Richard James Spottiswood [2019] EWCA Crim 949
Summary
R v Richard James Spottiswood [2019] EWCA Crim 949 concerned an appeal by Mr Spottiswood against his conviction for murder and against the minimum term of twenty-two years imposed by His Honour Judge Ashurst at Newcastle Crown Court. The Court of Appeal (Lord Justice Fulford, Mr Justice Andrew Baker and Sir John Royce) allowed the appeal against sentence, reducing the minimum term to twenty years, but dismissed the appeal against conviction.
On 2 July 2018, following a retrial, Mr Spottiswood was convicted unanimously of the murder of Mr Darren Bonner, a 24-year-old mechanic who had worked for the appellant and assisted him in growing cannabis commercially. On 23 August 2018 the appellant was sentenced to life imprisonment with a minimum term of twenty-two years, less 402 days served on remand. The single judge granted leave to appeal against conviction on one ground relating to bad character evidence concerning an escape from custody in 2010, and also granted leave to appeal the minimum term.
On the morning of 10 July 2017, Mr Watson Cowton, walking on a country lane in Northumberland, heard loud snoring noises and discovered Mr Bonner lying naked and fatally injured in a shallow hole in the ground. Mr Bonner was taken to hospital but died sixteen days later without regaining consciousness. At trial it was common ground that Mr Bonner’s death resulted from being held in a headlock by the appellant in the early hours of that morning, which caused irreversible brain damage. The appellant maintained that he had acted in lawful self-defence.
The Crown’s case was that the appellant and Mr Bonner fell out because the appellant discovered that Mr Bonner had betrayed him to a rival drugs dealer, Paul Taylor. The prosecution alleged that the appellant reacted violently, deliberately choking Mr Bonner by putting him into an armlock at Cresswell Towers Caravan Park, where both men had been spending the weekend in a mobile home with the appellant’s partner, Ms Lucy Burn, and their children. At about 8.00 am on 10 July, the appellant’s distinctive van was seen by Mr Hastings reversing into a layby adjacent to a gap in the wall behind which Mr Bonner was later found. CCTV showed the van parked for up to seven minutes. The Crown contended that the appellant dragged Mr Bonner across rough ground and dumped him in the shallow hole which, it was alleged, the two men had dug on 8 July. The appellant then drove away but executed a U-turn instead of returning to the caravan, and visited an address used by Mr Bonner. He drove to the area of the grave again that evening but did not stop because police were present. He collected his partner and took steps to avoid the police. There was a vehicle chase on 12 July 2017 and the appellant was found in bushes by a police dog.
During extensive police interviews the appellant repeatedly denied knowing anything about how Mr Bonner came to be in the hole. He said that Mr Bonner was a friend who had spent the weekend in the caravan but had simply disappeared on the Monday morning. He denied knowledge of the hole and expressed the hope that Mr Bonner would regain consciousness to corroborate his account. He suggested that he may have turned around in the layby because Ms Burn thought she had left her phone behind but then found it in her handbag. He expressed indignation at being accused of complicity. When asked if he was capable of strangling Mr Bonner, he replied that he did not believe he would ever do so.
Dr Egan, a forensic pathologist, found thirty-two injuries including petechial haemorrhaging on Mr Bonner’s forehead and around both eyes, dot haematomas across the neck, an L-shaped abrasion and graze, and further abrasions and grazes. There was no underlying medical condition that contributed to death. Mr Bonner had consumed cocaine, alcohol and cannabis in indeterminate quantities. Dr Egan concluded that the injuries were consistent with the application of pressure to the neck when struggling violently for no more than about twenty seconds. Mr Bonner may have collapsed and gone limp.
