Neutral Citation Number: [2007] EWCA Crim 3047
Case No: 200606397 D4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROYDON CROWN COURT
HIS HONOUR JUDGE PRATT
T20067101
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14/12/2007
Before :

LADY JUSTICE SMITH
MR JUSTICE UNDERHILL
and
SIR CHRISTOPHER HOLLAND
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Between :

	Donnette Lowe	Appellant	
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	Regina	Respondent	

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Ms Julia Smart (instructed by The Criminal Appeal Office) for the Appellant
Mr J Dawes (instructed by Crown Prosecution Service) for the Respondent

Hearing date : 30 November 2007
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Judgment
Sir Christopher Holland : 
1.	The Appellant, Donnette Lowe is aged 43; he is of Jamaican nationality.  On the 13th November 2006 at Croydon Crown Court he was convicted by a jury (a majority of 11 to 1) on Count 1 of a two count indictment.  Count 1 charged the vaginal rape of a woman who we will refer to as PN on the 22nd March 2006.  Count 2 alleged a like offence committed on the 23rd March; as to this, the jury were unable to reach a verdict and were discharged from doing so.  Thereupon the Crown offered no further evidence and a not guilty verdict was entered.
2.	On the 22nd December 2006 he was sentenced to 5 years imprisonment and a recommendation for deportation was made.
3.	He subsequently applied for leave to appeal against both conviction and sentence.  As to conviction, his Counsel (Miss Julia Smart) advanced five grounds of appeal; the Single Judge gave leave only on Ground 2.  The application for leave to appeal sentence was refused.  Before this Court Miss Smart made submissions in support of the appeal and sought to renew the applications for leave with respect to both conviction and sentence.
4.	Turning to the essential facts, they are as follows.  The complainant, PN, was then aged 42.  She was in employment as a special needs teacher and had her own house in the Croydon area.  In about November 2000 a relationship developed between her and the Appellant.  On any view this relationship was subject to strains.  By reason of his immigration status the Appellant had no regular income from employment.  Then, the Complainant had a daughter by an earlier relationship aged 21 at the material time, to whom we will refer as BT.  The latter could not tolerate the Appellant’s presence in her mother’s house and would not willingly enter it when he was there.  Still further, in 2003 upon the couple returning from a foreign holiday, the Appellant was caught using a false passport and subsequently served a six month prison sentence.
5.	Additional to the foregoing matters (which were effectively common ground) the Complainant alleged that on occasion in the course of the relationship the Appellant used or threatened violence.  It will be necessary to return to that allegation later in this judgment, presently noting that the facts are wholly or partially a matter of dispute.  Similarly in issue is the Complainant’s contention that by March 2006 the relationship was losing its sexual component.
6.	All that said, the Complainant had had a child by the Appellant – a daughter, C, who was aged 14 months as at March 2006.  It is conceded that the Appellant maintained a good relationship with his daughter.
7.	By March 2006 the Appellant was mainly resident in the Complainant’s garage.  This left the way clear for BT to come to the house and the arrangement enabled the Appellant to engage in his religious observances.  Indeed, an issue had developed over payment of so much of the electricity bill as was referable to the garage.
8.	Turning to Count 1, the prosecution case has been helpfully summarised by Miss Smart in her Advice:
“The Complainant alleged that in the early hours of 23rd March (she originally alleged the 22nd but this was amended during the trial) she was in her bedroom and the Defendant came in and tried to get into her bed.  The Defendant started to fondle her and she knew that he wanted to have sex.  She said she was tired and had to go to work the next day and there was an argument about waking C up (who was in the same room).  She alleged that the Defendant punched her in the jaw.
She then went down stairs to turn down the heating and the Defendant followed her down.  She alleged that once downstairs in the kitchen the Defendant pushed her over a kitchen unit and put his hands around her throat.  He let go and then she had an argument with him about him always wanting to be in control.  She alleged that he then punched her in the ribs and she fell to the floor.  She stayed on the floor for a while then went and sat on the sofa.
The Defendant knelt on the floor in front of her and started to undress her.  She thought she may have said the word “no” but did not have any “fight” in her and then did not say anything.  The Defendant had sex with her.  It did not last for long and at the end he kissed her.  She stated that she thought that the Defendant must have thought he was being affectionate.”
