Case No: 201304067 C2
Neutral Citation Number: [2013] EWCA Crim 1851
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Maidstone Crown Court
His Honour Judge Griffith-Jones QC
T20127384
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 25/10/2013
Before :

LORD JUSTICE FULFORD
MR JUSTICE BURNETT
and
MR JUSTICE HICKINBOTTOM
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Between :

	William George Laws-Chapman		
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	Regina		

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Mr N Cotter (instructed by Fisher Cowe Solicitors) for the Appellant
Miss S Ellis (instructed by The Crown Prosecution Service) for the Respondent

Hearing date: 25 September 2013
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Judgment
Lord Justice Fulford : 
Introduction

1.	On 8 July 2013 in the Crown Court at Maidstone the applicant, who is now aged 89, was convicted by a jury of indecency with a child under the age of 14 contrary to section 1(1), Indecency with Children Act 1960 (count 1) and buggery with a person under the age of 21 contrary to Section 12, Sexual Offences Act 1956 (count 2), in each instance between 1 January and 31 December 1978. He was sentenced by H.H. Judge Griffith-Jones QC to concurrent terms respectively of 2 years’ and 8 years’ immediate imprisonment. 
2.	His application to appeal these convictions has been referred to the full court by the Registrar of Criminal Appeals.
The issue on the appeal

3.	The sole issue raised on this appeal is whether, in the context of two historic sexual offences dating back to 1978 which involved an allegation of violent, paedophile behaviour against the will of the victim (who was 12 or 13 years of age at the time) the judge was right to admit in evidence a single conviction for buggery in 1985, involving a 17 year old, which may well have been consensual and when the court had no details relating to the latter offending, save as regards the identity of the victim and the location of the offence. 
The background

