Neutral Citation Number: [2008] EWCA Crim 2498
No. 2008/00950/C3

IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Wednesday 8 October 2008

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  OWEN

and

MR  JUSTICE  CHRISTOPHER  CLARKE

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R E G I N A

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LEVAN  URUSHADZE
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Mr T Mackinnon appeared on behalf of the Appellant

Mr G Renouf appeared on behalf of the Crown
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J U D G M E N T

THE LORD CHIEF JUSTICE:  I will ask Mr Justice Christopher Clarke to give the judgment of the court.

MR JUSTICE CHRISTOPHER CLARKE:
1.  On 15 January 2008, in the Crown Court at Inner London, the appellant was convicted of robbery following a retrial which lasted for five days.  He was sentenced to five years' imprisonment and a recommendation was made that he should be deported.  He now appeals against conviction by leave of the single judge.

2.  The grounds of his appeal are that the learned judge was wrong to admit in evidence proof of six previous convictions for theft from a shop (shop-lifting) to which he had pleaded guilty.

3.  The facts which led to his conviction are the following.  On 29 June 2007 a white man of stocky build and of Eastern European appearance (Male 1) robbed Mr Raza by hitting him several times on the head with a stun gun, causing his head to bleed, and taking his brown briefcase.  Mr Raza chased after the man in order to retrieve his briefcase. 

4.  There was a further altercation between Male 1 and Mr Raza.  A neighbour, Mr Sabir, intervened to assist Mr Raza.   The appellant was seen to take the briefcase from Male 1 and they both left the scene.  Male 1 has never been apprehended by the police.

5.  The prosecution case was that the appellant was engaged in a joint enterprise with Male 1 to rob Mr Raza.  The appellant was walking home in Grangewood Street, London E6, when Male 1 assaulted Mr Raza with a stun gun and took his briefcase.  The appellant followed Male 1 and Mr Raza to Friars Road, where Mr Raza tried to retrieve his briefcase and the neighbour, Mr Sabir, intervened to assist him.  When the appellant realised that Male 1 was having difficulties carrying out the robbery, he joined in to assist Male 1 and took the briefcase from him. 

6.  The defence case was that the appellant came to be on the scene by accident.  He did not see the initial incident between Male 1 and Mr Raza.  He was not part of a joint enterprise to rob Mr Raza.  He recognised Male 1 as someone from Georgia whom he knew from an English language school in London.  What he saw was Male 1 being attacked by a group of Asian males and he intervened to assist him.  Male 1 asked him to take the briefcase away and he did so thinking that it belonged to Male 1.

7.  Mr Raza gave evidence about being approached by Male 1, being assaulted with the stun gun and having his brown briefcase stolen from him.  Male 1 then made off.  Mr Raza said that he went after Male 1, caught up with him in Friars Road, shouted at Male 1 to give his bag back and tried to grab it back.  He described himself as being hit over the head several more times with an object by Male 1.  He noticed another man (who was said to be the appellant) watching as he went after Male 1.  The appellant, he said, had been watching everything and was helping Male 1.  Mr Raza's neighbour, Mr Sabir, came to his assistance, as did a number of predominantly Asian people, although nobody other than Mr Sabir appears to have intervened physically.  Mr Sabir wielded a blue bicycle lock cable.  At some stage Mr Sabir dropped the cable and it was picked up by the appellant, who by that stage had intervened.  At a later stage Mr Raza gave up his briefcase because he thought that the situation was becoming too dangerous.

8.  Mr Sabir gave evidence of looking out of his front window when he saw Male 1 run up to Mr Raza, hit him with a gun and take his bag from him.  Mr Sabir went outside to assist.  By the time he reached the front door Mr Raza was chasing after Male 1.  At this point he noticed another man (he said the appellant) leaning on a bicycle and watching them.  There was some doubt as to whether the appellant, who had come from West London, was in fact the man with the bicycle.  Mr Sabir had a blue bicycle cable which he used to hit Male 1 on the back several times, but he lost hold of it.  He said that he saw the appellant attempt a "fly kick" but was not certain if it connected with anybody.  The appellant had his hand inside his pocket as if he had a knife there and he said words to the effect, "I will kill you".  At this point he told Mr Raza that he should back off because he was worried that the appellant might have a knife.  He subsequently identified the appellant to the police in a public house close to the scene and on a later date at an identification parade.

