.  He left the appellant and went back to the taxi rank.  While waiting for a taxi he looked up at the window of Zenith and saw orange flames.  He then went back to the premises and called the fire brigade.  At the point he broke the windows of the premises and went inside because of concern that there might have been somebody inside.
11.	It is convenient to deal at this stage with the application to adduce fresh evidence.  This takes the form of a statement by Groves as follows: 
"I David Groves wish to make it clear that Carlo Rosato was with me when this unfortunate incident happened on 30th June 2006 but did not participate in the lighting of any fire.  I was very intoxicated and I understand now that Carlo Rosato can be sentenced for a crime that he did not commit.  
I wish again to make it clear here that he had no involvement in starting of the fire in the night in question.  
Again Mr Rosato did not know that I was going to start the fire as I was not aware that I was going to do it myself.  
I am obviously willing to state the contents at  court should it be required.  However I would like it known that if possible I would prefer to do it via video link." 
We do not consider that the interests of justice should lead us to admit this evidence under section 23 of the Criminal Appeal Act 1968.  In particular we do not consider that the evidence could afford any ground for allowing the appeal, nor do we consider Groves to be a witness whose evidence in relation to what happened at Zenith premises is seriously capable of belief.  We have not considered it necessary to admit his evidence de bene esse and hear cross‑examination before reaching that conclusion.
12.	Groves himself also told a series of lies.  Groves was clearly disbelieved by the jury in the account that he finally put before them.  In no sense, therefore, was the appellant's conviction to be regarded as having been founded on Groves' denial of responsibility at the trial.  It is plain that the jury disbelieved both men.
13.	We cannot see any basis for concluding that Groves' change of account now affords any ground for viewing this appellant's conviction as unsafe.  It is to be noted that no reason is given by the witness for now saying as he does.  We also note the limitations of what Groves now says.  He states that the appellant was with him when what he describes as "the unfortunate incident" happened.  There is no suggestion in his statement that he had separated from the appellant and gone up on his own to the second floor, where the fire was set.  He says that he himself was very intoxicated. That we can certainly believe.
14.	One has to have a degree of realism in looking at the evidence.  The two men went together into the premises.  They plainly went there in order to cause damage.  Both were very drunk.  There was therefore a criminal joint enterprise to damage the premises.  Because of their intoxicated state, it is very doubtful that either would have had a particularly clear view of what the other might do.  But if there was some realistic basis for supposing that what Groves did went beyond their joint enterprise, and that the appellant had distanced himself from it, one would have expected evidence to that effect and that evidence is strikingly lacking.  As we have indicated, there is no evidence from this witness that he separated himself from the appellant.  There is no evidence that the appellant sought to dissuade him from what he did or raise any protest, and the CCTV evidence showed them walking off together afterwards.  The jury had ample basis for concluding that this was a joint enterprise crime and the latest statement by Groves affords no ground for supposing that the jury's conviction was wrong.
15.	We turn to the grounds on which the single judge indicated that he would have given leave subject to the point  about the timeliness of the application.  These arose from the judge's admission of evidence of the appellant's past convictions. Before coming to the question whether the judge was right to have admitted that evidence and whether he dealt with the matter satisfactorily in his summing‑up, it is necessary to refer shortly to one further argument advanced by Mr Fishwick, connected with the fresh evidence which he sought to introduce from Groves.
16.	The argument advanced was that if Groves had maintained the position at the Crown Court which he now maintains, the two men would not have been running cut‑throat defences; therefore there would have been no occasion to introduce evidence of the appellant's past convictions; therefore the conviction is unsafe.  The argument deserves full marks for ingenuity, but in our view no marks for merit.  What might have happened if Groves had made maintained a different position at trial is simply irrelevant. Groves maintained the story he did because he was contesting his guilt. Of course if he had admitted his guilt there would not have been a trial of the two defendants before the jury.  But that does not throw any light on the question of whether the judge was right to admit the evidence of past convictions in the circumstances that he did or whether the conviction which resulted in the end of the trial was a safe one.