The appellant’s case at trial differed markedly from his account in interview. In his defence statement and evidence he maintained that he had killed Mr Bonner accidentally whilst acting in self-defence. He said that Mr Bonner traded in firearms as well as drugs and had brought a bag containing sawn-off shotguns and ammunition to the caravan site. During Saturday night Mr Bonner had gone to dig a hole to bury the firearms. There was some slight evidence to support this account, including images on Mr Bonner’s mobile telephone and the discovery of shotgun cartridges that were securely wrapped. The appellant’s account was that late on the Sunday night he agreed to accompany Mr Bonner to bury the guns because Mr Bonner was adversely affected by drink and drugs. The two men set off in the early hours of Monday morning. At the hole Mr Bonner unexpectedly admitted that he had been spying on the appellant for Paul Taylor and had told Taylor where a crop of cannabis belonging to the appellant was to be found, which Taylor then stole. The appellant told Mr Bonner that he wanted nothing more to do with him. Mr Bonner became angry and tried to take the bag containing the guns. There was a violent struggle during which the appellant grabbed Mr Bonner in a headlock. Mr Bonner struggled and tried to pull the appellant’s arm from his neck. Suddenly Mr Bonner went limp and fell to the ground. The appellant thought he was play-acting and turned him over, whereupon his legs landed in the hole. The appellant believed Mr Bonner was dead. In panic he removed the clothing so that Mr Bonner could not be linked to the incident, during which the rest of the body accidentally fell into the hole. The appellant was unable to carry the bag of guns, the spade and the clothing back to the caravan. He hid the bag behind the wall and collected it the following morning. He returned to the scene that night to find out whether there was any activity. He said he lied to the police to protect both himself and Mr Bonner from investigation into their illegal activities.
The Crown relied on evidence of the appellant’s bad character relating to an incident in 2010 which was set out in agreed facts. On 23 July 2010 the appellant was remanded at HMP Everthorpe and was taken to hospital for treatment for an injury to his hand. At the hospital he said he needed to use the toilet and was taken there chained to Prison Officer Farmer. On the return journey the appellant attacked Prison Officer Farmer, taking hold of him around his neck and putting him in a headlock. Prison Officer Farmer described the grip as tight, lifting him off his feet. The appellant demanded that the handcuffs be removed and held a knife which he pressed into the officer’s neck. The handcuffs were unlocked. The appellant walked backwards through the Accident and Emergency Department with the officer still in his grip before running off. He was soon apprehended by police. He pleaded guilty to escaping from lawful custody, possession of an offensive weapon and assault occasioning actual bodily harm on 11 March 2012. Prison Officer Farmer had no physical injuries but suffered psychological harm.
The trial judge ruled that the 2010 incident was admissible under section 101(1)(d) of the Criminal Justice Act 2003. He determined that it was relevant because it demonstrated a previous offensive use of a headlock by the appellant, which was directly relevant to whether on this occasion the appellant had acted spontaneously in self-defence or whether he had used this tactic offensively. The judge noted that the defence had introduced certain aspects of the appellant’s bad character which revealed significant criminal activity including commercial cannabis farming and preparedness to hide and dispose of illegal firearms and ammunition. Although the facts of the attempted escape were dramatic and colourful, they formed part of an admitted criminal background about which the jury were already aware. In the summing-up the judge directed the jury that the 2010 incident could show that the appellant had a tendency to use a headlock not for restraint but offensively, making it more likely that he was the aggressor in the argument with Mr Bonner. The judge instructed the jury that the mere fact that a defendant had been involved in other criminal activity or had previous convictions could not prove he committed murder and they must not convict wholly or mainly because of his criminal past. The judge directed that it was for the jury to decide whether the previous convictions showed such a tendency, and if they were not sure they must ignore them. If they were sure they did show a tendency, this might support the prosecution case and it was for them to say whether it did and to what extent. The judge also directed that knowledge of the previous incident might assist if they concluded the appellant had an awareness of both the effectiveness and the potential dangers of using a headlock, and that the defence said this showed he had reason to believe that no injury might be caused even when substantial force was used.