9.  There was also evidence from three independent witnesses, one of them, Mr Dallel, who was a taxi driver in a taxi in which there were two sisters as passengers.  Mr Dallel said that he saw the start of the incident when Male 1 took the briefcase from Mr Raza.  He drove past, but then stopped.  He said that he had seen 15-20 Asian people come out onto the street to see what was happening, although he only saw one man (Mr Sabir) physically do anything to help.  He followed the appellant, who was carrying the bag, into Dickens Road into which the taxi could not go.  When the appellant emerged from Dickens Road he was no longer carrying the bag.  Nor was he wearing his jacket, but was carrying it, and he had disposed of a rucksack that he had had.

10.  The taxi driver and the two passengers gave evidence that they saw the appellant briefly go into a takeaway shop and they then followed him to the Central public house which is on the Barking Road.

11.  A police constable gave evidence that he attended at the public house and waited by the exit.  The appellant came out of the toilets and made for the exit, avoiding eye contact with the police.

12.  The appellant gave evidence that he came from Georgia and that he had a number of friends in London from Eastern Europe.  He described how on the afternoon of 29 June he was going to visit some friends in the Barking Road.  As he made his way to Upton Park, two people stopped to ask him for directions.  He heard a shout which caused him to look round but he saw nothing in particular.  He then decided to see what was going on and made his way to Friars Road, where he saw a fight taking place between Male 1 and four or five Asians.  He said that as he got closer he recognised Male 1 as somebody he knew as "Anzor" who was from Georgia and whom he had met a few times at an English language college in Oxford Street.  He believed that Male 1 was being attacked.  He intervened because he was concerned for his safety.  He was being seriously assaulted with chains, cables and pieces of wood.  He said at some stage that Male 1 fell to the ground and he (the appellant) thought that he would be killed.  He said that he believed that the briefcase that Male 1 was holding was his.  He had not seen it being taken from Mr Raza by Male 1.  Male 1 told him to take the bag.  He took it because he believed that the men would then stop hurting his friend.  As he took the bag he thought that the men were going to come after him, so he fled the scene.  Having done so, he sat at the bus stop for a while because he thought that his friend would return to collect the briefcase.  He then became worried when he saw some Asian people coming towards the bus stop, so he left and disposed of the briefcase in Dickens Road.  At this time, he said, that he was more concerned for his own safety than losing his friend's briefcase.  He went to the Central public house to use the toilet.  He said that he did not avoid eye contact with the police.  He was pleased to see them in view of what had happened and did not look at them only because his attention was focused on a person who was pointing him out.  He did not mention to the police at this point what had happened because he was nervous and shocked.  He had had an empty rucksack with him in order that he could put his jacket in it if he became hot.  He said that he took off his jacket in Dickens Road for that reason and not in order to change his appearance.  He said that he had seen nothing of the original incident between Male 1 and Mr Raza.

13.  As is apparent, the critical issue for the jury to decide was whether they were sure that the appellant was part of a joint enterprise to rob the victim -- his part being to take away the bag when Male 1 got into difficulties -- or whether it was or might be the case that the appellant had not witnessed the first incident when Male 1 assaulted Mr Raza but came upon a group of people attacking and seriously assaulting a man he recognised whose bag he took from him because the man (an acquaintance and a fellow Georgian) told him to do so and because that would, he thought, stop the assault upon him.

14.  To the resolution of that dispute two factual issues were key: first, whether, contrary to his evidence, the appellant had in fact witnessed the original attack on Mr Raza in Grangewood Street; and secondly, how he had interpreted the second incident when Mr Sabir and others came to the victim's aid.

15.  The Crown had not sought to put the appellant's previous convictions in evidence at the first trial in November 2007.  At the end of that trial the prosecution indicated that there would be an application to admit such convictions at the retrial.  We were told by Mr Renouf for the Crown that instructions were given for a notice to be served.  However, no such notice was served prior to or at the retrial in January 2008, even though the retrial was originally listed for 17 September 2007 and adjourned on that day because the victim had not been warned and was not available.

16.  This was inconsistent with the mandatory provisions of Part 35 of the Criminal Procedure Rules which require the service of such a notice within fourteen days of the committal of the defendant or other similar event.  In the result, therefore, an application was made orally on 10 January 2008 very close to the end of the prosecution case.  That such an application was to be made had been indicated by counsel for the prosecution at the beginning of the trial the previous day before any witnesses were called.  It appears not to have been made until that day because counsel for the Crown did not have until the second day information as to which of the shop-lifting offences the appellant had pleaded guilty.  The intention was to adduce in evidence only those offences to which the appellant had pleaded guilty (although it is not apparent to us that it was only those offences that were potentially relevant, if any were, he having been convicted of some offences of shop-lifting to which he did not plead guilty).