17.	We turn to the question whether the judge was right to admit that evidence.  The relevant section is section 101(e) of the Criminal Justice Act 2003, which provides that in criminal proceedings evidence of the defendant's bad character is admissible if, but only if it has substantial probative value in relation to an important matter in issue between the defendant and a co‑defendant.  Further guidance in relation to that gateway is provided by section 104, which states: 
"(1) Evidence which is relevant to the question whether the defendant has a propensity to be untruthful is admissible on that basis under section 101(1)(e) only if the nature or conduct of his defence is such as to undermine the co‑defendant’s defence. 
(2) Only evidence— 
(a) which is to be (or has been) adduced by the co‑defendant, or. 
(b) which a witness is to be invited to give (or has given) in cross‑examination by the co‑defendant. 
is admissible under section 101(1)(e)."
The evidence which the judge allowed to be put to the appellant in cross‑examination was evidence of a number of  previous convictions for offences of dishonesty.  
18.	The appellant was born in May 1983.  The convictions spanned a period from 1996, when he was aged 12, through to 2002, when he was aged 19.  The stalest involved burglary.  The other offences were offences of theft, the most recent being thefts of mail in transit.
19.	The admissibility of previous convictions at the instance of a co‑defendant was considered by this court in the case of R v Lawson [2006] EWCA Crim 2572. Prior to that case there was a respectable argument that evidence could only be admitted under section 101(1)(e) if the evidence demonstrated a propensity to be untruthful, reading together section 101(e) with section 104.  But such a narrow reading would have been well capable of unfairness as between co‑defendants and it was rejected by the court.
20.	At paragraph 34, Hughes LJ, giving the judgment of the court, said: 
"A defendant who is defending himself against the evidence of a person whose history of criminal behaviour or other misconduct is such as to be capable of showing him to be unscrupulous and/or otherwise unreliable should be enabled to present that history before the jury for its evaluation of the evidence of the witness. Such suggested unreliability may be capable of being shown by conduct which does not involve an offence of untruthfulness; it may be capable of being shown by widely differing conduct, ranging from large scale drug ‑ or people ‑ trafficking via housebreaking to criminal violence. Whether in a particular case it is in fact capable of having substantive probative value in relation to the witness' reliability is for the trial Judge to determine on all the facts of the case." 
21.	Miss Hayne, for the prosecution, submits that the reference to unreliability in this context must be to unreliability as a witness, or, putting another way, a liability to lie.  Mr Fishwick did not argue otherwise and we consider that she is right.  When looking at the matter as between co‑defendants, the court is not narrowly constrained to consider simply whether the defendant has a past history of offences which in themselves involve lies or deceit.  Were that the correct approach, then the appellant would have a good case for saying that his past convictions were inadmissible because they did not involve lies or deceit and he pleaded guilty to them.  But the approach adopted by the court in Lawson is based on the recognition that there may be other forms of misconduct which could reasonably cause a fair‑minded jury to suppose that somebody guilty of that misconduct would not scruple to tell a lie if necessary for his own protection.  It is not difficult to imagine examples.  The court emphasised that there may be a wide range of conduct which could fairly influence the mind of the jury in assessing the credibility of a defendant.  A jury might well conclude, for example, that somebody with a history of armed robbery would not scruple to lie in order to protect himself if occasion required, and that it would be grossly unfair to a defendant, meeting evidence against him from a co‑defendant with such a record, not to be able to put those facts before the jury for the purposes of evaluating the weight to be attached to the co‑defendant's evidence.
22.	In this case there is no dispute that there was an important matter in issue between the appellant and Groves, because the effect of the appellant's evidence was to put the responsibility for the arson onto the shoulders of Groves.  Groves therefore had an interest in being able to deploy before the jury any material properly relevant in considering whether they should regard this appellant as a credible witness.
23.	It is submitted by Mr Fishwick that the evidence of the appellant's past convictions could not be said to have substantial probative value in that regard.  In particular, he relies upon the period of time that had elapsed between the convictions, especially the older ones, and the date of the offence, and upon the appellant's age at the date of the earlier offences.  On the other hand, the past offences showed a pattern of behaviour and, in our judgment, the judge was right to conclude that a jury could fairly regard that pattern of past dishonesty on the part of this appellant as something which they should bear in mind in fairness to Groves when considering whether they should rely on the appellant's evidence about Groves' conduct.