4.	The complainant, SB, was born in 1965 and in his evidence he described a difficult and unsettled home life; his parents drank excessively, and they were violent to each other and to SB and his siblings. They moved address frequently but when he was aged between 11 and 13 they lived in Carrow Hill, Norwich. Eventually he left home when aged 16 and lodged with neighbours. He was angry with his parents, particularly because he believed they had been aware of, and complicit in, the sexual abuse with which this case is concerned.
5.	His father had a friend called “Jim” who was a frequent visitor to their house and who invited him to play pinball at a local café. There he was introduced to the owner, whom he described as a “very big, fat greasy man” who walked around the premises smoking a cigarette. He recalled the view from the café window and that he was given free drinks and doughnuts by the owner. After a few visits he was offered a job washing up. 
6.	On one occasion, when he had finished washing up, the owner locked the café door and offered him some food in the back room. He asked SB to “model” some tattoo transfers. He was instructed to remove his shirt and trousers and to lie down with his bottom raised. His underpants were pulled down and transfers were placed on his legs and backside. A knife was placed beside him and he was told not to look round. SB realised from the sound of the man’s breathing that he was masturbating and taking pictures at the same time. The man repeatedly touched and stroked his bottom before ejaculating over his back. He then drove SB home in his beige Ford Cortina. He was threatened that if he told anyone he would be hurt with the knife. These events were reflected in count 1.
7.	There was some confusion in the evidence of SB as to the location of the café. At one stage he suggested that it was in the vicinity of Ber Street where a man called Reynolds ran a café (we turn to issues concerning Reynolds in more detail later in this judgment), but in due course he indicated he had made an error when he was taken round Norwich by the investigating officers. He pointed out 16 Wensum Street (by that time the “Out of Africa shop” but formerly the location of the applicant’s café) where he suggested the abuse had occurred. SB said he recognised the shops opposite. SB failed to identify the applicant when he was shown a number of photographs, and in consequence the reliability of his identification of the premises where he alleged he had been assaulted became an issue of considerable importance in the case. 
8.	Turning to count 2, on a later occasion, “Jim” and a scruffy dark haired man came to SB’s house and invited him to Jim’s flat, which was behind a public house called the Rose. He went with them and was given a cup of tea that made him feel tired. He believed he had been drugged because he fell in and out of consciousness. They walked him to another flat and he remembered seeing more men, about four or five, including the café owner who had previously abused him.
9.	He completely lost consciousness and when he came round he was being anally raped. He believed the perpetrator was the “fat man” from the café because he recognised the sound of his breathing. The others were laughing and encouraging what was taking place. Thereafter the other men raped him, one after the other, and ejaculated inside him. He said he had never experienced such pain. Afterwards he recalled being near the door of the flat and seeing the “fat café owner”. They sat him on the steps outside the flat and he felt embarrassed because he needed to use the lavatory and was uncontrollably soiling himself. Jim stayed with him for a while but then told him to go on his way.
10.	He thought he had used the lavatory in the park to wash himself and his trousers, but later corrected this and said he believed he used the one in the Ber Street Gates Public House, before he sat down in the park behind the railings.
11.	He walked for several hours, constantly needing to use the lavatory, before eventually deciding to go home. He had wanted to tell his parents but he found them in the living room, drinking and laughing with Jim and the scruffy dark haired man, two of the men who – as set out above – had been involved in raping him. They grinned at him and he felt so scared that he ran to his bedroom and barricaded himself inside. He believed his parents knew what had happened. 
12.	SB accepted that he had not told anyone about this abuse at the time. He had been too afraid to confide in his family or anyone from social services, and he had no teachers with whom to talk because he was kept away from school for a good deal of the time. He decided to repress his memory of these events and to get on with his life. However, the memories started to resurface and he had nightmares in the mid-1990s, and at that stage he began to piece together these past events.
13.	A number of witnesses were called who gave evidence about the way in which SB began to address what had happened to him in 1978, and they described what he told them about the two offences. 
14.	He made a report to the police. During walks with DS Crouch around Norwich to which we have already referred, he identified two particular locations: 16 Wensum Street and the flat where he had been raped by several men.
15.	The applicant was arrested on 14 March 2012. In interview he denied the allegations. He said he had run the café at 16 Wensum Street between 1975 and 1978 and had been assisted by his wife Ivy in setting it up. He suggested he had weighed less at the time, and he used to keep fit. He had owned a brown Ford motorcar and someone called Ian worked as a tattooist in the back room. He did not recall the names of either the complainant or his father. He agreed that children sometimes helped with the washing up in return for a packet of cigarettes or some similar reward. When he was asked whether he had ever touched any boys inappropriately, he answered, “No, definitely no”. When the allegations were put in more detail he stated, “I should never think I would want to do that sort of thing” and “When you’re a married man why the hell do you want to do a thing like that.”
16.	The applicant did not give evidence and he did not call any witnesses. He denied the entirety of the sexual allegations made by the complainant. Particularly, he suggested SB was mistaken in his identification of his café as being the site of the alleged sexual abuse. It was asserted on his behalf that the true culprit was a known paedophile named Roy Reynolds who ran a café nearby, as described above.
The application to introduce evidence bad character

17.	The prosecution in a written application dated 30 January 2013 to introduce evidence of bad character relied on a single basis: that the applicant’s conviction on 14 November 1985 at the Norwich Crown Court for an offence of buggery committed on 29 March 1985 at the rear of the Cathedral Café, Wensum Street was relevant to an important matter in issue between the defendant and the prosecution pursuant to section 101(1)(d) Criminal Justice Act 2003. The prosecution put the application as follows:
[…] the defendant has a propensity to commit sexual offences of the type charged in the current case. The facts of the current case are very similar to the incident of bad character. It is alleged in this case that the defendant sexually abused a 13 year old boy in the same café that featured in the 1985 case. It is also alleged that he committed buggery with the same victim on a separate occasion. These offences took place in 1978.

This evidence supports the prosecution case that the defendant has a propensity to commit offences of the type, or identical to those alleged in the this case and that that propensity makes it more likely that the defendant committed the offences with which he is charged. 

