Neutral Citation Number: [2014] EWCA Crim 1053
No: 2013/3929/C1 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Thursday, 8 May 2014

B e f o r e:
 
LORD JUSTICE DAVIS

MR JUSTICE MITTING 
 
THE RECORDER OF PRESTON
HIS HONOUR JUDGE RUSSELL QC 
(Sitting as a Judge of the CACD) 
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R E G I N A 

v 

LUCY CLARK
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Mr P Misner appeared on behalf of the Appellant 
Mr S Blackford appeared on behalf of the Crown 
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J U D G M E N T 
1.	LORD JUSTICE DAVIS:  This is yet another appeal against conviction based on a judge's decision to allow the prosecution to adduce evidence of a defendant's previous convictions.  In the present case the judge permitted such convictions to be adduced under the gateways provided by section 101(1)(d) and (g) of the Criminal Justice Act 2003.  Leave to appeal against conviction has previously been given by the single judge.
2.	The appellant was born on 9th March 1992.  Following a retrial at Chelmsford Crown Court before His Honour Judge Ball QC and a jury, she was unanimously convicted by the jury of a count of assault occasioning actual bodily harm.  In due course she was sentenced to a two year community order.  
3.	The circumstances of the offending were, briefly put, these.  The complainant was a young woman named Chelsea Robinson.  She was returning from a night out in Harlow.  She was on her own and approached a taxi queue in the early hours of 13th May 2012.  There she saw a man she knew called Roberts, having met him relatively recently at a party.  It appeared, according to her, that Roberts was involved in some kind of disturbance.  When she spoke to him he seemed angry.  The appellant was at that time Roberts' partner and was with him that evening.  The complainant was to say that Roberts told the appellant to hit her (that is to say the complainant) and she was struck on the head by the appellant with a shoe which the appellant had in her hand.  She fell to the ground and, according to her, was then further kicked and punched.  She was then taken from the scene by a man and subsequently she went to the Accident and Emergency department at a local hospital.  Stitches were inserted into her forehead where she had been cut and she also had various marks and bruises, in particular to her arm.  
4.	She made no complaint to the police at the time.  But thereafter she was, as she was to say, persuaded by her mother and friends to do so; and eventually she gave a witness statement, followed by a second witness statement.  Her mother also was to give evidence at trial about the complainant's state the following morning after she had returned home and of what the complainant said had happened.  Contemporaneous medical notes were also put in evidence.
5.	When interviewed, the appellant herself made no comment.  The defence was to be that so far from the appellant being the attacker, it was she who had been attacked by the complainant.  She had tried to defend herself by gripping the complainant's arm.  According to the appellant, in the course of the struggle one of her shoes, which she had already been holding in her hand as she had taken them off earlier as they were uncomfortable, accidentally hit the complainant on the head.  She denied that the complainant fell to the ground or that she had struck the complainant whilst on the ground.  She said that blood on her own legs, observed by a policeman who attended the scene subsequently, had been caused by her falling down some steps at a club earlier that evening.  
6.	Those, in short, were the issues.  Various potential discrepancies and inconsistencies in both versions of events were fully explored in evidence.  Credibility was very much in issue.
7.	As it happens, the appellant has a significant number of previous convictions for violence.  The complainant had none.  Those convictions included the following, all relating to incidents of violence when the appellant was but a child.  On 19th June 2005, following a verbal argument, she had slapped the victim to the face causing redness; she received a supervision order of 12 months.  On 15th May 2005 she had bitten and kicked a victim twice in the head causing bruising and marks.  She received a referral order.  On 1st January 2005 she had flicked a lighter in the hair of a female victim aged 54 years and received a referral order.  On 4th January 2005 she hit a victim with a handbag round the body and on the same date she had lashed out at a man, punching him on the arm.  All these incidents occurred when she was under the age of 14.
8.	Subsequently, there were three further incidents of violence occurring in 2007.  On 15th April 2007 the appellant had punched the female victim in the face and pulled her hair.  On 19th August 2007 she assaulted a female victim by slapping her in the face.  On 3rd October 2007 she kicked a female victim aged 15 to the head.  She received various non‑custodial sentences.  
9.	On all of these occasions the appellant had pleaded guilty.  
10.	At the first trial the prosecution had sought leave to adduce evidence of the appellant's later three previous convictions for violence: that is to say, the ones occurring in 2007.  But it had not sought to put in evidence the earlier previous convictions when she had been around the age of 12.  In the event, the trial judge at the first trial declined to allow the prosecution to put any of such convictions before the jury.  
11.	At the second trial, however, the prosecution again sought to put in evidence of the previous convictions, not only on this occasion limited to those convictions of violence taking place in 2007 but also the previous incidents of violence occurring in 2005.  The trial judge, Judge Ball QC, acceded to that application and allowed all such convictions for violence to be placed before the jury, ruling that they fell within the gateways both of section 101(1)(d) and sections 101(1)(g) and declining to exercise his discretion to exclude them under section 101(3). 
12.	It had been argued on behalf of the appellant at trial before Judge Ball QC that such offending did not disclose propensity.  Very particular emphasis was placed on the young age of the appellant at the time.  It seems that she had been taken into care at the age of around 10 or 11 and many of those incidents occurred whilst she was in care and in the care context.  
13.	So far as the offences occurring in 2007 were concerned, it was pointed out that those took place within a relatively narrow period of around a few months and that since 2007 she had had no further convictions for violence at all.  
14.	It was conceded before the judge that, because of the nature of the defence being advanced, the gateway set out in section 101(1)(g) was passed.  But it was submitted that these previous convictions were so prejudicial and had occurred such a significant amount of time ago as to make it unfair for those convictions to be put before the jury.  Yet further it was submitted that the evidence of the previous convictions simply went to support what was otherwise asserted to be a weak prosecution case.  
