Neutral Citation Number: [2008] EWCA Crim 2563
Case No: 2007/03380/D1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19/11/2008
Before :

LORD JUSTICE MAURICE KAY
MR JUSTICE KING
and
MR JUSTICE SWEENEY
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Between :

	REGINA		
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	ASSANI		

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Mr Michael Turner QC and Ms Judy Khan for the Assani
Mr Peter Joyce QC for the Crown

Hearing date : 31 October 2008
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Judgment
Lord Justice Maurice Kay  : 
1.	Following a trial in the Crown Court at Nottingham, Dale Steven Assani was convicted of murdering Kiers Donaldson.  He was sentenced to life imprisonment and the minimum term to be served before release was fixed at 20 years.  He appeals against conviction by leave of the Full Court and against sentence by leave of the Single Judge.
2.	On 29 June 2006, the appellant, his brother and a group of friends were at a bar in Derby.  They saw Kiers Donaldson there.  Three years earlier there had been an incident between the appellant and Donaldson.  The case for the prosecution was that the appellant still harboured a grudge against Donaldson.  After leaving the bar, the appellant and his group went to a party at the home of Mark Heffernan.  Later, Donaldson unexpectedly arrived at the party with a friend, Carlo Demontis.  A point came when there was an incident involving the appellant and Donaldson.  It is common ground that the appellant wielded a knife in that incident.  Donaldson sustained three knife wounds, one of them fatal.  The case for the prosecution was that the appellant alone had inflicted the wounds.  The case for the appellant was that, whilst he had admittedly wielded a knife, obtained from Heffernan’s kitchen, at Donaldson, he had been acting in self-defence or as a result of provocation and, in any event, he had not inflicted the fatal wound.  He maintained that his involvement in the incident had come to an end when Donaldson had run off and that someone else must have inflicted the fatal wound nearby soon after.  The evidence was complicated by the fact that in due course four knives were found in the course of the investigation.  The expert evidence was that one of them, RSD/5, was consistent with having caused all three of Donaldson’s wounds.
3.	After the incident, the appellant and his associates went to the home of Ian Bricknell.  The prosecution contended that there and over the following days, the appellant and his associates devised a cover-up, one element of which was that Heffernan would accept responsibility for the killing.
4.	At the trial, several of the appellant’s associates stood alongside him in the dock, charged not with murder but with perverting the course of justice arising out of their parts in the cover-up.  Four, including Heffernan, were convicted.  The particulars of Heffernan’s offence were that he had agreed to take responsibility for the murder when he knew or believed that it was the appellant who was responsible and that he gave false information to friends which led to his own arrest for the murder.  Although in his evidence the appellant did not claim that he had seen Heffernan stab Donaldson, his defence was that Heffernan was indeed the murderer.  Accordingly, the trial was coloured by conflict between the cases of the appellant and Heffernan.  The sole ground of appeal is the result of that conflict.  It arises in this way.
5.	Carlo Demontis was the important eye witness of the incident between the appellant and Donaldson.  He had also known Heffernan for ten years.  Counsel for Heffernan cross-examined Demontis about Heffernan’s personality and elicited answers to the effect that he is not the sort of man who would turn round and stab someone, nor was he one to “throw his weight around”.  Also, counsel for Heffernan had adduced his client’s modest previous convictions which do not demonstrate a propensity for violence.  Heffernan was aged 27 at the time of the murder.
6.	Another prosecution witness was Gary Morrell, a work colleague of Heffernan.  He was called to give evidence of an implied admission by Heffernan to the murder.  Morrell was one of Heffernan’s “friends” referred to in the particulars of Heffernan’s offence.  In other words, the prosecution maintained that he had made a false admission to Morrell.  In his witness statement, Morrell had also said of Heffernan:
“Mark is not aggressive, but I have known him to lose it at times.  I remember in about 1993 we were working in Newark when Mark had a verbal argument with a JCB driver.  I remember Mark out of the blue hitting the guy in the face with a shovel.  At the same time I remember thinking it was extreme and out of the blue.”