The ruling

18.	The judge delivered his ruling on 3 July 2013 (during the trial), in which he decided that evidence of the applicant’s alleged bad character was admissible. He noted that the present charges involved the contention, first, that the victim had been indecently assaulted in the late 1970s in the backroom of a café in Norwich operated at the time by the applicant and, second, that he and others had been guilty of the offence of buggery at a nearby flat. The judge suggested that the applicant’s conviction in 1985 for an offence of buggery on a 17 year old boy, committed apparently once again in the back room at the same café when no other details of the incident were available, could properly be described as relevant and admissible evidence of bad character. 
19.	The routes to admissibility identified by the judge were various, and he referred to the provisions of section 101 of Criminal Justice Act 2003 (“the Act”), and particularly Gateways F, D and G. 
20.	The judge suggested that this evidence served to contradict the impression created in interview by the defendant that he would never have acted as alleged towards the victim in the present case and “was not that way inclined”. 
21.	We interpolate to note that during the interview, when the officers put to the applicant that he had forced the victim to undress and had touched him inappropriately, the applicant responded by stating that the allegation was a lie and he said “I wouldn’t do it anyway”. He went on to suggest that the victim may have stolen a large sum of money from him. Under further questioning the applicant referred to the fact that he was married with two sons. When asked by the officers if he had ever had anal sex with a man, he denied the suggestion.
22.	Returning to the judge’s ruling, the court accepted that in order for the evidence of bad character to be admissible to correct a false impression given by the applicant, it needed to demonstrate “a relevant propensity”. For that reason, the judge proceeded on the basis that the prosecution’s application was:
 […] founded primarily upon Gateway D, in that it is said that the evidence is relevant to an important matter in issue between the defendant and the prosecution, that issue being (as contemplated by Section 103) whether the defendant had a propensity to commit offences of the kind with which he is now charged; more particularly whether he had a sexual interest in boys and an inclination for buggery. I should say that a second strand of propensity also alleged, namely a propensity to be untruthful. That is on the basis that his conviction came after a trial, he having denied the 1985 offence.   

23.	It was expressly accepted by the judge that for the purposes of section 103(2), the applicant’s conviction was not for an offence of the same category as either of the present offences, in that it related to an offence against a 17 year old. However, having made that observation, the judge stated: 
Nevertheless, it seems to me that the fact that the conviction does provide evidence from which the jury could properly conclude that the defendant had a sexual interest in boys and moreover was inclined towards buggery.

24.	The court concluded that the fact that it was an isolated conviction, involving the circumstances just described, would not preclude the jury properly from concluding the applicant had the relevant propensity. 
25.	The judge also decided that the assertion by the defence that the victim in the instant offences had mistakenly identified the applicant, and that the “more likely candidate is another individual named as Mr Roy Reynolds, who is said to have a conviction or convictions for offences of child sex abuse of one form or another” meant that the application was properly made out under Gateway G, on the basis of an attack on the character of another. 
26.	Addressing the issues of fairness and injustice, the judge concluded that none existed as regards the applicant that could not be cured by appropriate directions; there would be unfairness to the prosecution if the evidence was excluded; and there was a risk of the jury being misled as regards the suggested involvement of Mr Reynolds if they were unaware of the applicant’s conviction.
27.	Finally, the judge rejected the suggestion that this evidence would impermissibly bolster a weak case, on the basis of the identification of the site of the applicant’s café by SB.
The relevant provisions of the Criminal Justice Act 2003

28.	The provisions relevant to the judge’s ruling are as follows:
Section 101
(1)	In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if – 

[…]

(d) it is relevant to an important matter in issue between the defendant and the prosecution,

[…]

(f) it is evidence to correct a false impression given by the defendant, or

(g) the defendant has made an attack on another person’s character.

Section 103

(1)	For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include –

(a)	the question whether the defendant has a propensity to commit the offences of the 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;

(b)	the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect.

(2)	Where subsection (1)(a) applies, a defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of – 

(a)	an offence of the same description as the one with which he is charged, or

(b)	an offence in the same category as the one with which he is charged.

(3) Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case.

(4) For the purposes of subsection (2)—

(a)	two offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be in the same terms;

(b)	two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State.

[…]

Section 105

(1)	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. 

(2)	A defendant is treated as responsible for the making of an assertion if –

(a)	the assertion is made by the defendant in the proceedings (whether or not in evidence given by him), 

(b)	the assertion was made by the defendant –

(i)	on being questioned under caution, before charge, about the offence with which he is charged, or

[…]

Section 106

(1) For the purposes of section 101(1)(g) a defendant makes an attack on another person's character if—

(a)	he adduces evidence attacking the other person's character,

(b)	he (or any legal representative appointed under section 38(4) of the Youth Justice and Criminal Evidence Act 1999 (c. 23) to cross-examine a witness in his interests) asks questions in cross-examination that are intended to elicit such evidence, or are likely to do so, or
(c) evidence is given of an imputation about the other person made by the defendant—

(i) on being questioned under caution, before charge, about the offence with which he is charged, or
(ii) on being charged with the offence or officially informed that he might be prosecuted for it.