15.	The trial judge would have none of it.  He ruled that the previous convictions, all of them, should go before the jury.  He considered that it was important that the jury in making their assessment of the situation should know that one of the two parties involved had a significant history of violent conduct and that it would not be right that the two in effect were to be presented to the jury, as he put it, "on an equal footing."  The judge considered that in truth it would be something of a "distortion" if the fact of the appellant's previous convictions for violence were kept from the jury.  The judge expressly found that they went to the issue of propensity.  He also indicated that they had a part to play on the issue of credibility when the jury had to consider whether or not the complainant had told lies about what had happened.  The judge further rejected the assertion that such previous convictions were only sought to be adduced to bolster a weak case.  The judge said:
"... it is not my judgment that this is a weak prosecution case and it is not the case of some desperate attempt to shore up an otherwise failing and weak case, far from it."  
The judge of course was well‑placed to express such a view.  In due course the judge summed up in entirely appropriate and fair terms to reflect the gateways under which this evidence had been permitted to be placed before the jury.
16.	On this appeal Mr Misner on behalf of the appellant, who also appeared at the trial below but not at the first trial, maintains that the trial judge had been wrong to permit these previous convictions to be adduced in evidence.  In this regard, he makes one entirely new point which was not a point advanced to the trial judge, although it was a point which had been adverted to at the first trial.  This point is by reference to the provisions of section 108(2) of the Criminal Justice Act 2003.  That reads as follows:  
"(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." 
17.	Mr Misner seeks to say that that shows the importance Parliament has attached to excluding, in appropriate circumstances, convictions occurring when an offender is under the age of 14, and that that was a point that was relevant for the judge to know: just as the judge at the first trial had been made aware of the point.
18.	Quite what is the rationale behind section 108(2) is not entirely clear to us.  Certainly neither counsel appearing before us was in a position to draw our attention to any materials indicating what Parliament had in mind: albeit these provisions do reflect what was contained in earlier legislation.  Thus the section as it currently stands is not, for example, geared to persons over the age of 18.  Rather the section is geared to persons aged over 21.  At all events it is possible, perhaps, to deduce that Parliament may have had in mind the period of time which might elapse between the age of 14 and the age of 21: but other than that it is difficult to draw any firm conclusions.
19.	The difficulty as we see it for Mr Misner's argument is that on the face of it section 108 has nothing to do with this case.  It has nothing to do with this case because the appellant was not aged over 21 at the time of the offending.  She was aged 20.  Accordingly, section 108 as such does not apply.  We do not see that there can be some kind of "near miss" approach which somehow enables that section to be invoked.  This was therefore not a statutory provision which was required to be drawn to the judge's attention to enable him to exercise his discretion properly.  It may be that it had been referred to at the first trial; but that does not mean that it was required to be referred to at the second trial.  We got the impression both that Mr Misner chastised himself for not having drawn the judge's attention to the section and that Mr Blackford was anxious that he had not drawn it to the judge's attention, even though it had been referred to the judge at the first trial which he had also prosecuted.  In that regard, Mr Blackford made clear that he could not simply recollect the precise course of events as to why it was mentioned at the first trial but not at the second trial.  In our view, neither counsel need chastise themselves on this score.  The point was not a point which required to be drawn to the judge's attention.
20.	Mr Misner's better point, in our view, is to seek to link, at best, the overall approach apparently contemplated by that provision to the actuality of what had happened here in terms of the appellant's age at the times of her previous offending.  But those were points which he very fully and quite rightly developed before the judge in any event; and they of course did indeed need to be very carefully considered.  All judges in this context will be sensitive to an attempt to rely on previous convictions for offending which occurred when the offender was a child and in particular when the offender was a young child.  The judge had that well in mind.  The judge explained precisely his reasoning and in our view his reasoning was entirely proper and open to him in the particular circumstances of this case.  The totality of this offending was such as to indicate a propensity to violence, indeed gratuitous violence, it could be said; and that is not to be displaced by virtue of the fact that the offending occurred when the appellant was a young child.  Indeed, Mr Misner had to accept further that the offending in 2007 had occurred when the appellant was over the age of 14 and so that was a further reason why section 108 could not, even collaterally, have come to his aid.  But he further sought to submit that allowing evidence of those three 2007 convictions to be adduced would have been placed on a different footing had the offending when the appellant was 12 itself been excluded.  We do not think that is necessarily the right way to approach it.  We think the judge's way of approaching it, which was to look at the offending in totality, was an entirely proper approach given the circumstances of this case.  
21.	Furthermore, as we have said, the evidence of bad character as was conceded also fell within section 101(1)(g).  It was a justifiable conclusion that the jury should know the full details about the person making the accusations against the complainant; and, as the judge pointed out, there may well have been an element of distortion had the jury not had the full picture.  
22.	As to the judge's decision not to exclude such evidence under section 101(3), that in our view was a matter for his evaluation and discretion and we can see no basis whatsoever for interfering with his decision not to exclude such evidence.  Thereafter it was for the jury to decide whose version of events they believed.  The jury by its unanimous verdict made clear what their view of the events had indeed been.  This, we add and repeat, was their conclusion after a full and entirely fair and proper summing‑up on all relevant aspects.  
23.	For these reasons, we think there is no substance in this appeal and we therefore dismiss it.