Neutral Citation Number: [2009] EWCA Crim 498
Case No. 200800566/D3
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
 
Date: Monday, 9th February 2009
 
B e f o r e:

LORD JUSTICE RIX

MR JUSTICE CALVERT SMITH 
 
HIS HONOUR JUDGE PAGET QC 
(Sitting as a Judge of the CACD)
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R E G I N A 

v 

RUPERT GILES WOODHOUSE 
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Mr P Du Feu appeared on behalf of the Appellant 
Miss N Chbat appeared on behalf of the Crown 
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J U D G M E N T 

1.	 LORD JUSTICE RIX:  This appeal raises a short and, if we may say so in the light of what after all is modern legislation, a classic point about the admission of bad character evidence.
2.	It arises out of the trial which took place before His Honour Judge Critchlow in the Crown Court at Reading, at which on 3rd January 2008 the appellant, Rupert Woodhouse, was convicted of a single count of sexual activity with a child.  On 8th February 2008, before the same judge, he was sentenced to a community sentence with a requirement to attend appointments with a probation officer, as directed, for a period of 3 years.  He now appeals against conviction by leave of the Full Court.  
3.	The facts arose out of an occasion at 5.00 pm on 5th November 2006 when the appellant asked for the help of a boy of 13 to assist him to search for a chain and lock that had disappeared from a gate in circumstances where it was thought that the boy might know where the chain was.
4.	The boy was in fact able to find the chain, which was located between two barbed wire fences.  He went under one of the fences and began to pass the chain through to the appellant.  The appellant was then said to have put his arm around the complainant's shoulder, whisper something in his ear and put his hand on the boy's penis over his clothing.  The complainant then ran away to his friend's home and told an adult there what had happened.  The incident was soon after reported to the police.
5.	The prosecution case was that the appellant had intentionally touched the boy's penis and that the touching was sexual.  The Crown wished to rely on evidence from a young man who, back in 1995, when he had been 13 himself, had complained that the appellant had touched his penis and the Crown wished to rely upon that evidence as evidence of a propensity to commit similar offences and to rebut the appellant's defence that the touching in the present case, which was admitted, had been accidental.  In the 1995 case the appellant had admitted the offence and received a police caution.  
6.	The defence case, as we have said, is that the touching had been accidental and had arisen in the following circumstances:  the appellant feared that the chain was swinging and would hit the boy and in grabbing for it had inadvertently touched him.  He had not intended to touch the boy at all, let alone for any sexual motive.
7.	As for the 1995 matter, the appellant accepted in cross‑examination that he had committed the offence for which he had been cautioned.  He said that that incident had resulted from his having separated from his girlfriend at that time and that what had happened was a big mistake.  There was no evidence of any similar bad character or indeed bad character at all between the two incidents.
8.	The 13‑year‑old boy involved in the 1995 incident (now in his mid twenties) gave a witness statement to the police and ultimately gave evidence at trial.  He said that in 1995, when he was 13, he was camping with a friend at the farm where the appellant worked.  They had both been offered a ride by the appellant on a tractor.  They had taken turns.  The tractor had only one seat.  He steered the tractor, sharing the seat with the appellant sitting behind him and operating the pedals.  He said that the appellant had put his hands both on top and underneath his trousers and had grabbed his penis.
9.	The complainant in the present trial gave evidence that at a time when they were recovering the chain the appellant had said to him "come here" and then had put his arm around him, whispered something in his ear and grabbed his penis, without squeezing it and not for very long.  The boy said: "What are you doing?" The appellant said: "Oops".  The boy jumped over the barbed wire fence and ran away to his friend's house where he reported the incident to his friend's mother.  It was dark at the time.  There was also evidence of recent complaint from the friend's mother and from the boy's mother, which was read.
