Neutral Citation Number: [2010] EWCA Crim 2614
Case No: 201000790D4
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Friday, 29 October 2010
 
B e f o r e:

LORD JUSTICE ELIAS 

MR JUSTICE MADDISON 
 
HIS HONOUR JUDGE MORRIS QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
 R E G I N A 

v 

KIM TOLLADY 
- - - - - - - - - - - - - - - - - - - - -
 Computer Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
165 Fleet Street  London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 0207 404 1424 
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

Mr R Furlong appeared on behalf of the Appellant
Miss A Barker appeared on behalf of the Crown 
- - - - - - - - - - - - - - - - - - - - -
 J U D G M E N T 

1.	LORD JUSTICE ELIAS:  On January 19 2010 in the Crown Court at Snaresbrook before HHJ Kamill, the appellant was convicted of affray.  She was sentenced to 28 weeks' imprisonment, suspended for a period of 24 months, with a requirement that she carry out 140 hours of unpaid work within the next 12 months.  She was also ordered to pay £150 towards the costs of the prosecution.
2.	No evidence was offered in relation to a charge of assaulting a police constable in the execution of his duty and that charge was dismissed.  
3.	There were two co‑accused, her son Benjamin Tollady and another relative Kathleen Tollady, who also were convicted of particular counts arising out of the same incident.  It is not necessary to say any more about them.  
4.	She appeals against conviction by leave of the single judge.  The background is as follows.  On 18 April 2009, a party was held at the Warrant Officer public house in Walthamstow, London to celebrate the birthday of the appellant's daughter.  Shortly after midnight police officers were called to the public house following a report of somebody interfering with a vehicle.  When they arrived, they saw a group of males surrounding another male who had a head injury.  He was on the floor.  They tried to defuse the situation, but the group of males were aggressive towards them, and Benjamin Tollady punched one of the officers.  
5.	Shortly afterwards, police reinforcements arrived.  By that time between 50 and 100 people were seen milling outside the public house and the crowd was becoming increasingly hostile.  The police officers saw a second injured male, who was sitting on a picnic bench outside the public house.  Two of the officers attempted to administer first aid, but they were distracted by a group of females.  Other officers asked the females to move back as they were becoming increasingly aggressive and abusive.  As a result of the behaviour of this group, PC Langdon was slapped in the face, causing him to fall backwards, and PC Simpson was pushed.  It was alleged that that was by the appellant.  The appellant was then sprayed with CS gas and restrained.  She was arrested for assaulting a police officer and disorderly behaviour.  
6.	She was taken to the police station, where she was interviewed.  She denied being involved in the affray and said she had not pushed, slapped or assaulted anyone.  Her case was that the police officers had fabricated their evidence in order to justify their use of CS gas.  She had been assisting one of the injured men when the police arrived.  She did refuse to move when they asked her to do so, but that was because she was providing this first aid to the injured male.  In those circumstances, the police use of CS gas was wholly inappropriate.  
7.	The prosecution case was joint enterprise, that the appellant was part of a rioting crowd and that she had assaulted these police officers in the course of that riot, and the defence case, as we have indicated, was denial and that the police had fabricated the evidence against her in order to justify the use of the CS gas.
8.	There were a number of witnesses who gave conflicting evidence about the involvement of the appellant.  There was independent evidence, and it was not disputed, that there was this mini‑riot, with officers surrounded by around 50 males at least.  
9.	Eight police officers gave evidence at the trial, either orally or their statements were read out.  Four described a woman committing an assault in the manner alleged by the prosecution.  One officer said he saw two females assisting an injured male, which of course would be consistent with the appellant's case.  Three other witnesses lent some support to her case.  One, whose house overlooked the public house, said she saw a blond woman helping a male on the ground.  Whether that was the appellant is not clear.  Evidence was also given by a friend of the appellant and by his sister which supported her evidence.  
10.	In the course of the hearing, a prior conviction was admitted in evidence.  It was in fact adduced by the defendant in the following circumstances.  One of the officers, WPC Rees, gave evidence about the incident and, amongst other matters, she indicated that she had provided some care to the appellant after the release of the CS gas.  This was challenged by the appellant through her counsel.  It was put to the officer in cross‑examination that she had been hostile to the appellant because she had previously arrested the appellant in an incident in 2005.  Indeed, she had referred to that incident when the appellant was on the ground, having been secured following the release of the CS gas.  
11.	The appellant then dealt with this incident in her evidence in chief and she was cross‑examined about it, and in particular about her propensity to lose her temper.
12.	  This earlier offence had occurred in 2005, when the appellant had been arrested for driving with excess alcohol, and then, during the course of that arrest, had been arrested also for an offence under section 5 of the Public Order Act.  WPC Rees had said that on that occasion the appellant had become aggressive and violent.  The appellant told the jury that the police officer had misrepresented the position.  She did not deny that she did get upset and abusive on the previous occasion, but this was only because the police would not allow her to comfort her five year old daughter, who had been left crying in the back of the car.  