7.	In 1993, Heffernan was about 14.  It seems that the work in question was in the course of day release from school.  On behalf of the appellant, Mr Turner QC made an application to the trial judge to adduce that passage from Morrell’s witness statement as evidence of Heffernan’s bad character and a propensity for violence.  He was anxious at least to neutralise the evidence of a lack of such a propensity given by Demontis.  The application was made under section 101 of the Criminal Justice Act 2003.  Neither the submissions in support of and against the application nor the ruling of the judge refusing to admit the evidence disclosed sophisticated analysis of the complex statutory provisions.  The ruling included these passages:
“… the jury ought to have a reasonably full picture so that they can come to a sensible decision about propensity and character vis-à-vis Assani and Heffernan.  It seems to me that they may possibly be misled if I was to exclude the evidence of Renee Smith [who gave evidence of a degree of relatively recent domestic volatility on the part of Heffernan.]  
I still propose to exclude the [Morrell] evidence of 14 years of 14 years ago.  It was a single incident and it is not, I note, the application of those representing Assani to put any of Heffernan’s convictions before the jury – quite sensibly because none of those convictions show, over the 14 years since, that he has a propensity to commit serious violence.
So, I shall still exclude the evidence that Morrell mentions in very vague terms.”
8.	We repeat: Heffernan’s convictions came to be adduced at his behest as evidence of a lack of propensity for violence.  The 1993 incident did not result in a conviction or, so far as we are aware, a prosecution.  Mr Turner now submits that the judge was wrong to exclude the evidence about the 1993 incident and that, as a result, the conviction of the appellant is unsafe.
The statutory provisions
9.	The relevant statutory provisions begin with section 101 of the 2003 Act, which is headed “Defendant’s bad character”.  Heffernan was, of course, a defendant in the joint trial.  The material parts of section 101 provide:
“(1)	In criminal proceedings evidence of the bad character is admissible if, but only if –
(a)…
(b)…
(c)…
(d)…
(e)	it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,
(f)	it is evidence to give a false impression given by the defendant, or
(g)	the defendant has made an attack on another person’s character.
(2)	Sections 102 to 106 contain provisions supplementing subsection (1).
(3)	The court must not admit evidence under subsection (1) (d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
(4)	On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence changed.”
10.	Thus, the exclusionary provision in section 101(3) is relevant to gateways (d) and (g) but not the other gateways.
11.	The words “evidence to correct a false impression” in gateway (f) are further explained in section 105, which provides:
“For the purposes of section 101(1)(f) –
(a)	the defendant gives a false impression if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant,
(b)	evidence to correct such an impression is evidence which has probative value in correcting it.”
12.	By section 105(2)(d) and in the circumstances of this case, Heffernan was “responsible” for any false impression about his character flowing from the cross-examination of Morrell on his behalf.  Section 105(6) and (7) then provide:
“(6)	Evidence is admissible under section 101(1)(f) only if it goes no further than is necessary to correct the false impression.
(7)	Only prosecution evidence is admissible under section 101(1)(f).”
13.	So far as gateway (g) is concerned, the words “attack on another person’s character” are supplemented by section 106.  It is common ground that the conduct of Heffernan’s defence included an attack on the appellant’s character.  By section 106(3):
“Only prosecution evidence is admissible under section 101(g).”
Discussion
14.	As we have observed, the application on behalf of the appellant under section 101 was advanced and rejected in rather general terms.  Leave to appeal to this Court was granted specifically by reference to gateways (f) and (g).  It was refused by reference to gateway (e), a matter to which we shall return.
Gateway (f)
15.	It is obvious from the judge’s ruling that he did not admit evidence about the 1993 incident because it was “a single incident” which had taken place “too long ago” and it was expressed in Morrell’s witness statement “in very vague terms”.  Although no express reference was made to the language of section 101(1)(f) as supplemented by section 105(1), it seems plain to us that the judge took the view that (1) the evidence of Demontis had not created “a false impression” of Heffernan who, at the date of trial was aged 27 and without convictions suggestive of a propensity for violence; and (2) if, contrary to that, a false impression had been given, evidence of the 1993 incident would not have “probative value in correcting it” (section 105(1)(b)) in view of Heffernan’s age in 1993, the passage of 13 years without exhibiting a propensity for violence and the vagueness of Morrell’s account.  In our judgment, within its own parameters the conclusion of the judge was correct.  On the issue of a propensity for violence, the lapse of time and the age of the person at the time of the earlier incident are highly relevant considerations.  That is a matter of common sense.  It is also consistent with the policy of the 2003 Act as is apparent from the fact that where the person in question was under 14 at the date of the earlier incident but over 21 at the date of the trial in which the earlier incident is potentially admissible, section 108 contains a specific restriction on admissibility.  It provides:
“(2)	In proceedings for an offence committed or alleged to have been committed by the defendant when aged 21 or over, evidence of his conviction for an offence when under the age of 14 is not admissible unless – 
(a)	both of the offences are triable only on indictment, and
(b)	the court is satisfied that the interests of justice require the evidence to be admissible.