10.	We have already referred to the appellant's acceptance of  the 1995 incident.  He gave evidence, which was not in dispute, that he had severe problems with dyslexia.  In fact we think he had been accompanied at the police station by his father as an appropriate adult.  His evidence was that when the chain was being passed through to him by the boy, it had started to swing and so he had grabbed at it, not wanting it to hit the complainant.  It was in those unintentional circumstances that he had touched the boy.  He denied whispering in the boy's ear and that, in a nutshell, was the evidence at trial.
11.	The present appeal, however, is concerned not so much with the conduct of the trial, and no criticism is made as to the judge's summing‑up, but it is focused upon the judge's ruling to admit the evidence of the 1995 incident under  section 101(1)(d) of the Criminal Justice Act 2003.  That reads as follows: 
"(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."   
Section 101(3) and (4) reads as follows: 
"(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 charged." 
Section 103(1) provides that for the purpose of section 101(1)(d) the matters in issue include "the question whether the defendant has a propensity to commit offences of the kind with which he is charged." 
12.	On behalf of the appellant at trial Mr Du Feu, who represents him again on this appeal, submitted to the judge that a single distant offence, such as the 1995 matter, ending in a caution, was not by itself proper evidence of a propensity.  Moreover, in reliance on section 101(3) and (4) and also on section 78 of the Police and Criminal Evidence Act 1984, Mr Du Feu submitted that the court ought in any event not to admit or should exclude that evidence even if it was relevant to propensity and to an important matter in issue between the defendant and the prosecution.
13.	The judge rejected those submissions.  He ruled that he was quite satisfied that the evidence was capable of amounting to showing a propensity to commit the type of offence for which the offence was charged, the two incidents had similarities and the propensity was relevant to a matter in issue, namely whether the touching was intentional.  There were distinctive features because there was touching of a 13‑year‑old boy's penis and arm put around him.  The complainant, the boy, was clear on what had happened.  He had also made an immediate complaint.  Admission of the evidence would not prevent the appellant from having a fair trial.  The jury would be directed that they should not convict the appellant on the evidence alone, but this was something that they could take into account when considering all the evidence in the case.  As we have observed, there is no complaint about the terms in which the judge ultimately directed the jury on this matter.
14.	In supporting his ground of appeal today Mr Du Feu makes essentially three submissions.  The first is based on the case of R v M [2006] EWCA Crim 3408, [2007] Crim LR 637.  In reliance on that case, Mr Du Feu submits, as he did before the judge, that a single incident, eleven‑and‑a‑half years old was not capable of proving continuing propensity.  In particular, he referred to paragraph 16 of M, where Keene LJ said this: 
"As Mr Saunders' has stressed, it is the combination of only one previous conviction being relied to show propensity and the passage of time since that conviction which must cause concern. There may be cases where the factual circumstances of just one conviction, even as long ago as 20 years earlier, might be relevant to showing propensity, but we would expect such cases to be rare and to be ones where the earlier conviction showed some very special and distinctive feature, such as a predilection on the part of the defendant for a highly unusual form of sexual activity, or some arcane or highly specialised knowledge relevant to the present offence. In cases with less distinctive features in common, one would require some evidence of the propensity manifesting itself during the intervening period in order to render the earlier evidence admissible as evidence of a continuing propensity." 
Mr Du Feu submitted that the present case did not come within Keene LJ's words: "a highly unusual form of sexual activity".
15.	In our judgment, however, we consider that a propensity to touch the penis of a 13‑year‑old boy in this setting, accompanied by the other feature of putting an arm around the boy, is a matter, even though arising on only one occasion, at some distance, which the jury could reasonably consider to be evidence of propensity which would assist them in the issue in the case here of accidental touching.  Indeed, such a case is not unfamiliar to the common law even before the 2003 Act.