17.  The learned judge decided that she would permit the prosecution to make a late application.  She did so because she said that the question had been flagged up; the defendant had received oral notice and the antecedent history was always known to the defence.  She took the view that there was no prejudice to the defendant by the late application.

18.  Mr Mackinnon for the defence had submitted that the application should be refused because it was late and because, if it had been made earlier and had been granted, he would have applied to put in evidence of the bad character of Mr Sabir (who gave evidence on the first day of the trial and had then unexpectedly gone abroad).  Mr Sabir had a conviction for possession of an offensive weapon and cautions for common assault and assault occasioning actual bodily harm.  The learned judge regarded that as a separate issue.  She thought that the defence could have made that application before Mr Sabir gave evidence.

19.  The failure of the prosecution to comply with the rules, even before the start of the adjourned retrial was, in our view, unacceptable.  Whether or not to entertain a late application, and whether to refuse it on the grounds of lateness or the prejudice asserted, was a matter for the discretion of the learned judge.  For reasons which will soon become apparent we do not think it necessary to address the question as to whether or not she was right in exercising that discretion in the prosecution's favour.

20.  The gateway upon which the prosecution relied in order to introduce the evidence of the shop-lifting offences was section 101(1)(d) of the Criminal Justice Act 2003, that is to say that the convictions were relevant to an important matter in issue between the defendant and the prosecution, namely whether the defendant had a propensity to commit offences of the kind with which he was charged.  By section 103(2) a defendant's propensity to commit offences of the kind with which he is charged may be established by evidence that he has been convicted of an offence of the same category as the one with which he is charged.  For these purposes theft is in the same category as robbery.

21.  The learned judge recorded the prosecution's submission that the convictions were relevant because they were capable of showing a propensity on the part of the defendant "to know and perceive that a theft was taking place -- a theft with violence, hence a robbery; that there was the ingredient of the dishonest intention permanently to remove Mr Raza's belongings and that the defendant was in a position to appreciate that having seen the incident unfold".  The learned judge decided that, theft being in the same category as robbery, the convictions for theft were relevant to show a propensity to robbery.  In her ruling she said this:

		"The prosecution say that the jury should have knowledge of these offences because it will assist them in determining whether or not the defendant has such a propensity to commit certainly the theft element of this offence, on the basis that he is no stranger to theft by stealing, and that his explanation that this was an innocent encounter, he was simply assisting somebody he knew, the jury need to consider against the background of his knowledge of what theft is and his participation in theft, and his observation of somebody (certainly the first incident which has been described by other witnesses) where the assailant was Male 1 on Mr Raza."

22.  When she came to sum up, the judge told the jury that the appellant's previous convictions did not tell them whether he had committed the offence with which he was charged and that they should be careful not to be unfairly prejudiced against the appellant by what they had heard about his convictions.  She said that they might consider it relevant, in ascertaining what his intention was when he went over to Male 1, that he had six previous convictions for that because, as the prosecution said, that showed that he had a tendency to take property that did not belong to him, knew what theft was and was prepared to commit it.  She pointed out that theft and robbery shared the ingredient of taking another's property with the intention of permanently depriving him of it.  She left it open to the jury to decide whether or not they should accept the appellant's explanation of a purely innocent encounter and whether his previous convictions assisted them in determining whether he was acting innocently, having misunderstood the situation.

23.  There can be no doubt that the appellant knew and understood what theft was.  So do most people.  Such knowledge and understanding by itself cannot be a ground for admitting evidence of convictions of theft.  We also have some difficulty in the concept apparently put forward by the prosecution of a propensity to know or perceive that  a violent theft is taking place and in seeing how, on the facts of this case, the appellant's previous convictions for shop-lifting cast any light on what his perceptions were of what was happening at the time.

24.  In relation to the first incident, when Male 1 attacked Mr Raza, the issue was whether or not the appellant had witnessed the incident at all, not whether he had misunderstood it.  In relation to the second part of the same incident (when the appellant came to the rescue of Male 1) the resolution of what the appellant thought was going on was dependent firstly on whether he had in fact seen the first incident and secondly whether his evidence as to what he said he saw and how he interpreted it was credible.