13.	Before speeches began the judge raised with counsel various issues of law with which she proposed to deal.  It seems from the transcript, and both counsel before us have accepted, that there was certainly no discussion about the question of whether this earlier conviction should be referred to in the summing up.  Counsel for the appellant accepted that it may be that at some stage it was mentioned in passing, but if so, there was no proper discussion about it.  The judge did not raise it for discussion and neither did counsel, no doubt because various other matters were attracting their attention.  It simply slipped their collective minds.  
14.	However, the judge did then deal with the conviction in her summing up.  She told the jury that they could, if they thought it appropriate, have regard to this conviction, both in assessing the credibility of the appellant and in considering whether she may have had a propensity to commit an act of the kind for which she was before the court.  
15.	The terms of the summing up have been challenged.  In the circumstances, it is desirable to set out precisely what the judge said:  
"Now, you have heard in this case ‑‑ a completely different topic ‑‑ that Kim has criminal convictions and it is important that you should understand why you have heard that evidence and how you should use it.  As I will explain in more detail, you must not convict her only because she has a bad character, but you have heard about it because she wanted you to know.  She, herself, brought it out through Mr Furlong. 
Now, if you think it right you can take it into account when deciding whether or not the defendant's evidence to you was truthful.  A person with a bad character might be less likely to tell the truth, but it does not follow that she is incapable of telling the truth.  You decide to what extent, if at all, her character helps you when judging her evidence and if you think it right, you may also take it into account in deciding whether or not she actually committed this offence with which she is now charged.  
You heard from WPC Rees. She told you how she behaved when she was breathalyzed in 2005 and she remembered that behaviour and said that she was not surprised to find, here, she is, shouting and so on, behaving as she was outside the public house.  
Now, you know that Kim pleaded guilty into 2005 and that was disorderly behaviour, a public order offence.  She now tells you that WPC Rees is absolutely wrong about what happened in 2005.  In fact, all she was concerned with was her crying five year‑old, Molly, who was in the back of the car and, indeed, she goes on, in fact, it was the police who misbehaved towards her, as, she says, they have on this occasion.  
Now, the two offences are both public order offences and both relate to her behaviour.  To that extent they are similar, although, of course, the circumstances are utterly different.  You must decide to what extent, if at all, her disorderly behaviour in 2005, which she admitted to a court, helps you when you are considering whether or not she was guilty of this offence in 2009, four years on.  Bear in mind that that bad character cannot by itself prove she is guilty and it would be wrong to jump to the conclusion that she is guilty just because of it.  After all, she denies that she was actually guilty of the 2005 offence, although she pleaded guilty at the time and she, of course, denies this."  
16.	Counsel runs three grounds of appeal.  The first is that the judge ought to have given him an opportunity to comment on whether it was appropriate to raise this matter before the jury at all, and if so, in what terms.  He observed that a consequence of her not having done so was that he did not deal with this issue in his closing speech.  
17.	Second, he submits that when the judge dealt with the question of propensity, she did so in an unsatisfactory way.  He accepts that there were certain similarities between the earlier offence and the one before the court.  There was the loss of temper and aggressive behaviour towards police officers on both occasions, but he says that the earlier incident did not involve any violence, whereas that was an element of the present charge.  
18.	Third, he submits that whilst in principle the earlier conviction could properly constitute the basis of a direction on the propensity limb, the judge erred in law in telling the jury that they could have regard to it if they thought it appropriate when assessing the appellant's credibility. 
19.	It is plainly desirable in a criminal trial of this nature that the directions are discussed with counsel before closing speeches, and that is of course common form.  This was done here.  It was an unfortunate oversight by all involved that the particular issue concerning the earlier conviction was not specifically raised and dealt with.  That was highly unsatisfactory, but it does not of itself involve an error of law.  
20.	Counsel submitted that he had not anticipated that anything would be said to the jury about it, and had he known that it would, he would have addressed it in his closing speech.  It was not, in our view, reasonable to believe that nothing would be said about it.  The jury knew of the conviction, and it would have been most unsatisfactory simply to leave it in the air for them to make of it what they thought appropriate.  In our judgment, it was incumbent on the judge to address this issue directly in the summing up, even if only to tell the jury, if this was appropriate, that they should wholly ignore it.  Furthermore, counsel was not prevented from dealing with this matter in closing submissions.  Indeed, counsel for the prosecution referred to the earlier conviction in order to show that the appellant would lose control in certain circumstances.  We do not therefore consider that there is any force in this first ground.
21.	Nor are we persuaded that there is any merit in the second ground.  The way in which the judge summed up this matter to the jury was, as is required in bad character directions of this kind, very cautious.  The judge might indeed have drawn to the jury's attention the fact that there was no violence involved on the earlier occasion but there was no error of law resulting from the failure to do so.  The judge reminded the jury, in our view quite fairly, that both offences were public order offences relating to her behaviour, and it would have been obvious to the jury that both involved her behaviour with police officers, and both involved aggressive behaviour towards them.  