Mr Andrew Hall QC, appearing for the appellant with Miss Pippa Woodrow, submitted that there was nothing inherently incredible about the appellant’s account and that there was no independent evidence as to where the fatal altercation had occurred or the circumstances. He argued that the 2010 incident had little probative value, having occurred some years earlier and not having involved the infliction of significant physical injuries. He contended that it introduced obvious and unacceptable prejudice and impermissibly bolstered a weak prosecution case. He argued that the earlier incident, which occurred in markedly different circumstances, had no relevance to whether the appellant had acted in self-defence. Relying on R v Hanson, R v Gilmore, R v P [2005] EWCA Crim 824, he submitted that a single incident was unlikely to demonstrate propensity. He emphasised that a headlock had been used as a method of restraint by some police and prison officers and did not ipso facto demonstrate an offensive purpose. He emphasised the differences between the two incidents and in particular that Mr Bonner clearly struggled, unlike the prison officer in 2010. Mr Hall also contended that the judge’s directions were flawed and that the effects of using a headlock were inherently unpredictable, particularly when the person restrained was intoxicated and struggling. Evidence from Dr Egan was that unconsciousness could occur within ten seconds and death or fatal injury within twenty seconds. Mild compressive force would have been sufficient. Mr Hall submitted that the evidence risked inflaming the emotions of the jury by revealing that the appellant had been in custody and had sought to escape by threatening to cut the throat of a prison officer, thereby causing lasting psychological harm. Even if the evidence had some probative value, its prejudicial effect was so great that it should have been excluded.
The Court of Appeal rejected the appellant’s submissions on this ground. The court held that the 2010 incident was clearly relevant to the issue of whether the appellant might have been telling the truth when he said he had simply acted instinctively in self-defence, rather than having attacked Mr Bonner by placing him deliberately in a headlock. The court noted two critical factors: first, that the appellant had said in interview that he did not believe he would ever do such a thing; and, second, his defence was that he had used a headlock in self-defence. Against that background, the previous incident of an assault on another man, when the appellant adopted the identical tactic of applying significant pressure to his victim’s neck so that he lifted him off his feet, was clearly relevant. On both occasions he restricted his victim’s freedom of movement while simultaneously applying potentially asphyxiating pressure to the neck. The 2010 incident demonstrated a tendency or propensity to use a very particular hold on another person, namely the headlock, not for the purpose of restraint or defence but offensively, thereby making it more likely that he was the aggressor in 2017. The court referred to section 103(1) of the Criminal Justice Act 2003 and to the guidance in Hanson that there was no minimum number of events necessary to demonstrate propensity and that a single previous conviction could show propensity where, for example, it showed a tendency to unusual behaviour or where its circumstances demonstrated probative force in relation to the offence charged. The court also referred to R v Dossett [2013] EWCA Crim 710, which emphasised that there must be a logical basis for concluding that the previous offending showed that the defendant was more likely to be prepared to commit the specific crime in question.
The court was unable to accept the submission that the evidence of the 2010 incident would have inflamed the emotions of the jury, thereby preventing a fair trial. The appellant admitted his role as a producer and supplier of cannabis, along with his preparedness to assist in the retention of firearms and ammunition. The court was unpersuaded that the facts of his earlier conviction would have interfered with the jury’s dispassionate consideration of the evidence. The assault and escape from custody was undoubtedly a dramatic incident, but the facts were not so shocking as to render the trial unfair. In the summing-up the judge gave the jury appropriate directions, limiting the potential relevance of this material and instructing the jury that this evidence could at most provide only some support for the prosecution’s case. The court was equally unable to accept the submission that this evidence had the effect of bolstering a weak case. Contrary to Mr Hall’s submissions, there was a clear case for the appellant to meet. In his defence statement he admitted having applied deliberate and sustained pressure to the neck whilst Mr Bonner struggled violently, having discovered that Mr Bonner had betrayed him to a rival. He lied significantly during his interviews and his movements were generally consistent with an attempt to dispose of a body following an unlawful attack. He abandoned the naked body of a dying man whom he said he believed was dead, removed the clothing to prevent a link being made between him and the victim, returned to the scene later to discover if Mr Bonner was indeed dead, and tried to evade arrest by the police.
