Neutral Citation Number: [2013] EWCA Crim 2312
Case No: 201301477 C5
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Tuesday, 19 November 2013

B e f o r e:

LADY JUSTICE SHARP DBE 

MR JUSTICE GRIFFITH WILLIAMS 
 
MR JUSTICE LINDBLOM 
- - - - - - - - - - - - - - - - - - - - -
R E G I N A 

v
ROBERT FRANCIS 
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
165 Fleet Street  London EC4A 2AY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr J McCrindell appeared on behalf of the Appellant
Mr L Chinweze appeared on behalf of the Crown 
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T (Approved) 
1.	LADY JUSTICE SHARP:  This is an appeal with the leave of the Single Judge against conviction.  On 4 March 2013, the appellant, Robert Francis, was convicted after a trial at the Crown Court of Kingston upon Thames of one count of assault occasioning actual bodily harm, contrary to section 47 of the Offences against the Person Act 1861 and affray, contrary to section 3 of the Public Order Act 1986.  These were counts 1 and 2 respectively on the indictment.
2.	On 12 April 2013, he was sentenced to concurrent community orders of 12 months, with a requirement to complete 100 hours of unpaid work and to observe a daily curfew between 21.00 hours and 6.00 hours for eight weeks.  
3.	The facts which gave rise to the appellant's conviction are these.  On 16 May 2012, after the appellant had been working for two days on a building site as a brick layer, he discovered his laptop was missing.  The appellant was angry about this and an altercation broke out in the canteen between the appellant (holding a brick or claw hammer), two brothers Lee and Gary Parker, who were working as plumbers on the same site and a third plumber, Adam Clark.  
4.	The site manager, a Mr Dutton, saw the appellant outside with the hammer making threats and called the police.  When the police arrived about 20 minutes later, the appellant was abusive, made racial slurs and had to be restrained using handcuffs and leg restraints. He denied the offences in interview. 
5.	The prosecution case was that the appellant went to attack Lee Parker with the hammer.  He was then restrained by Gary Parker and Adam Clark, and during the struggle he cut Gary Parker's hand with the hammer, either intentionally or recklessly (count 1); and after the altercation once outside he brandished the hammer in an aggressive and threatening manner, threatening to kill one of the plumbers (count 2).  
6.	At the trial, Lee Parker said when the appellant came into the canteen he was angry and aggressive and demanded to know who had taken his laptop.  The appellant left but returned, and Mr Parker told him to calm down. The appellant became abusive saying, "I'll show you fucking calm".  He left the canteen again and returned holding the hammer raised above his head.  Lee Parker raised his arms to shield himself.  Gary Parker and Adam Parker intervened and all three of them ended up struggling with the appellant on the floor.  
7.	Gary Parker and Adam Clark gave similar accounts.  Adam Clark said that the tables in the canteen had gone everywhere as the appellant tried to get at Lee Parker with the hammer.  Gary Parker said that the appellant subsequently appeared outside with the hammer.  All three denied the suggestion put to them in cross‑examination that they had attacked the appellant for no reason.
8.	Mr Dutton said he had been called to the front office.  When he arrived the appellant was running around with a hammer using foul language, accusing the plumbers of stealing his laptop and threatening to use the hammer and kill one of them.  Mr Dutton said he was fearful for his life and for others.  He tried to calm the appellant down, but the appellant yelled at him and was aggressive.  Mr Dutton called the police and there was a confrontation between the appellant and the police when they arrived.  
9.	The police officers who attended gave evidence that the appellant was holding the hammer aggressively and pacing up and down with his teeth clenched.  Initially he would not let the hammer go, despite being told to do so.  When he threw it to the floor they were fearful he might attack them and grabbed his arms.  The appellant tried to pull away so they took him to the floor with the assistance of a woman passer-by.  One of the officers held his head to stop him biting and spitting and he was restrained with two sets of handcuffs.  The appellant was arrested and cautioned but was so busy shouting and swearing and struggling he may not have heard.  Other units were requested to attend by which time the appellant was kicking out with his legs and leg restraints were therefore applied.  
10.	The appellant said he had been angry when he discovered his laptop had disappeared.  He was holding the hammer because he had been working with it.  He went to the canteen and the second time he spoke to the plumbers and demanded to know who had taken his laptop.  He said he flipped, but only verbally because he did not get a response. The plumbers then “jumped him”, pinned him to the ground and removed the hammer.  He did not know how Lee Parker cut his hand.  
11.	When they got off him he walked around for about half an hour asking people about the laptop.  He did not brandish the hammer, nor was he aggressive.  He did not put the hammer down immediately when asked to by the police because he could not understand why they were more concerned about that than his laptop.  When he put it down they grabbed his arms and took him to the ground.  He accepted he was abusive and made racial slurs.  He was not told he was being arrested until he was in the back of the police van.  
The bad character applications 
12.	At the beginning of the trial the defence applied pursuant to section 100 (1)(b) of the Criminal Justice Act 2003, for leave to adduce bad character evidence in respect of Lee Parker and Adam Clark.  The defence wished to put to Lee Parker his conviction for violent disorder in June 2001, for which he was sentenced on 15 August 2002 to 18 months' imprisonment.  The conviction had arisen out of a large street fight in Derby 
13.	The defence wished to put to Mr Clark a formal warning that he had received on 19 January 2010 when he was 17 for an offence of assault occasioning actual bodily harm. The warning had been given after an incident on 1 January 2010, when he had kicked and punched the complainant causing minor injuries. This followed an argument between them in which he said the complainant had insulted his mother.
14.	Section 100 of the Criminal Justice Act (the Act) provides, so far as material, as follows:  
15.	"100 Non‑defendant’s bad character 
(1)In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if— 