22.	The judge gave the important caveat that the bad character did not of itself prove guilt, and we think as far as the propensity limb is concerned, there is no legitimate criticism of the way in which that aspect of the bad character direction was left to the jury.
23.	The one area which does cause us some concern was in relation to the appellant's final ground, which is his contention that the judge should not have left to the jury the possibility that they might take into account the earlier conviction when determining whether or not the witness was telling the truth.  It is well established that once bad character evidence has been admitted under one of the gateways in section 101 of the Criminal Justice Act 2003, then the use to which it is put depends upon the matters to which it is relevant: see the observations of Lord Woolf CJ in R v Highton {2005]1WLR 3472, para.10. Here the evidence came in under section 101(1)(b) of the Criminal Justice Act 2003 i.e. it was introduced by the defendant himself.  
24.	A question which arises is whether this conviction could properly be said to be relevant to the appellant’s credibility.  In the case of Hanson [2005] 2 Cr App R 21, Rose LJ considered the circumstances in which it might be appropriate to refer to previous convictions to demonstrate a propensity to untruthfulness.  He was dealing with circumstances when convictions should be admitted under section 101(1)(d)when read with the related provision in section 103..  At paragraph 13 he said this: 
"13.	 As to propensity to untruthfulness, this, as it seems to us, is not the same as propensity to dishonesty.  It is to be assumed, bearing in mind the frequency with which the words honest and dishonest appear in the criminal law, that Parliament deliberately chose the word "untruthful" to convey a different meaning, reflecting a defendant's account of his behaviour, or lies told when committing an offence.  Previous convictions, whether for offences of dishonesty or otherwise, are therefore only likely to be capable of showing a propensity to be untruthful where, in the present case, truthfulness is an issue and, in the earlier case, either there was a plea of not guilty and the defendant gave an account, on arrest, in interview, or in evidence, which the jury must have disbelieved, or the way in which the offence was committed shows a propensity for untruthfulness, for example, by the making of false representations.  The observations made above in paragraph 9 as to the number of convictions apply equally here."
25.	Hanson was concerned with a situation where previous convictions may be considered by a jury when testing the credibility of a defendant's evidence by focusing on whether there is a propensity for untruthfulness. More general evidence of bad character would seem to be relevant to the a defendant’s creditworthiness.  Thus it is well established that in contexts other than gateway (d), such as where a defendant challenges the character of a prosecution witness or where an issue arises between a defendant and a co‑defendant (that is where gateways at (g) and (e) of section 101(1) are involved), this court has taken a broader view as to the nature of the convictions which may be adduced in order to help establish lack of credibility: see eg Stephenson [2006] EWCA Crim 2325 and Singh [2007]EWCA Crim 2140. In principle reliance can be placed on any convictions whether or not falling within the Hanson criteria. That is probably the situation here, not least because the appellant was introducing this evidence in effect to challenge the character of a prosecution witness.  But even assuming that the evidence was in principle admissible for the purpose judging the credibility of the witness, even though it fell outside the categories identified by Rose LJ in paragraph 13 of Hanson, in our judgment it was not appropriate for the judge to have allowed this conviction to be used in that way in the circumstances of this case.  
26.	If this material had not been before the court at the instigation of the defendant, we do not think it would have been right for the judge to have admitted this single past conviction, some five years old, solely in relation to credibility.  Nor do we think that it should have been used in that way even though introduced under para.(b). It was not sufficiently material to the issue of credibility. However, we are satisfied that in the circumstances of this case, albeit that the judge should not have referred to the credibility limb in her summing up on bad character, it had no adverse consequences as far as this defendant was concerned.  It did not render her conviction unsafe.
27.	The earlier conviction, following the guilty plea, had been drawn to the attention of the jury by the defendant herself, and once it was before them and was relevant to the issue of propensity, then it was likely in practice to influence the jury with respect to the issue of credibility also.  The point was made by Lord Phillips when he was Lord Chief Justice in the case of Campbell [2007] 1 WLR 2798, when he said this: 
"In considering the inference to be drawn from bad character the courts have in the past drawn a distinction between propensity to offend and credibility. This distinction is usually unrealistic. If the jury learn that a defendant has shown a propensity to commit criminal acts they may well at one and the same time conclude that it is more likely that he is guilty and that he is less likely to be telling the truth when he says that he is not."
28.	Accordingly, although we do not think that it was appropriate for the judge specifically to have identified the earlier conviction as being potentially relevant to an assessment of the appellant’s credibility, she was entitled to deal with it in the context of propensity and the potential link with credibility is obvious.  Accordingly, we are satisfied, for the reasons we have given, that no prejudice would have been suffered by the defendant by this error, that the verdict was safe, and therefore the appeal fails.