The appellant also sought leave to appeal on a second ground relating to the judge’s directions in relation to lies and the failure to mention facts in interview. The single judge refused leave on this ground but the Court of Appeal granted leave. The interviews in which the lies were told occurred before Mr Bonner died, and the appellant had expressed the hope during interview that Mr Bonner would recover and would support his account. The judge directed the jury in accordance with section 34 of the Criminal Justice and Public Order Act 1994 and R v Lucas (1981) 73 Cr App R 159 and R v Goodway [1993] 4 All ER 894. The judge directed the jury that during his police interviews the appellant denied he knew anything about how Mr Bonner came to be found naked and barely conscious in a shallow pit, which he now accepted was a lie. The jury must decide why he lied. A defendant who told lies was not necessarily guilty. Sometimes a person who was not guilty would lie for some other reason. The appellant said he told lies to avoid exposing himself and Mr Bonner to questioning about cannabis production, inquiries about handling or supplying firearms, and risk of substantial terms of imprisonment. If the jury found that those reasons were or might be the truth, they must take no notice of the lies and not hold them against him. If they were sure the appellant did not lie for such reasons they might use this as evidence which supported the prosecution case, but they should not convict him wholly or mainly simply on the basis that he lied. The judge separately directed the jury in relation to the appellant’s failure to mention his defence
On 2 July 2018, following a retrial, Mr Spottiswood was convicted unanimously of the murder of Mr Darren Bonner, a 24-year-old mechanic who had worked for the appellant and assisted him in growing cannabis commercially. On 23 August 2018 the appellant was sentenced to life imprisonment with a minimum term of twenty-two years, less 402 days served on remand. The single judge granted leave to appeal against conviction on one ground relating to bad character evidence concerning an escape from custody in 2010, and also granted leave to appeal the minimum term.
On the morning of 10 July 2017, Mr Watson Cowton, walking on a country lane in Northumberland, heard loud snoring noises and discovered Mr Bonner lying naked and fatally injured in a shallow hole in the ground. Mr Bonner was taken to hospital but died sixteen days later without regaining consciousness. At trial it was common ground that Mr Bonner’s death resulted from being held in a headlock by the appellant in the early hours of that morning, which caused irreversible brain damage. The appellant maintained that he had acted in lawful self-defence.
The Crown’s case was that the appellant and Mr Bonner fell out because the appellant discovered that Mr Bonner had betrayed him to a rival drugs dealer, Paul Taylor. The prosecution alleged that the appellant reacted violently, deliberately choking Mr Bonner by putting him into an armlock at Cresswell Towers Caravan Park, where both men had been spending the weekend in a mobile home with the appellant’s partner, Ms Lucy Burn, and their children. At about 8.00 am on 10 July, the appellant’s distinctive van was seen by Mr Hastings reversing into a layby adjacent to a gap in the wall behind which Mr Bonner was later found. CCTV showed the van parked for up to seven minutes. The Crown contended that the appellant dragged Mr Bonner across rough ground and dumped him in the shallow hole which, it was alleged, the two men had dug on 8 July. The appellant then drove away but executed a U-turn instead of returning to the caravan, and visited an address used by Mr Bonner. He drove to the area of the grave again that evening but did not stop because police were present. He collected his partner and took steps to avoid the police. There was a vehicle chase on 12 July 2017 and the appellant was found in bushes by a police dog.
During extensive police interviews the appellant repeatedly denied knowing anything about how Mr Bonner came to be in the hole. He said that Mr Bonner was a friend who had spent the weekend in the caravan but had simply disappeared on the Monday morning. He denied knowledge of the hole and expressed the hope that Mr Bonner would regain consciousness to corroborate his account. He suggested that he may have turned around in the layby because Ms Burn thought she had left her phone behind but then found it in her handbag. He expressed indignation at being accused of complicity. When asked if he was capable of strangling Mr Bonner, he replied that he did not believe he would ever do so.