24.	Mr Fishwick also made a complaint about the lateness of  the notification of the proposed cross‑examination but in our judgment that did not make the decision to admit the evidence wrong.  It was argued that because the notification came late the court had no details of the appellant's previous convictions.  The other side of that argument is that it had only the information which the appellant himself furnished to the court, including the fact that he pleaded guilty to all the offences.  In our judgment, that cannot be said to have made a decision to admit the evidence wrong.
25.	We turn, finally, to the criticisms of the summing‑up.  The judge did not have the benefit of having been referred to the decision in Lawson.  He began his summing‑up on this point by saying: 
"Then, members of the jury, you heard about, in respect of each of them, their previous convictions.  About this you have to be extremely careful.  Because somebody has committed an offence in the past it does not in any way mean they have committed this offence, or, indeed, any offence at all.  You only hear about this, or you hear about it under modern law, because the Criminal Justice Act 2003 Section 104, which says 'Evidence which is relevant to the question of whether the defendant has a propensity to be untruthful is admissible.' And, on that basis, only if the nature or conduct of his defence is such as to undermine the co‑defendant's defence."  
He continued: 
"The point that you have to be very careful about with these conviction, indeed, is, before you take them into account, any of the convictions against either of them, you must be sure that they show that the defendant has a propensity to be untruthful.  I draw a distinction for your consideration between being dishonest and being untruthful; there is a difference, you understand."  
That was not a distinction which the judge went on to elaborate.  He then went through the previous convictions and concluded as follows: 
"Be very slow to take them into account against each of the defendants, and only if you are convinced they show a propensity to be untruthful, because you do not say:  oh well, they have convictions in the past and therefore they have committed this completely different offence now, namely arson, from what they were then convicted of."
26.	The summing‑up on this issue was much longer than it needed to have been. The point could have been made quite shortly:  that the evidence was before the jury simply in order that, when considering in the case of each defendant what was said against him by his co‑defendant, they should bear in mind what they knew about the co‑defendant's past history in assessing whether his evidence formed a reliable basis for convicting the defendant whose case they were considering.  The judge put it too narrowly when he said that they could only take into account past misconduct if those offences demonstrated a propensity to be untruthful, if by that is meant an established practice of being untruthful.
27.	It was submitted by Mr Fishwick that although in one sense the direction might be thought to be over‑favourable to the defendants, it was in truth the opposite because it carried with it the implication that the jury could conclude that the past offences demonstrated a propensity to be untruthful and, in the appellant's case, this could not be so.  That submission involves drawing a distinction between conduct which shows that somebody has a demonstrated practice of not telling the truth and someone whose conduct may lead a jury to believe that they are liable not to tell the truth. Linguistically and philosophically the distinction can be understood in abstract terms, but in the practical world of a jury, it is likely to be a distinction without a difference, and in our judgment it was so on the facts of this case.  The distinction between, on he one hand, concluding from somebody's past criminal behaviour that they would not scruple to lie if necessary in order to defend themselves and, on the other hand, concluding that their past conduct shows a propensity to lie in sense of a practice of lying, is not something which would make sense to a jury as a ground of distinction when judging whether or not to accept a co‑defendant's evidence as reliable for the purposes of convicting the defendant whose case is under consideration.
28.	There is an additional artificiality in the argument in this case, in that this appellant had demonstrated his readiness to tell lies, if he thought it necessary for his own advantage by the series of lies he had told in relation to this offence.  Particularly bearing in mind the advice given by the judge to the jury that they should be very cautious about the evidence of past convictions and concentrate much more on the evidence which related directly to the offence, we are in no doubt that the lies told by the appellant himself relating directly to the matter in question would have been rightly regarded by them as much more important than his past history of thefts.
29.	In conclusion, we are not persuaded either that the judge was wrong to admit the evidence or that his direction would have caused the jury to approach the evidence in a way which was unfair.  Nor do we have any doubt about the safety of the appellant's conviction.  Accordingly this appeal is dismissed.