Darren Kidd [2019] EWCA Crim 1439

Darren Imra Kidd v Regina [2019] EWCA Crim 1439 was an appeal to the Court of Appeal (Criminal Division) comprising Lord Justice Haddon-Cave, Mrs Justice Farbey DBE and Her Honour Judge Molyneux, in which the applicant’s renewed application for an extension of time and leave to appeal against conviction was refused.

On 5 January 2017 in the Crown Court at Mold, Mr Kidd was convicted of assault occasioning actual bodily harm and sentenced to eighteen months’ imprisonment. A restraining order was imposed for five years. The single judge had refused his application for leave to appeal.

In June 2016 Mr Kidd was a lodger at 35 Pen-y-Glyn. His landlord, Mr Jones, had ongoing issues with the neighbours at number 33 and was subject to a Protection from Harassment Order prohibiting him from talking or shouting loudly. On 15 June 2016 at around 6 pm Mr Jones was arrested by the police for standing outside number 33 shouting and swearing in breach of that order. Tensions escalated and Mr Kidd began shouting outside number 33. The police moved him on but he returned with another man and became abusive towards a resident of number 33, the partner of the complainant. When an argument developed, the complainant stood between Mr Kidd and his own partner to protect her. Mr Kidd struck the complainant in the face, hitting him on the right eye with a metal object believed to be a chain with keys attached. He struck the complainant again by punching him on the nose, causing it to bleed. A scuffle followed in which another man joined to assist the complainant. By the end of the incident Mr Kidd had sustained a head injury requiring hospital treatment, while the complainant had suffered ligament damage to his ankle, an internal split to his nose, and a cut below his right eye which required gluing and stitching.

Mr Kidd gave evidence at trial. He denied having been verbally abusive and claimed he had acted in self-defence. He said he did not have a dog lead or house keys and that he had got into a car ready to leave but was dragged out by the complainant. The jury convicted him.

The single ground of appeal concerned the admission of bad character evidence. On 4 November 2016 the prosecution gave notice of intention to adduce evidence of Mr Kidd’s previous convictions. He had thirty-one convictions for seventy-four offences. The prosecution sought to admit evidence of two offences of common assault dated 10 January 2012 and one offence of common assault dated 27 May 2014 under section 101(1)(d) of the Criminal Justice Act 2003 as relevant to guilt. All three offences had been committed within the context of a relationship. Trial counsel provided observations stating that she had discussed the bad character application in conference with Mr Kidd prior to trial on 4 January but was not aware that the 2014 conviction had been quashed. Mr Kidd did not inform her of that fact. On 4 January 2017 she indicated to the court that the bad character application was not opposed. She stated in her observations that she would not have agreed to the application had she known the 2014 conviction had been quashed.

The evidence was admitted and questioning was permitted. In cross-examination Mr Kidd was challenged about having told the police he was no stranger to violence. He was asked whether twice in the previous four and a half years he had attacked others in violence and whether he had a bad temper. He denied the suggestions. In summing up, the judge directed the jury that Mr Kidd had two criminal convictions for common assault occurring two and four years previously. She explained that the convictions had been adduced because they might be relevant to who was the aggressor. The Crown contended that Mr Kidd had a propensity or tendency to do what was alleged. The judge directed the jury to decide whether the convictions showed such a tendency, having regard to the number of convictions, the type of offences, and when they occurred. She warned them that if they concluded the convictions did not indicate a tendency they should disregard them, that they must not jump to the conclusion that because he had done it before he must have done it now, and that they could only convict if sure on all the evidence.

The respondent accepted that the PNC record was inaccurate and that the 2014 conviction had been quashed. The respondent also accepted that the 2012 conviction was for two offences of common assault against Mr Kidd’s partner and her son arising from a single incident and that this would not on its own be evidence of propensity. The respondent submitted that the 2012 conviction and other offences were admissible under section 101(1)(g) because Mr Kidd had made an attack on the character of the prosecution witnesses by asserting he had been the victim of an unprovoked attack. The respondent accepted that the jury would have been directed differently had the evidence been admitted under this provision.

The Court rejected the respondent’s argument under section 101(1)(g), holding that Mr Kidd was entitled to raise self-defence without risking admission of his previous convictions and that the direction would have been very different. The Court nevertheless proceeded to analyse the safety of the conviction on the assumption that the evidence was wrongly admitted. The Court noted several factors. First, there was strong evidence against Mr Kidd. In addition to the complainant, three eyewitnesses related to him gave evidence that Mr Kidd was the aggressor. An independent witness gave evidence that she had seen Mr Kidd swing a lanyard with keys on it at the complainant at the outset, and although she could not say who dealt the first blow she had seen Mr Kidd approach swinging the keys aggressively. Secondly, Mr Kidd gave an account to the police containing inconsistencies, though he explained in cross-examination that he was confused at the time of interview. Thirdly, the complainant’s injuries were consistent with the witness accounts. Fourthly, the bad character evidence was a small part of the case and the judge fully and carefully directed the jury on the extent to which it could help them. Fifthly, Mr Kidd did not inform his trial counsel or anyone at trial that his 2014 conviction had been quashed, did not raise the issue as a potential appeal point with trial counsel, and did not raise it until April 2017 when he instructed new representatives.

The Court initially considered the application for an extension of time to be hopeless but reconsidered following focused submissions from counsel Mr Michael Sharpe. The Court concluded that an extension of time was appropriate because what had been submitted was arguable. However, the Court agreed with the single judge that although the evidence was admitted in error and the jury were directed on propensity based on that error, the conviction was not rendered unsafe. The Court was satisfied that the evidence was overwhelming and that the conviction should stand. In short, the Court extended time but refused the application for leave to appeal on the basis that despite the wrongful admission of bad character evidence, the strength of the prosecution case ensured the conviction remained safe.