(3)	Subsection (2) applies in addition to section 101 …”
16.	Although section 108 does not apply in the present case (because Heffernan was “about 14” in 1993), it does give something of a steer.  Given Heffernan’s age at the time, the even greater lapse of time (thirteen years), the lack of a conviction in 1993 and – to put it at its lowest – uncertainty that Heffernan’s act in 1993 amounted to an offence triable only on indictment (thus excluding offences under sections 20 and 47 of the Offences Against the Person Act 1861), we do not consider that the evidence of Morrell would have had the probative value referred to in section 105(1)(b) in any event.  We therefore reject the ground of appeal under gateway (f) as advanced by Mr Turner.
17.	We would go further.  Neither the submissions and ruling in the Crown Court nor the skeleton arguments on this appeal made any reference to section 105(7).  In our judgment, it was a complete answer to the application by reference to gateway (f).  Although the evidence sought to be adduced on behalf of the appellant originated in the witness statement of a prosecution witness upon whom the prosecution relied for his eye witness account of the murder, the prosecution did not seek to adduce evidence of the 1993 incident.  Indeed, their case disavowed any propensity to violence on the part of Heffernan.  In these circumstances, we do not consider that the evidence of Morrell about the 1993 incident was “prosecution evidence” within the meaning of section 105(7) or would have become such if it had been admitted upon the application of the appellant and by means of cross-examination of Morrell by counsel for the appellant.  In short, we do not consider that gateway (f) – or for that matter, gateway (g) – permits evidence of the bad character of one defendant to be adduced at the behest of another defendant.  Applications of that sort often arise, but their governing provision is gateway (e).  Gateway (e) was also relied upon by the appellant at trial.  The difficulty is that, whereas under gateway (f) the evidence must have “probative value” in correcting a false impression, under gateway (e) the evidence must have “substantial probative value” in relation to an important issue between defendants.  That is an additional protection for the defendant whose character is under attack by a co-defendant.  Having agreed with the trial judge that the evidence of the 1993 incident did not have probative value in the context of gateway (f), we have no difficulty in agreeing that it did not have substantial probative value in the context of gateway (e).  Although they did not say so in those terms, we apprehend that that is why the Full Court rightly refused leave to appeal the adverse ruling in relation to gateway (e).
Gateway (g)
18.	We can deal with gateway (g) more briefly.  The attack on the appellant by or on behalf of Heffernan was said to result principally from evidence elicited from the prosecution witness Carly Jo McFarlane when cross-examined on behalf of Heffernan to the effect that she was scared of certain people (including, by implication, the appellant) by reason of their reputations.  It is significant that, in relation to gateway (g), section 101(3) requires the evidence of bad character of a defendant not to be admitted if its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it – a provision which reflects section 78 of the Police and Criminal Evidence Act 1984.  Also, by section 101(4), the court “must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged”.  We are in no doubt that the judge took into account the temporal and qualitative matters to which we referred when considering gateway (f) and we are satisfied that, within the terms of section 101(1)(f), (3) and (4), his decision was correct for the same reasons.  Once more, it is our view that, under the statutory regime, any application on behalf of a defendant to adduce the bad character of a co-defendant has to be made not under gateway (g) but under gateway (e) because section 106(3) limits the admissibility of bad character evidence under gateway (g) to “prosecution evidence”.