9.	It is germane to note the Complainant’s case as to Count 2.  Again, citing from Miss Smart’s Advice:
“On the evening of March 23rd the Defendant was once again in the house and had seen C in the afternoon.  Later that evening the Complainant said he came to her bedroom and said “Still sulking?” which she took to be a reference to the night before.  The Defendant was trying to get C off to sleep and afterwards he tried to undress the Complainant.  She said, “I’ll do it”.  She said that BT would be home soon as an excuse to convey to the Defendant that she did not want sex.  He started to kiss her and say that he was not going to be long.  She didn’t say anything but was unresponsive and he inserted his penis into her vagina.  She alleged that the Defendant said “You’re hard to fuck when you don’t want it but I’m enjoying it anyway.”
10.	As to the subsequent complaints of rape there was a convoluted history.  On the 24th March the Complainant went to a Family Justice Centre and, speaking to a Detective Sergeant, initially raised the electricity bill issue.  There then followed a complaint as to the Appellant’s violence.  That led to a referral to a domestic violence counsellor to whom a complaint of rape (said to have been be committed in the bedroom) was made.  Medical examination identified a small bruise on the right upper arm.
11.	On the 3rd April 2006 a long, comprehensive witness statement was completed by the Complainant setting out the allegations summarised above.  On the 18th May 2006 she provided another witness statement.  In this she did not resile from her factual contentions but evinced a reluctance to maintain them against the Appellant so as to risk undermining his relationship with C.  In the event she responded to a witness summons and gave evidence in accordance with the initial statement.
12.	We turn to this Appeal and the leave given by the Single Judge.  The point has its genesis in an application made by the prosecution to the trial judge to adduce bad character evidence.  We think it necessary to cite the terms of the application as set out in the Form BC2:
“To the named defendant:
You are hereby given notice that bad character evidence, particulars of which are detailed below, is to be adduced or elicited in these proceedings.
The particulars of that bad character evidence are as follows:
a)	Allegations of previous violence towards the Complainant 	PN as outlined in her statement of the 3/4/06 including where he would become aggressive when she asked him to leave the home, verbal abuse when she did not want to have sex, aggression towards PN and her male friend when he attacked him with a screwdriver, the Defendant’s attempt to enter the house uninvited in the middle of the night, an occasion when he entered the house uninvited and was found with a knife, the Defendant’s rough treatment of her by touching on the head with his knuckles, the Defendant’s assault on the Complainant when the washing machine repairman attended the address.
Allegations of his behaviour towards BT as outlined in her statement of the 20/4/06 and in PN’s statement of 3/3/06 including an allegation that BT awoke one night to find the Defendant crouching beside her bed and stroking her hand, 30/12/05 when the Defendant struck BT.
Crisis Reports also attached.
b)	the grounds for the admission is Section 101(d) it is relevant 	to an important matter in issue between the defendant and 	the prosecution – in that he has a propensity to behave 	inappropriately towards the complainant and towards her 	daughter.  Crown would say this is pertinent evidence which 	the Jury should be able to assess when deciding the question 	of consent.”
Appended to this document was the full 21 page Complainant’s statement of the 3rd April 2006 and (we think) the record of the conviction arising out of the case of a false passport.
13.	At the outset of the proceedings, the trial Judge, Judge Pratt, ruled on the application in the following terms.
“I am quite satisfied that the evidence sought to be adduced by Mr Dawes, save with the one exception of what BT may have done or said, as far as page 8 is concerned and the end of it, the evidence sought to be adduced is admissible under Gateway C, as it is important explanatory evidence.  It is PN giving the factual backdrop behind her expressed lack of consent on the two particular days alleged, 22nd and 23rd March of this year.
It is also, in my judgement, admissible under Gateway D, showing in the defendant a propensity verbally and physically to ride rough shod over any of PN’s views or desires as far as their life together was concerned, and that directly is relevant to the factual backdrop of the breakdown in their relationship, and directly relevant therefore to the question of consent or lack of consent to the acts of sexual intercourse which undoubtedly took place on 22nd and 23rd March respectively of this year.”