25.  As the single judge pointed out when giving leave, if the jury accepted that all that the appellant saw was Male 1 being attacked by others, including Mr Sabir, it is difficult to see how the convictions could help them reject his account that he believed that Male 1 was the victim.

26.  Insofar as the learned judge's ruling was based on the convictions evidencing a propensity to know or understand theft, or as casting light on the appellant's perception, it was in our view ill-founded.  However, the major part of the learned judge's reasoning appears to us to have been that the six shop-lifting offences showed a propensity on the part of the appellant to commit the theft element of robbery.  

27.  The learned judge's attention was not drawn to the decision of this court in R v Tully and Wood [2006] EWCA Crim 2270.  In that case the appellants were charged with the robbery of a taxi driver.  Both appellants had convictions for, firstly, robbery; secondly, certain offences committed together; and thirdly, for other offences of dishonesty.  The prosecution sought to put in evidence the robbery and joint enterprise convictions.  The trial judge referred counsel to section 103(2) of the 2003 Act and appeared to encourage an application to put in all the offences of dishonesty.  That application was later made and granted on the basis that the theft convictions relied on were evidence of propensity to acquire other people's property by unlawful means, by robbery if necessary.  On appeal the prosecution did not seek to uphold the judge's ruling.  Prosecution counsel candidly expressed the wish that he had not taken up the judge's invitation in the first place.  This court regarded that approach as plainly right.  The court held that the judge was wrong in effect to hold that a propensity to obtain other people's property made it more likely that the appellants would have committed the offence of robbery.  In giving the judgment of the court Smith LJ observed as follows:

		"26.  In our view the judge was wrong to hold, in effect, that a propensity to obtain other people's property by one means or another made it more likely that these appellants would have committed this offence.  In fact he never said that in terms, but that was the implied basis of his decision.  The whole thrust of the guidance in Hanson is that the court should only admit convictions which have some probative force by reason of their similarity to the offence charged.  To allow the Crown to prove a propensity to obtain other people's property by some means or another is, in our view, to allow them to cast far too wide a net. Such evidence has limited probative value and has a potentially prejudicial and harmful effect.  In Hanson the court said that the judge should look for similarities between what the defendant had done in the past and what he was now charged with.  Those similarities did not have to be striking in the way that similar fact evidence has to be, but there must be a degree of similarity.  The fact that the convictions are for offences of the same description or category does not automatically mean that they should be admitted.  It is not possible to define the degree of similarity which must be shown.  That must be for the judge's discretion and judgment to be exercised on the facts and circumstances of the individual case.  But the judge must strike a balance and in doing so must remember the words of section 101(3) to which we have already referred.

		27.  Here the judge appears to have understood section 103(2) to give him complete freedom to admit all convictions of the same category as the offence of robbery regardless of their probative effect.  Robbery being a theft offence, all convictions for other theft offences could go in to prove a general propensity to acquire other people's property by one means or another.  The judge did not consider whether evidence of those convictions would make it more likely that each appellant had committed this offence.  It seems to us that, had he done so, he would have concluded that such evidence had little probative force.  There are a great many people who have a propensity to acquire other people's property by one means or another.  On the other hand, previous convictions for robbery would be much more probative and a conviction for robbing somebody using a knife to reinforce a threat of violence would increase the probative effect.  In short, the more similar the circumstances of the past offences to the present allegation, the greater the probative force."

28.  Those words are as it seems to us apposite here.   We are far from saying that proof of convictions for theft can never be probative in relation to allegations of robbery.  However, on the facts of this case it does not seem to us that the appellant's convictions for shop-lifting revealed sufficient similarity between what he had done in the past and what he was said to have done on this occasion to indicate a propensity to commit a robbery of the type in question.  If and insofar as the convictions had any probative value, it seems to us that on the facts of this case its effect was very greatly outweighed by the prejudice caused by admitting them such that the adverse effect on the fairness of the proceedings was that the court ought not to have admitted them.

29.  Accordingly, for those reasons we propose to allow this appeal.

30.  We have been asked to order a retrial.  We do not propose to do so.  If there were to be a retrial, it would be the second retrial.  There was the original trial.  There was then due to be a retrial in September, which did not in fact take place.  There was then a retrial which did take place in January.  In the light of the fact that the appellant has already served a substantial period of time in custody, we do not think it appropriate on this occasion and in these circumstances that there should be a retrial of these offences. 

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