Conclusion on appeal against conviction
19.	For all these reasons we dismiss the appeal against conviction and turn to the appeal against sentence.
Appeal against sentence
20.	Before imposing the sentence of life imprisonment and the minimum term of twenty years the judge expressed himself in terms which clearly indicate that he had formed a very unfavourable view of the appellant.  He stated:
“On the jury’s verdict the only intervention came when someone other than you struck him with considerable force over the head with a broken chair leg but you conducted yourself as you did, I have no doubt, confident that none of your friends or acquaintances would give you up, for the arrogant, utterly self-centred and vicious individual that you are.  And you were almost right.  Only one man, Carlos Demontis, was prepared to identify you as the attacker …
… I regard this particular offence of murder and the circumstances surrounding it as falling into a graver category than most murders where knives are used. … I am fully satisfied that [Donaldson’s] entirely coincidental arrival at Heffernan’s home brought about on your part a determination both to humiliate him and to kill him.  You acted out revenge for what had occurred between the two of you three years before when, on the evidence, you were then as much in the wrong as you were on this occasion.
You armed yourself with a large knife and you attacked him.  In so far as he used any violence on you, I have no doubt he did so in a desperate and forlorn attempt to defend himself.  In front of your brother and friends you taunted him and repeatedly stabbed him.  I have no doubt that he was terrified because he knew in those few moments that his life was on the line.  Having stabbed him viciously in the face and neck, as well as causing him further injuries, you eventually thrust that knife deep into his chest.  In my judgment, you plainly intended to kill him.  By then he was quite defenceless and indeed, I have no doubt, weakened both by the blow to the head and the earlier injuries you had inflicted.  It is no exaggeration to say, in my view, that his last few moments of consciousness must have been ones of abject terror ….
I detect no real mitigation for your actions.  While I accept your counsel’s submissions that the starting point for fixing the minimum period to be served is fifteen years, that hardly reflects the overall gravity of this case.  In your actions that morning you had no concern for the man you were taunting or those he would leave behind him, grief stricken parents and a young boy now fatherless.”
21.	It remains common ground that the appropriate starting point under Schedule 21 to the Criminal Justice Act 2003 was fifteen years.  
22.	Paragraph 10 of Schedule 21 sets out a non-exhaustive list of aggravating factors.  We accept the submission of Mr Turner that none of them was present in this case.  We think that the judge also accepted that submission but went on to increase the minimum period to twenty years by reference to matters not expressly referred to in paragraph 10.  
23.	We remind ourselves that this experienced judge had a unique opportunity to assess the appellant and we must be slow to interfere with that assessment except to the extent that it can be shown to have been erroneous.  We consider that we should defer to the judge’s negative assessment of the appellant’s personality.  However, there are two respects in which we consider that he was mistaken.  First, it seems that he increased the minimum period by reference in part to an intention to kill.  We do not go behind the conclusion of the judge that the appellant stabbed Donaldson with that intention.   In our judgment, however, that in itself ought not to have increased the minimum period.  The structure of Schedule 21 is that the lack of an intention to kill is a mitigating feature which can reduce the minimum period (paragraph 11(a)).  In these circumstances, it is inappropriate to invoke the presence of such an intention in order to increase the minimum period.  Secondly, we consider that the terms in which the judge expressed himself tended to undermine the submission of Mr Turner that, for all its gravity, there was very little premeditation to the offence.  As the judge accepted, the arrival of Donaldson at the house was “entirely coincidental” and could not have been expected by the appellant.  The murder weapon was not a knife habitually carried by the appellant but was one picked up by him in Heffernan’s kitchen.  We accept the submission of Mr Turner that the incident, for all its horror, was brief in time, although we also accept that it must have reduced Donaldson to a state of “abject terror”.
24.	We respectfully agree with the judge that there were aggravating features such as to require a minimum term above the starting point of fifteen years.  The judge was no doubt correct to describe the attack as being motivated by revenge for what had occurred three years earlier.  Even without the element of preplanning, that is an aggravating feature.  We also think that, although the appellant was not charged with an offence of perverting the course of justice and witnesses tended to deny that they had been intimidated by him, the judge was entitled to conclude that the appellant acted with confidence that his friends would not testify against him.  In the same way, we defer to the assessment of the judge that the appellant is “arrogant, utterly self-centred and vicious”.  
25.	Taking all these matters into account, we have come to the conclusion that the minimum period of twenty years is manifestly excessive to the extent that it reflects, in part, the matters upon which we believe the judge to have been mistaken.  We shall allow the appeal against sentence by quashing the minimum period of twenty years and substituting one of seventeen years.