(2) In subsection (1) “evidence attacking the other person's character” means evidence to the effect that the other person—

(a) has committed an offence (whether a different offence from the one with which the defendant is charged or the same one), or
(b) has behaved, or is disposed to behave, in a reprehensible way;
and “imputation about the other person” means an assertion to that effect.

	(3) […]

The summing up
29.	The suggested relevance of the bad character evidence to a propensity on the part of the applicant to be untruthful did not feature in the summing up. Instead, the judge directed the jury on this issue as follows: 
“You have heard that in November 1985 the defendant was convicted of an offence of buggery on a 17 year old boy and that the offence was committed in the back room at the same café where [SB] says he met the defendant and the incident in Count 1 took place. The reason why you have heard about that is principally because the Crown say it contradicts the impression which you may think the defendant gave during his interviews when to the allegations being put to him you may think he suggested that he was not the sort of person to do something like that. The Crown say, on the contrary, his conviction demonstrates that he was someone with a particular side to his character, which included having a sexual interest in boys and being inclined to act pursuant to that sexual interest, even to the extent of buggery.
This is something which you will wish to consider, bearing in mind that his history reveals only one such conviction in 1985 with nothing similar in his record before or since, and also that his victim on that occasion was aged 17. If you are not sure that he had that side to his character then the Crown’s point simply does not arise and you should consider it no further. If, however, you are sure that he was someone at the material time did have that side to his character you are entitled to consider whether that makes it more likely that he acted as [SB] said he did towards him in the late 1970s, initially in the same back room at that café. Again, that is something for you to consider. It is a matter for you.
There is further reason why you heard of the defendant’s conviction, and it is this, it has been part of the defence case to suggest that [SB] may have made a terrible mistake and that the true culprit who abused him may have been not this defendant but someone else, in particular Roy Reynolds, who, you have heard, has numerous convictions for sexual offences, they are listed now in your admissions. In the circumstances it is thought right that you should know about the defendant’s conviction so you are not misled in any way when weighing all the evidence, and in particular when considering the relative likelihood of the defendant and Mr Reynolds being the man referred to by [SB], something you will do, of course, in the light of all of the evidence you have heard.
Although you know of the defendant’s conviction, it is important that you do not attach too much importance to it. Plainly, you must not conclude that because of it he must be guilty or either of these offences with which he is now charged, and it obviously does not follow that just because the defendant behaved in a certain way in 1985 he behaved in a similar fashion on either of the two occasions here alleged. You must consider your verdicts in each case in the light of all the evidence about what happened on each occasion respectively. In considering all the evidence, however, you are entitled to have regard to the fact that the defendant has this conviction in 1985 to the extent that you feel it helps you in the manner in which I have directed you.”        

30.	It follows, the 1985 conviction was left for the jury’s consideration as being relevant to three issues: first, it corrected a misleading impression that the applicant did not have “a particular side to his character which included having a sexual interest in boys and being inclined to act pursuant to that sexual interest, even to the extent of buggery”; second, if he did have that side to his character, it potentially made it more likely that he committed the offences in 1978; and, third, it was relevant to whether Reynolds, rather than the applicant, was the perpetrator. 
The submissions

