Paul Growcoot [2018] EWCA Crim 3087

**Paul Growcoot [2018] EWCA Crim 3087** concerned an appeal against conviction following trial for possession of an offensive weapon (count 1) and wounding with intent (count 2). On 4 May 2017 in the Crown Court at Bradford before His Honour Hatton QC, Mr Growcoot was convicted on both counts and sentenced to ten years’ imprisonment on count 2 with no separate penalty on count 1. The Court of Appeal (Lord Justice Lindblom, Mrs Justice McGowan DBE and Mrs Justice Cheema-Grubb DBE) allowed the appeal, quashed the convictions and ordered a retrial.

The prosecution case was that on 6 August 2016 Mr Growcoot visited the home of David Bailey and his partner Danielle, where Charles Collins was staying. After an argument developed between Mr Growcoot and Mr Collins, the appellant left. In the early hours of 7 August he returned and, it was alleged, struck Mr Collins several times to the head and upper body with a baseball bat or pickaxe handle. Mr Collins was taken to hospital with swelling to his head, two small wounds requiring sutures and a five-centimetre linear wound requiring eleven staples. When arrested that afternoon, Mr Growcoot asked unprompted how Mr Collins was and stated that when he left him that morning he did not think he would need an ambulance. He told police he had acted in self-defence.

The defence case was that the appellant had not returned armed but had picked up a stick or wooden pole from the garden. He had done so knowing Mr Collins’ character and had struck him but without intent to wound, believing himself to be acting in lawful self-defence. Mr Collins gave evidence that Mr Growcoot had returned with a baseball bat and struck him multiple times, causing him to fall and sustaining the attack on the ground. Mr Bailey confirmed the appellant had attacked Mr Collins with a baseball bat or pickaxe handle. Mr Growcoot testified that Mr Collins had been drunk earlier and aggressive, that he had returned because he was upset and confused, that Mr Collins rushed at him with murderous intent, and that he picked up a stick and struck him three or four times in fear for his life.

During trial the judge made two rulings on bad character. First, he ruled inadmissible Mr Collins’ 2007 convictions for assault occasioning actual bodily harm, wounding and sexual assault, which arose from an incident in which Mr Collins and another man had etched a noughts and crosses board on a sleeping woman’s back and sexually assaulted her. It appeared the judge may not have been made fully aware of the gravity of that offending. Second, the judge refused the prosecution’s application to adduce Mr Growcoot’s previous convictions, including convictions in Italy for threatening behaviour. He observed the matter was borderline but refused the application in fairness to maintain equality of arms.

The single judge granted leave to appeal only on the ground that the judge erred in refusing to admit Mr Collins’ previous convictions. The appellant had been aware of Mr Collins’ criminal history, having mentioned it in his police interview. In the edited version of interview placed before the jury, the appellant said he was worried and scared for his life when Mr Collins came charging out. A portion removed from the jury’s version recorded the appellant saying he was worried because he knew Mr Collins was a hardened criminal who had served time in both the United States and the United Kingdom. In his defence statement the appellant stated he had acted in self-defence and stood by his interview account.

Mr Simon Hustler, appearing for the appellant, submitted that Mr Collins’ previous convictions ought to have been admitted under section 100(1)(a) and (b) of the Criminal Justice Act 2003. The convictions were important explanatory evidence because they explained why the appellant reacted as he did, and they had substantive probative value in relation to self-defence, which was the central issue. He argued that the judge had wrongly balanced the appellant’s convictions against Mr Collins’ and failed to consider that the appellant’s knowledge of Mr Collins’ violent offending was relevant evidence operating on his mind at the time.

Mr Alex Chalk for the Crown submitted that the judge’s decision was a proper exercise of discretion. He emphasised that the appellant’s case that Mr Collins was violent and aggressive was already before the jury through the interview account, including that Mr Collins had punched him without warning and spat in his face. There was no evidence the details of Mr Collins’ 2007 conviction were known to the appellant at the time or that he believed the boasts about serving sentences. Even if he did, there was no indication he understood them to be for violent offences. The defence statement had not made clear that the specific details of the previous conviction were actively playing on the appellant’s mind. The defence of self-defence was ambitious given the appellant had admitted returning to remonstrate with Mr Collins after feeling humiliated and had struck him on the head when on the ground. The judge had also refused to admit the appellant’s own previous convictions, and maintaining equality of arms was justified.

The Court of Appeal rejected the Crown’s submissions. Lord Justice Lindblom, giving the judgment of the court, held that there was a substantial conflict between prosecution and defence as to how the violence began and developed. These issues were central to the defence of self-defence. The relevance of Mr Collins’ convictions to that defence had been foreshadowed in the defence statement, in which the appellant said he would adhere to his interview account, which included clear reference to his knowledge of Mr Collins’ predisposition to violence and imprisonment for what in context appeared to be violent offending. The judge’s decision not to admit the evidence was incorrect. His ruling was not reasoned beyond adopting the prosecution submission that the convictions did not engage section 100(1)(a) or (b) and that the jury would not find it impossible or difficult to understand the evidence without them. The convictions were of substantial probative value in respect of which man had been the aggressor and, if Mr Collins was or might have been the aggressor, whether the violence used by the appellant went beyond what was reasonable in light of his knowledge of Mr Collins’ previous violent offending. The error was not corrected by the judge’s ruling on the appellant’s convictions, explicitly on the basis of maintaining equality of arms, even if those convictions were properly admissible. The ruling was incorrect and the detriment to the fairness of the trial was not remedied. It was enough to found the application that the appellant had clearly demonstrated in interview that he was aware of Mr Collins’ violent previous offending; the precise detail and degree of his awareness did not significantly affect the analysis.

The court considered whether the conviction could nevertheless be upheld as not unsafe. Considerations in favour included that the appellant had told the jury Mr Collins was intimidating and violent and that he feared for his life, that the judge had refused to admit the appellant’s previous convictions to maintain equality of arms, and that the basic facts including that the appellant had left and chosen to return to remonstrate with Mr Collins were not in dispute. The court was not persuaded. The judge did not remind the jury of the appellant’s evidence that Mr Collins could be intimidating and violent. The non-admission of the appellant’s bad character was of limited if any significance and could not overcome the harm done by non-admission of Mr Collins’ bad character, not least given the evident disparity and relative seriousness of their respective convictions for violence. The circumstances of the incident, even on the prosecution account, might have been regarded by a properly directed jury as not necessarily inconsistent with reasonable self-defence. The conviction was unsafe.

In short, the Court of Appeal allowed the appeal on the ground that the judge wrongly refused to admit evidence of the complainant’s previous convictions for violent offending, which had substantial probative value in relation to self-defence and whose non-admission rendered the conviction unsafe, and ordered a retrial on both counts.