Dr Egan, a forensic pathologist, found thirty-two injuries including petechial haemorrhaging on Mr Bonner’s forehead and around both eyes, dot haematomas across the neck, an L-shaped abrasion and graze, and further abrasions and grazes. There was no underlying medical condition that contributed to death. Mr Bonner had consumed cocaine, alcohol and cannabis in indeterminate quantities. Dr Egan concluded that the injuries were consistent with the application of pressure to the neck when struggling violently for no more than about twenty seconds. Mr Bonner may have collapsed and gone limp.
The appellant’s case at trial differed markedly from his account in interview. In his defence statement and evidence he maintained that he had killed Mr Bonner accidentally whilst acting in self-defence. He said that Mr Bonner traded in firearms as well as drugs and had brought a bag containing sawn-off shotguns and ammunition to the caravan site. During Saturday night Mr Bonner had gone to dig a hole to bury the firearms. There was some slight evidence to support this account, including images on Mr Bonner’s mobile telephone and the discovery of shotgun cartridges that were securely wrapped. The appellant’s account was that late on the Sunday night he agreed to accompany Mr Bonner to bury the guns because Mr Bonner was adversely affected by drink and drugs. The two men set off in the early hours of Monday morning. At the hole Mr Bonner unexpectedly admitted that he had been spying on the appellant for Paul Taylor and had told Taylor where a crop of cannabis belonging to the appellant was to be found, which Taylor then stole. The appellant told Mr Bonner that he wanted nothing more to do with him. Mr Bonner became angry and tried to take the bag containing the guns. There was a violent struggle during which the appellant grabbed Mr Bonner in a headlock. Mr Bonner struggled and tried to pull the appellant’s arm from his neck. Suddenly Mr Bonner went limp and fell to the ground. The appellant thought he was play-acting and turned him over, whereupon his legs landed in the hole. The appellant believed Mr Bonner was dead. In panic he removed the clothing so that Mr Bonner could not be linked to the incident, during which the rest of the body accidentally fell into the hole. The appellant was unable to carry the bag of guns, the spade and the clothing back to the caravan. He hid the bag behind the wall and collected it the following morning. He returned to the scene that night to find out whether there was any activity. He said he lied to the police to protect both himself and Mr Bonner from investigation into their illegal activities.
The Crown relied on evidence of the appellant’s bad character relating to an incident in 2010 which was set out in agreed facts. On 23 July 2010 the appellant was remanded at HMP Everthorpe and was taken to hospital for treatment for an injury to his hand. At the hospital he said he needed to use the toilet and was taken there chained to Prison Officer Farmer. On the return journey the appellant attacked Prison Officer Farmer, taking hold of him around his neck and putting him in a headlock. Prison Officer Farmer described the grip as tight, lifting him off his feet. The appellant demanded that the handcuffs be removed and held a knife which he pressed into the officer’s neck. The handcuffs were unlocked. The appellant walked backwards through the Accident and Emergency Department with the officer still in his grip before running off. He was soon apprehended by police. He pleaded guilty to escaping from lawful custody, possession of an offensive weapon and assault occasioning actual bodily harm on 11 March 2012. Prison Officer Farmer had no physical injuries but suffered psychological harm.