31.	The applicant suggests that the judge wrongly admitted this evidence, given it related to a single conviction for buggery that post-dated the current offence and involved a victim (aged 17) who was significantly older than SB. It is argued the later conviction lacked probative value, given the absence of similarity beyond the fact that it was an offence against the same legislative provision; furthermore, the facts of the previous conviction were essentially unknown save as regards its location.
32.	It is submitted the judge erred in ruling that the evidence was admissible given the defence case was that the principal witness was mistaken in his identification, and that the lies told by the applicant in interview as to his sexual past did not justify the judge’s decision to admit the evidence. In all the circumstances, it is argued that the introduction of this material was unfair and it had an adverse impact on the trial.
33.	Although the prosecution in its written submissions sought to uphold the judge’s decision, in oral argument, as explained below, it was conceded that the 1985 conviction was inadmissible and that the conviction was unsafe. 
Discussion
34.	As we have indicated, little was known about the earlier offence, save that on 14 November 1985 the appellant was convicted of buggery under a now-repealed provision, section 12 Sexual Offences Act 1956, for which he received a sentence of 8 months’ imprisonment, with 4 months suspended. The date of the offence was 29 March 1985, and the particulars were that he had committed buggery on RF, a 17-year-old man who was under the age of consent that then applied, namely 21 years. The only details of the circumstances of the offence available for the present trial were recorded on a contemporary arrest/summons form, namely that the offence was committed at the rear of the appellant’s shop premises, the Cathedral Café, Wensum Street, Norwich. The prosecution accepts that the sentence the judge imposed on that occasion strongly tends to indicate that it was not suggested that the appellant had used coercion, or that this offence was otherwise committed against the will of RF.
35.	The instant offences have been tried in 2013, not 1978 or 1985, and it is highly likely that the circumstances of the 1985 incident no longer constitute a criminal offence of any kind, given that since January 2001 consensual sexual activity between males over the age of 16 (including buggery) has been lawful (see Sexual Offences (Amendment Act) 2000).  
36.	The essence of the allegation in the present case is that the appellant committed violent, paedophilic offences against the will of the 12 or 13 year old victim, and it is critical that none of those features formed part of the 1985 incident. During the course of oral submissions – in order to explore the relevance of the 1985 conviction – these overall circumstances were notionally transposed into a heterosexual context, and the Crown accepted that it is inconceivable that an attempt would be made to introduce the fact that a male defendant, at some stage in his past, had had lawful, consensual sexual intercourse with a female – however great the age difference between them – in support of a prosecution for violent and paedophile offences, committed against an unwilling young victim. Lawful and consensual sexual activity would simply be irrelevant in this context, regardless of whether the offender is a homosexual or heterosexual. Put otherwise, mutually agreed sexual relations between individuals over the age of consent do not, certainly without more, tend to prove that the older participant is a paedophile, who has a propensity to commit violent crimes against children.
37.	The judge’s directions to the jury reveal the lack of any real relevance of the 1985 conviction. As set out above, the judge – having reminded the jury that the offence of indecent assault in 1978 and the buggery in 1985 were allegedly committed in the same place – suggested that they had been told about the latter offence because the appellant had suggested that he was “not the sort of person to do something like that” and that potentially “his conviction demonstrates that he was someone with a particular side to his character, which included having a sexual interest in boys and being inclined to act pursuant to that sexual interest, even to the extent of buggery”. With respect to the learned judge, in our judgment this direction involved wholly flawed reasoning. 
38.	The applicant denied, when interviewed by the police, having previously had anal sexual intercourse with a man. That assertion, which was elicited in response to questions put to him, did not form part of his defence at trial. It was an irrelevant issue which could easily have been excluded from the copies of the interview transcripts put before the jury. Instead, the central issue in this case, for which the applicant had been arrested and about which he was interviewed, was whether in 1978 he had committed two violent paedophile offences against the will of the victim. The applicant argued he had been mistakenly identified, and whether he had had consensual sexual relations with other males over the present-day age of consent on other occasions was not germane to the question of whether he had committed these offences.   In our judgment, the circumstances of the 1985 offence did not tend to demonstrate that the appellant was more likely to “do something like that”, namely engage in two violent sexual attacks on SB in 1978 or that he had “a particular side to his character”, namely a proclivity or a propensity to commit violent sexual offences against children. 
39.	The judge added that this evidence had additional relevance because the appellant had alleged during the trial that SB might have confused him for a man called Roy Reynolds, the owner of the café on Ber Street, who had numerous convictions for sexual offences against children. The judge suggested that it was relevant for the jury to know about the 1985 offence “so that they [were] not misled in any way in weighing all the evidence, and in particular when considering the relative likelihood of the defendant and Mr Reynolds being the man referred to by SB […]”. This reasoning is equally flawed: the 1985 conviction is not to be equated with offences against children of the kind with which this case was concerned, for the reasons we have set out, and it would have been of no legitimate use to the jury when assessing whether Reynolds, as opposed to the appellant, was the perpetrator of the 1978 offences.
40.	As already indicated, Miss Ellis for the prosecution accepted during oral submissions – in our view fairly and properly – that the 1985 conviction was a highly prejudicial piece of evidence, and she conceded it was inadmissible. In those circumstances, she did not seek to uphold the judge’s decision, in which he had granted the Crown’s application to admit this evidence. At the conclusion of the hearing we allowed the appeal and quashed the convictions on both counts. These are our reasons for that decision.