14.	Despite the width encompassed by the application and seemingly endorsed by the ruling, the evidence adduced of bad character seems to have been limited to the following:
(a)	An incident in which the Appellant entered the house to find the Complainant entertaining a male friend to lunch.  In annoyance he hit out at the man with a screwdriver and subsequently accused the Complainant of having an affair;
(b)	an occasion when the Appellant used a ladder to enter the Complainant’s house by a window whilst armed with a knife;
(c)	an occasion when the Appellant was violent, seemingly because the Complainant had been in her house with the washing machine repair man.
(d)	an occasion when, according to BT, the Appellant had sought to enter the house by way of the patio door in breach of a stipulation that he should not be in the house when she was there.
15.	When the Defendant gave evidence he addressed all these allegations, mainly by way of denial.
16.	In the course of his summing up the Judge included these four incidents in his narrative of the evidence together with the Appellant’s responses all made in the course of his evidence.  Upon the jury retiring both Counsel raised with the Judge a somewhat diffident enquiry as to whether he should not have given the jury a direction as to how to approach and utilise the evidence adduced before them pursuant to the bad character ruling.  After discussion the Judge decided not to bring the jury back for a further specific direction on this topic.  He concluded that there should have been a direction had the ruling permitted the introduction of previous convictions into evidence but that none was necessary when, as here, the ruling had served simply to add to the evidence as to the history of the relationship.  He said: 
“If you want me to say something as banal as this, that the evidence of all the history that they have heard is only relevant to the question whether or not PN may have consented on either of these occasions, or both of them, then I suppose I can, but it would be pretty banal would it not?” 
In the light of this, Counsel did not press the point and nothing further was said to the jury.
17.	Following subsequent reflection, Miss Smart’s earlier diffidence was replaced by the ground of appeal upon which leave was given: 
“The Judge failed to give a direction as to how the jury should use the bad character evidence thus leaving the jury without guidance as to how this evidence should be used.”
18.	In support of this ground Miss Smart’s submissions amounted to the following:
(a)	In seeking to introduce evidence as to these incidents the Crown had two options.  First, it could have been contended that they formed part of the res gestae, that is, per s.98 Criminal Justice Act 2003, they had “to do with the alleged facts of the offence with which the defendant is charged.”  Second, they could seek admission of such as evidence of bad character that constituted per s.101(1)(c) “important explanatory evidence”; alternatively per s.101(1)(d) that was “relevant to an important matter in issue between the defendant and the prosecution”.
(b)	Had the first such course been taken then Miss Smart could have made respective applications to exclude evidence of each such incident in that the prejudicial effect outweighed any materiality; further or alternatively she could have applied to exclude the evidence as being unfair pursuant to s.78 of the Police and Criminal Evidence Act 1984.  That said, if admitted before the jury as part of the res gestae, no such incident would have any particular status over and above any other incident of the history preceding the alleged offence so as to require specific direction as to proof.
(c)	In the event, however, it was the second course that was taken with the result, so she submits, that the jury should have been confronted with a two stage approach.  Thus, taking each incident in turn, were they sure that the facts as alleged by the Crown had been proved?  If so, did those facts serve either or both s. 101 functions?  The corollary to this submission is that if, with respect to any one incident, they are not satisfied that the facts were as alleged then they should put that matter to one side and place no reliance upon it.
(d)	Miss Smart now submits that the Judge wrongly regarded each of these incidents as in effect part of the res gestae so as not to call for specific directions.  He therefore wrongly distinguished this situation from that where the Crown adduces evidence of previous convictions, where specific directions are required.  In truth, there was no distinction between the instant situation and that which would have arisen had convictions been adduced save, ironically, that the jury’s task would have been simpler in that the fact of a conviction is normally a matter of admission.
(e)	Flowing from the foregoing, the Judge’s failure to give a direction to the jury as their approach to the bad character evidence amounted to a material irregularity imperilling the safety of the conviction.
19.	It is to be observed that in December 2004 the JSB produced a specimen bad character direction, the opening of which is in the following terms :
“In this case you have heard evidence that the defendant has a bad character in the sense that he has .. misconducted himself.  It is important that you should understand why you have heard this evidence and how you may use it.”