The trial judge ruled that the 2010 incident was admissible under section 101(1)(d) of the Criminal Justice Act 2003. He determined that it was relevant because it demonstrated a previous offensive use of a headlock by the appellant, which was directly relevant to whether on this occasion the appellant had acted spontaneously in self-defence or whether he had used this tactic offensively. The judge noted that the defence had introduced certain aspects of the appellant’s bad character which revealed significant criminal activity including commercial cannabis farming and preparedness to hide and dispose of illegal firearms and ammunition. Although the facts of the attempted escape were dramatic and colourful, they formed part of an admitted criminal background about which the jury were already aware. In the summing-up the judge directed the jury that the 2010 incident could show that the appellant had a tendency to use a headlock not for restraint but offensively, making it more likely that he was the aggressor in the argument with Mr Bonner. The judge instructed the jury that the mere fact that a defendant had been involved in other criminal activity or had previous convictions could not prove he committed murder and they must not convict wholly or mainly because of his criminal past. The judge directed that it was for the jury to decide whether the previous convictions showed such a tendency, and if they were not sure they must ignore them. If they were sure they did show a tendency, this might support the prosecution case and it was for them to say whether it did and to what extent. The judge also directed that knowledge of the previous incident might assist if they concluded the appellant had an awareness of both the effectiveness and the potential dangers of using a headlock, and that the defence said this showed he had reason to believe that no injury might be caused even when substantial force was used.
Mr Andrew Hall QC, appearing for the appellant with Miss Pippa Woodrow, submitted that there was nothing inherently incredible about the appellant’s account and that there was no independent evidence as to where the fatal altercation had occurred or the circumstances. He argued that the 2010 incident had little probative value, having occurred some years earlier and not having involved the infliction of significant physical injuries. He contended that it introduced obvious and unacceptable prejudice and impermissibly bolstered a weak prosecution case. He argued that the earlier incident, which occurred in markedly different circumstances, had no relevance to whether the appellant had acted in self-defence. Relying on R v Hanson, R v Gilmore, R v P [2005] EWCA Crim 824, he submitted that a single incident was unlikely to demonstrate propensity. He emphasised that a headlock had been used as a method of restraint by some police and prison officers and did not ipso facto demonstrate an offensive purpose. He emphasised the differences between the two incidents and in particular that Mr Bonner clearly struggled, unlike the prison officer in 2010. Mr Hall also contended that the judge’s directions were flawed and that the effects of using a headlock were inherently unpredictable, particularly when the person restrained was intoxicated and struggling. Evidence from Dr Egan was that unconsciousness could occur within ten seconds and death or fatal injury within twenty seconds. Mild compressive force would have been sufficient. Mr Hall submitted that the evidence risked inflaming the emotions of the jury by revealing that the appellant had been in custody and had sought to escape by threatening to cut the throat of a prison officer, thereby causing lasting psychological harm. Even if the evidence had some probative value, its prejudicial effect was so great that it should have been excluded.
The Court of Appeal rejected the appellant’s submissions on this ground. The court held that the 2010 incident was clearly relevant to the issue of whether the appellant might have been telling the truth when he said he had simply acted instinctively in self-defence, rather than having attacked Mr Bonner by placing him deliberately in a headlock. The court noted two critical factors: first, that the appellant had said in interview that he did not believe he would ever do such a thing; and, second, his defence was that he had used a headlock in self-defence. Against that background, the previous incident of an assault on another man, when the appellant adopted the identical tactic of applying significant pressure to his victim’s neck so that he lifted him off his feet, was clearly relevant. On both occasions he restricted his victim’s freedom of movement while simultaneously applying potentially asphyxiating pressure to the neck. The 2010 incident demonstrated a tendency or propensity to use a very particular hold on another person, namely the headlock, not for the purpose of restraint or defence but offensively, thereby making it more likely that he was the aggressor in 2017. The court referred to section 103(1) of the Criminal Justice Act 2003 and to the guidance in Hanson that there was no minimum number of events necessary to demonstrate propensity and that a single previous conviction could show propensity where, for example, it showed a tendency to unusual behaviour or where its circumstances demonstrated probative force in relation to the offence charged. The court also referred to R v Dossett [2013] EWCA Crim 710, which emphasised that there must be a logical basis for concluding that the previous offending showed that the defendant was more likely to be prepared to commit the specific crime in question.