16.	Mr Du Feu's second and third submissions were in support of his submission that it would nevertheless be unfair in the circumstances for the evidence of the previous caution to go before the jury.  Under these second and third submissions Mr Du Feu stressed that all the paperwork had been lost in respect of the previous caution, so that it was very difficult at trial for a form of admission to be agreed.  Moreover, the appellant suffered from severe dyslexia and a lack of long‑term memory.  Even though as it turned out, the appellant was able in the course of cross‑examination to recall more of the incident and to give the evidence about it to which we have referred, at the earlier time when the admission of this evidence was being considered, Mr Du Feu really lacked assistance from either the appellant or indeed his parents as to the circumstances of the previous incident.  In those circumstances, despite an opportunity to consider the witness statement given by the man involved in the 1995 incident, the appellant was put in the very disadvantaged situation where he was unable, by agreeing some form of written admission, to prevent evidence of the 1995 incident being led by the Crown in the form of calling the man who had been involved, as a boy, in that previous incident.  In that connection Mr Du Feu draws to our attention that in R v Hanson [2005] 2 Cr App R 21, at paragraph 17, Rose LJ (Vice‑President CACD) had observed that it ought to be very rare indeed for it to be necessary for a judge at trial to hear evidence before ruling on admissibility under the Act and that he contemplated that applications under the Act would be dealt with by admission.  Moreover, in R v Ainscough 170 JP 517, referring to R v Humphris 169 JP 441, both noted at Archbold 2009 at paragraph 13 ‑ 66, this court referred to a need for caution to ensure that a trial did not give rise to satellite issues as to what had happened in a previous trial.
17.	In our judgment, these are matters which the judge was rightly addressed on, as he was, but that it was very much a matter for his consideration as to the conclusion it led him to for the purposes of section 101(3) and (4) and section 78 of the 1984 Act.  It is established that although a judge's view of such matters can be reconsidered in this court, which is entitled to say that the exercise of the judge's discretion for those purposes is plainly wrong, nevertheless that is something which this court will, save in that plain case, be reluctant to do.  It is true that, as we understand it, the admission of live evidence about the 1995 incident is, as we would understand it, a rare matter.  But the fact is that the appellant and his legal advisers did have the opportunity to consider their attitude to the Crown's application by reference to the witness statement about the 1995 incident, which was before them and, in this context, it is also to be observed that in that same paragraph 17 of Hanson to which we have already referred, Rose LJ referred not only to the need for transparency and frankness in the way in which the Crown sets out in its application the matters that they wish to rely upon and for which purpose but that there is also "a similar obligation of frankness upon the defendant".
18.	Having considered all these circumstances and Mr Du Feu's submissions carefully, we consider that this is not a case in which this court can say that the judge erred so as to give this court the right to revisit the decision that he took.  He was entitled in his judgment to form the conclusion that he did about the fairness of the trial and his ability, by means of his directions, to ensure that all the matters were put fairly to the jury.  As we have said, there is no complaint about those directions of the judge.  It follows that this appeal must be dismissed.   
19.	 LORD JUSTICE RIX:  The appellant did have savings and he was required to make contributions.
20.	MR DU FEU:  That may well be right.
21.	 LORD JUSTICE RIX:  We have a recovery of defence costs order report, I do not know if you have a copy of it.
22.	MR DU FEU:  I have not my Lord.
23.	 LORD JUSTICE RIX:  It states that the appellant has an income of annual income of some £20,000, and has savings of nearly twice that.  Would you like that? 
24.	MR DU FEU:  I do not dispute that, I recall he was prudent with his money.
25.	 LORD JUSTICE RIX:  Would you like to make a submission as to why a recovery of costs order could not be made in this case?
26.	MR DU FEU:  The principle of course the legal aid should not bear the burden of my representation of him here today.  I can tell the court that he was prepared to fund privately to the point of the application and renewed application before the full court.  Legal aid was granted at that point. In the circumstances of income and the failure of his appeal, then it may be one of those rare cases a defence costs order to, as it were, for him to pay the legal aid costs follows.  I do not think I am in a position to dispute that.
27.	 LORD JUSTICE RIX:  Have you any submission to make?
28.	MISS CHBAT:  No my Lord.  
(The Bench Conferred) 
29.	 LORD JUSTICE RIX:  We will make a recovery of defence costs order but limited to your fees Mr Du Feu.
30.	MR DU FEU:  I am most grateful, thank you.