	Any such specimen had to be tentative (it was issued before the relevant sections of the Criminal Justice Act 2003 came into force), and further guidance was forthcoming from this court in R v Campbell [2007] EWCA Crim 1472.  The judgment of the court was given by Lord Phillips C.J.  A warning against slavish adherence to specimen direction was given (paragraph 24):
“When evidence of bad character is introduced the jury should be given assistance as to its relevance that is tailored to the facts of the individual case.  Relevance can normally be deduced by application of common sense.  The summing up that assists the jury with the relevance of bad character evidence will accord with common sense and assist them to avoid prejudice that is at odds with it.”
Later, at paragraphs 38 and 43:
“If the jury is told in simple language and with reference, where appropriate to the particular facts of the case, why the bad character evidence may be relevant, this will necessarily encompass the gateway by which the evidence was admitted. …. It is of course highly desirable that the jury should be warned against attaching too much weight to bad character evidence let alone concluding that the defendant is guilty simply because of his bad character.”
20.	On behalf of the prosecution, Mr Dawes drew comfort from the notion of an approach tailored to the particular circumstances of the case and submitted that the Judge was right, or, more forcefully, that given the close relationship the incidents had with the history of the relationship and thus with the res gestae, the absence of a direction could not impugn the safety of the conviction.  Any such direction “would have been so anodyne and a statement of the obvious that it would not have been of any real use to the jury…”  He pointed to the failure to reach a verdict on Count 2 and contended that such was inconsistent with any continuing reliance upon bad character evidence.
21.	For our part we are satisfied that the Judge was in error and that there should have been a bad character direction, encompassing the following elements:
(a)	Identification of the incidents evidence of which had been adduced pursuant to his bad character ruling;
(b)	A direction that, with respect to each incident, the jury should decide whether the facts as alleged by the Crown had been proved so that they were sure of them, that is to the criminal standard of proof;
(c)	A direction that, with respect to any incident not so proved, the evidence should be put aside and accorded no significance;
(d)	A direction as to the potential significance of any incident that had been proved – in this case that the incidents may throw light on the relationship between Complainant and Defendant and thus bear upon the potential for consent on her part to his sexual advances; and
(e)	finally, a warning against necessarily according the incidents any significance if an alternative construction serves to cast doubt upon the construction contended for by the Crown and also against attaching too much weight to this evidence.
22.	In formulating this approach we have drawn a ready parallel between it and the approach to evidence as to lies, that is, the Lucas Direction.  Just as the latter imposes a two stage consideration (are you sure that he did lie?  If so, why did he lie – were the reasons consistent with guilt or were they or may they have been innocent?), we have here in a case not involving previous convictions, a need to make a finding as to the fact of the incident alleged before proceeding to a further stage of assessment of significance in accordance with the burden and standard of proof.
23.	Before parting from this part of the case, we draw attention to the history leading to the Judge’s decision not specifically to direct the jury.  It is to be noted that the original application was unspecific and of a ‘scattershot’ nature invoking the full, long witness statement without condescending to specifics.  The ruling was similarly non-specific.  Not surprisingly, therefore, by the time that the jury retired and minds were directed in a somewhat desultory fashion to such bad character evidence as had been admitted, its precise ambit had been lost, subsumed into the history of the relationship as, in effect, the res gestae, all as the Judge effectively pointed out.  Had the identification of the bad character evidence been from the outset specific, reflecting a conscious justified departure from what would have been inadmissible before the Criminal Justice Act 2003, then minds would more readily have been focussed upon what was required by way of jury direction and the matter would not have been for consideration as an afterthought.
24.	Did the failure to give a bad character direction render the conviction unsafe?  We are satisfied that the answer is ‘Yes’ so that the conviction has to be quashed.
25.	In addition to Ground 2 upon which leave was given, Miss Smart advanced four other grounds, respectively refused by the Single Judge.  Before us she renewed the application for leave on these further grounds, but sensibly confined her oral submissions to Ground 2.  For our part, we have read the various arguments as advanced in her advice and skeleton argument but remain unable to take a view different from that of the Single Judge.  It is unnecessary to add to this judgment anything further in this regard save that we confirm that we have given careful consideration to the subsequent statements of the Complainant; we accept that they evince regret as having initiated a complaint that in the event has served to impair the relationship between the Defendant and C, we do not accept that on careful reading they have any further significance.
26.	There is a renewed application for leave to appeal against sentence.  Since we are allowing the appeal against conviction, this is now otiose.