REGINA v Clarke, England and Wales Court of Appeal (Criminal Division), Judgment, Law, casemine.com

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Attorney(S)

Mr KA Volz appeared on behalf of the Appellant
Mr J Knight appeared on behalf of the Crown

Judges

LORD JUSTICE ELIAS
MR JUSTICE HICKINBOTTOM
MR JUSTICE MACKAY

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REGINA v. Clarke

Smart Summary

Factual and Procedural Background

On 10 September 2010, the appellant was convicted by a judge and jury at Inner London Crown Court on six counts involving indecent assault and sexual activity with a child. The offences concerned assaults on two sisters, occurring over several years while the appellant lived with their mother. The appellant denied all allegations, suggesting the complainants fabricated their accounts out of resentment due to his past conduct, including a prior imprisonment for drug offences. The appellant appealed against conviction by leave of a single judge.

Legal Issues Presented

Whether the trial judge was correct to admit the appellant's previous convictions as evidence of bad character under section 101(1)(g) of the Criminal Justice Act 2003, given the appellant's attack on the complainant's character.
Whether the admission of these convictions was unfairly prejudicial, particularly considering their age and nature, and thus should have been excluded under section 101(3).
Whether the judge's directions to the jury regarding the use of the appellant's previous convictions were adequate and appropriate.

Arguments of the Parties

Appellant's Arguments

The admission of the appellant's previous convictions was improper as they did not demonstrate any propensity to commit the offences charged or to be untruthful.
The convictions were unrelated to sexual offences and therefore irrelevant to credibility.
The timing of the complaints and the appellant’s prior convictions were used to unfairly prejudice the jury against him.
The age of the convictions, some over 20 years old, made their admission unfair and prejudicial.
The judge failed to properly direct the jury that they should not convict based solely on the appellant's previous convictions.

Court's Response to Arguments

The court distinguished between the admissibility tests under section 101(1)(d) and (g), holding that the appellant’s attack on the complainant's character justified admission under subsection (g).
Previous convictions are relevant to allow the jury to assess the credibility of the appellant when he attacks another person's character.
The judge properly exercised discretion, considering the recency of some convictions and the nature of the defence.
The directions to the jury were sufficient to prevent improper inferences from the convictions, emphasizing they did not prove guilt of the charged offences.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hanson [2005] EWCA Crim 824	Admissibility of bad character evidence under section 101(1)(d) relating to propensity to untruthfulness.	Distinguished from section 101(1)(g) cases; restrictive approach to admissibility under (d) does not apply to (g).
Chrysostomou [2010] EWCA Crim 1403	Improper admission of bad character evidence used solely to blacken general character.	Court held that evidence admitted under (g) may be broader; the appellant’s case was distinguished from Chrysostomou facts.
Jenkins (1945) 31 Cr App R 1	Fairness in allowing jury to assess defendant’s character when he attacks witness character.	Supported principle that jury should consider defendant’s character when credibility is contested.
Selvey v DPP [1970] AC 304	Approval of the principle allowing jury to assess credibility of defendant and witnesses.	Reinforced the fairness in admitting bad character evidence when defendant attacks witness character.
Singh [2007] EWCA Crim 2140	Rationale for admitting bad character evidence under section 101(1)(g) to assess credibility.	Confirmed that bad character evidence assists jury in judging credibility when defendant attacks complainant.
George [2006] EWCA Crim 1652; Bahanda [2007] EWCA Crim 2929; Lamaletie and Royce [2008] EWCA Crim 314	Application of section 101(1)(g) allowing bad character evidence for credibility assessment.	Supported the approach that all convictions may be relevant to credibility under subsection (g).
R v Highton [2005] EWCA Crim 1985	Use of admitted bad character evidence for any relevant purpose.	Confirmed that once admitted, bad character evidence can be used for any relevant purpose by the jury.
Dhooper [2008] EWCA Crim 2892	Consideration of age and relevance of bad character evidence under section 101(1)(d).	Distinguished as involving gateway (d) and propensity, not credibility under (g).
Hearne [2009] EWCA Crim 103	Continuity of principles from Criminal Evidence Act to current law on bad character evidence.	Confirmed the consistency of approach to admitting bad character evidence under section 101(1)(g).

Court's Reasoning and Analysis

The court began by outlining the statutory framework governing the admissibility of bad character evidence under the Criminal Justice Act 2003. It emphasized the distinction between gateway (g), where the defendant attacks another person's character, and gateway (d), which concerns propensity. The court held that the appellant’s defence, which alleged that one complainant persuaded the other to lie, amounted to an attack on the complainant’s character, thereby justifying admission of the appellant’s previous convictions under gateway (g).

The court rejected the appellant’s argument that the convictions were irrelevant because they did not involve sexual offences or demonstrate untruthfulness in the manner required under gateway (d). It reasoned that under gateway (g), a wider range of convictions may be relevant to allow the jury to compare the credibility of the defendant and the complainants.

The court acknowledged the age of some convictions but distinguished cases where old convictions might be unfairly prejudicial if used to show propensity. Here, the presence of a recent conviction for drug offences already known to the jury justified revealing the full range of the appellant’s offending to provide a balanced picture.

The judge’s directions to the jury were examined and found adequate, as they clarified that the convictions did not prove guilt of the charged offences and cautioned against inferring guilt solely from the appellant’s record. Although the judge did not explicitly instruct the jury on using the convictions to assess credibility, the court found this implicit in the summing-up and held that no prejudice arose from this omission.

In sum, the court found that the trial judge properly exercised discretion, applied correct legal principles, and that the admission of the appellant’s previous convictions was lawful and fair in the circumstances.

Holding and Implications

The court DISMISSED the appellant's appeal against conviction.

The decision confirms that under section 101(1)(g) of the Criminal Justice Act 2003, where a defendant attacks another person's character, it is lawful and fair to admit evidence of the defendant’s previous convictions to assist the jury in assessing credibility. The ruling clarifies that this admission is broader than under gateway (d) and does not require the convictions to demonstrate propensity for untruthfulness in the strict sense. The court emphasized the importance of judicial discretion and adequate jury directions to mitigate prejudice. No new precedent was set beyond reaffirming existing principles and their proper application.