The court was unable to accept the submission that the evidence of the 2010 incident would have inflamed the emotions of the jury, thereby preventing a fair trial. The appellant admitted his role as a producer and supplier of cannabis, along with his preparedness to assist in the retention of firearms and ammunition. The court was unpersuaded that the facts of his earlier conviction would have interfered with the jury’s dispassionate consideration of the evidence. The assault and escape from custody was undoubtedly a dramatic incident, but the facts were not so shocking as to render the trial unfair. In the summing-up the judge gave the jury appropriate directions, limiting the potential relevance of this material and instructing the jury that this evidence could at most provide only some support for the prosecution’s case. The court was equally unable to accept the submission that this evidence had the effect of bolstering a weak case. Contrary to Mr Hall’s submissions, there was a clear case for the appellant to meet. In his defence statement he admitted having applied deliberate and sustained pressure to the neck whilst Mr Bonner struggled violently, having discovered that Mr Bonner had betrayed him to a rival. He lied significantly during his interviews and his movements were generally consistent with an attempt to dispose of a body following an unlawful attack. He abandoned the naked body of a dying man whom he said he believed was dead, removed the clothing to prevent a link being made between him and the victim, returned to the scene later to discover if Mr Bonner was indeed dead, and tried to evade arrest by the police.
The appellant also sought leave to appeal on a second ground relating to the judge’s directions in relation to lies and the failure to mention facts in interview. The single judge refused leave on this ground but the Court of Appeal granted leave. The interviews in which the lies were told occurred before Mr Bonner died, and the appellant had expressed the hope during interview that Mr Bonner would recover and would support his account. The judge directed the jury in accordance with section 34 of the Criminal Justice and Public Order Act 1994 and R v Lucas (1981) 73 Cr App R 159 and R v Goodway [1993] 4 All ER 894. The judge directed the jury that during his police interviews the appellant denied he knew anything about how Mr Bonner came to be found naked and barely conscious in a shallow pit, which he now accepted was a lie. The jury must decide why he lied. A defendant who told lies was not necessarily guilty. Sometimes a person who was not guilty would lie for some other reason. The appellant said he told lies to avoid exposing himself and Mr Bonner to questioning about cannabis production, inquiries about handling or supplying firearms, and risk of substantial terms of imprisonment. If the jury found that those reasons were or might be the truth, they must take no notice of the lies and not hold them against him. If they were sure the appellant did not lie for such reasons they might use this as evidence which supported the prosecution case, but they should not convict him wholly or mainly simply on the basis that he lied. The judge separately directed the jury in relation to the appellant’s failure to mention his defence
The appellant was convicted of murder where it was agreed that death had been caused as a result of the victim being held in a headlock by the appellant. The ground for appeal was that the judge had erred in admitting a conviction for escape as bad character evidence. The circumstances of that conviction being that the appellant had been taken to hospital from prison where he had received an injury to his hand. At the hospital he put a prison officer in a headlock, lifting him off his feet and holding a knife to his neck demanding that the handcuffs be released.
In his defence statement the appellant said that he held the victim in a headlock as he struggled violently, to prevent him having access to a bag he believed contained firearms. Initially he had said in interview that he had not strangled him round the neck, he said “I don’t want to get hypothetical about what I’m capable of doing and what I’m not capable of doing, I don’t see myself ever doing that so as I’m aware. I did not do that to Darren.”
The judge determined that the previous conviction was relevant because it demonstrated previous offensive use of a headlock directly relevant to the issue of whether he had acted spontaneously in self-defence.
Held: the judge was correct to leave the evidence to the jury on the factual basis that it was open to them to conclude that the appellant had an awareness of both the effectiveness and potential dangers of using a headlock.
The submission that the evidence would have inflamed the emotions of the jury, thus preventing a fair trial, was rejected. The summing-up gave appropriate directions limiting the potential relevance and the jury were told it could at most provide only some support for the prosecution case. A further argument in respect of the judge’s directions in relation to lies and the failure to mention facts in interview was also rejected and the appeal dismissed.