...
(b)it has substantial probative value in relation to a matter which— 
(i)is a matter in issue in the proceedings, and .
(ii)is of substantial importance in the context of the case as a whole ...
... 
 (3)In assessing the probative value of evidence for the purposes of subsection (1)(b) the court must have regard to the following factors (and to any others it considers relevant)— 
 (a) the nature and number of the events, or other things, to which the evidence relates; 
 (b) when those events or things are alleged to have happened or existed; 
 (c) where— 
 (i)the evidence is evidence of a person’s misconduct, and 
 (ii)it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct,"
16.	The defence submitted that the issue on count 1 was whether the aggressor was the appellant or the plumbers.  This was an issue of substantial importance in the context of the case as a whole, and both the conviction and the warning were of substantially probative value in relation to that issue, particularly because they involved both "group" violence similar to that which had occurred in this case.  
17.	The judge refused the applications.  She said that neither the conviction nor the warning were of substantially probative value given the age of the conviction, the low‑level nature of what was alleged against Mr Clark (resulting, as it did, in a warning rather than a conviction) and the lack of similarity between those incidents, which involved street violence, and this case which concerned an incident at work. She mentioned too that the matters might divert the jury from its real task without enlightening them and would lead to the introduction of satellite issues.  
18.	The application in respect of Mr Clark alone was renewed following an answer given by him to a question put in cross‑examination.  It was suggested the plumbers had assaulted the appellant. Mr Clark said he had not done it and he had not done it on any other occasion.  The defence said this “opened the door” to the admission of bad character evidence since by that answer Mr Clark was seeking to give the impression he would never have behaved violently.  The judge dealt with the submission in short order.  She refused it for the same reasons, she said, as she had given for refusing the application on the first occasion on which it was made.
19.	Mr McCrindell, who appears for the appellant today and appeared for him at trial, submits that in refusing the bad character applications the judge fell into error.  He relies before us on the same arguments as those made unsuccessfully to the judge; and has referred us to the a number of authorities, including R v Brewster and Cromwell [2010] EWCA (Crim) 1194, R v S (Andrew) [2006] EWCA (Crim) 1303 and R v Braithwaite [2010] EWCA (Crim) 1082, which are relevant to the admission of bad character evidence pursuant to section 100 of the Act. In the event, we have not found it necessary to hear oral argument from Mr Chinweze for the prosecution, though we have been assisted by his submissions in writing.  
20.	In Braithwaite Lord Justice Hughes said this at paragraph 10:
21.	 
"This assessment [under section 100 of the Act] is, by definition, highly fact‑sensitive in each case. It is an assessment of whether the evidence in question substantially goes to show (prove) the point which the applicant wishes to prove on the issue in question. The issue will often, but not always, be either the propensity of the person against whom the application is made to behave in a particular way, or his credibility. The probative value of the evidence advanced falls to be assessed in the context of the case as a whole…” 
22.	In relation to the first application, the evidence which the defence wished to adduce was potentially relevant to an issue of substantial importance to the case, that is, who was the aggressor.  However, we do not consider the judge was wrong in her assessment of its probative value or therefore to refuse the application, broadly for the reasons she gave in her ruling.  In our view, on the facts of this case, the jury would not have been assisted in their deliberations by reference to either the conviction or the warning.  
23.	It is true as Mr McCrindell has pointed out that the judge referred at the end of her ruling to the potential for the introduction of satellite issues. In R v Brewster v Cromwell at paragraph 24 this court said in relation to the admission of bad character evidence pursuant to section 100 of the Act :
24.	 
"Once it is decided that [such bad character evidence is] …of substantial probative value in relation to an issue of substantial importance in the context of the case as a whole, there is no residual discretion except in the exercise of case management to refuse the admission of the evidence..."
However, as we have said, the judge refused to admit the evidence because of its lack of probative value; she did not, in our view, purport to exercise a residual discretion to exclude it. 
25.	As for the second bad character application, we do not consider that the way in which Mr Clark answered the question he was asked, on a fair reading of his answer in context opened the door to the bad character evidence the judge had already excluded.
26.	Although this is sufficient to dispose of this appeal we should add that even if the judge erred in the manner suggested we are in any event, of the view that the conviction of this appellant was entirely safe.  On his own admission the appellant got very angry about the disappearance of his laptop.  He returned to the canteen with a claw hammer, having failed to receive a satisfactory response from the plumbers and then verbally flipped, as he put it, at what he regarded as Lee Parker's dismissive response.  There was also ample independent evidence from Mr Dutton and the officers of the appellant's aggressive and threatening behaviour, including of his continuing to hold onto the hammer, after he had left the canteen.
27.	Mr McCrindell has renewed his application for leave to appeal against conviction on a further ground, for which permission to appeal was not expressly given by the Single Judge.  It was that the judge declined to direct the jury that if the appellant had been unlawfully arrested by the police he would have been entitled, as matter of law, to use reasonable force.  
28.	We do not think there is anything in this further point.  The appellant’s misconduct after the police arrived was not relied on by the prosecution as part of the affray and the appellant did not face a discrete charge relating to his behaviour on arrest. We take the view that in those circumstances such a direction was unnecessary.  
29.	For these reasons the appeal against conviction is dismissed.