Admissibility of Bad Character Evidence and Propensity in Criminal Appeals: An Analysis of Kawa & Anor v R. ([2023] EWCA Crim 845): England and Wales Court of Appeal (Criminal Division)

Introduction

The case of Kawa & Anor v R. ([2023] EWCA Crim 845) addresses pivotal issues surrounding the admissibility of bad character evidence under the Criminal Justice Act 2003, specifically sections 101 and 103. This case, adjudicated by the England and Wales Court of Appeal (Criminal Division) on July 14, 2023, examines whether prior convictions and behaviors of the defendants should influence their conviction for a serious criminal offense—murder.

The appellants, Mukeh Kawa and Donald Davies, were convicted of the murder of Djojo Nsaka, who was fatally stabbed in January 2017. Their conviction was predicated not only on the events of the incident but also on prior instances involving possession of knives and related behaviors. The central legal contention revolves around whether the trial judge erred in admitting non-conviction bad character evidence and whether proper jury directions were given concerning the evaluation of propensity.

Summary of the Judgment

The Court of Appeal reviewed the admissibility of bad character evidence presented during the trial of Kawa and Davies. The prosecution had introduced evidence of prior convictions for knife possession and recent purchases of knife-related items to support their assertion that the defendants were likely to have been armed during the murder of Nsaka. The defendants appealed on the grounds that this evidence was improperly admitted to suggest a propensity to carry knives, thereby prejudicing their convictions.

Upon thorough examination, the Court of Appeal upheld the trial judge's decision to admit the bad character evidence. The court concluded that the evidence was relevant to important matters in issue—namely, whether the defendants had knives during the incident and their knowledge of each other's possession of knives. The appellants' argument that the evidence was used to establish a propensity was found unsubstantiated, as the prosecution did not explicitly allege such a propensity. Consequently, the applications for extensions of time to appeal were denied, and the convictions remained intact.

Analysis

Precedents Cited

The judgment references several key cases that have shaped the interpretation of bad character evidence and propensity in criminal proceedings:

R v Bowman and Lennon [2014] EWCA Crim 716: Established that section 101(1)(d) focuses on the relevance of evidence to the issues at hand rather than its evidential sufficiency.
R v CN [2020] EWCA Crim 1028: Highlighted the prosecution's ability to establish propensity through bad character evidence.
R v Okokono and Wilson-Moonie [2014] EWCA Crim 2521: Reinforced that bad character evidence should not imply propensity unless explicitly intended by the prosecution.
R v Richardson [2014] EWCA Crim 1785: Demonstrated the fine distinction between propensity and other relevant matters in issue, such as identification.
R v Hanson and others [2005] 1 WLR 3169: Acknowledged that even single previous incidents could be relevant to propensity under certain circumstances.
R v Mitchell [2016] UKSC 55: Emphasized the necessity of clear jury directions when propensity is at issue.

These precedents collectively underscore the Court's balanced approach to admitting bad character evidence, ensuring it is relevant without overstepping into the area of propensity unless clearly established.

Legal Reasoning

The crux of the Court of Appeal's reasoning centered on the interpretation of sections 101(1)(d) and 103 of the Criminal Justice Act 2003. Under s101(1)(d), bad character evidence is admissible if it pertains to an important matter in issue between the prosecution and the defense. The Court emphasized that the relevance of such evidence is paramount and distinct from its ability to establish a propensity for certain behaviors.

The appellants contended that the prosecution aimed to use the prior convictions and behaviors to demonstrate a propensity to carry knives, thereby prejudicing the jury. However, the Court found that the prosecution's intention, as clarified by the written directions and the context of the evidence, was to link the defendants' past possession of knives to the likelihood that they brought knives to the scene during the fatal incident—not to establish a habitual propensity.

Furthermore, the Court noted the importance of jury directions in guiding the consideration of bad character evidence. While the trial judge's verbal reference to the defendants' "habit" suggested propensity, the Court determined that this single reference did not equate to an overarching argument for habitual behavior, especially in light of the prosecution's explicit stance against establishing propensity.

Referencing R v Bowman and Lennon and other cases, the Court underscored that section 101(1)(d) is primarily concerned with relevance rather than evidential sufficiency. Thus, as long as the evidence sheds light on the crucial issues—such as who was armed and the knowledge between the co-defendants—it remains admissible.

Impact

The decision in Kawa & Anor v R. reinforces the existing legal framework governing the admissibility of bad character evidence. By clarifying that such evidence must be relevant to the issues at hand without necessarily implying propensity, the judgment provides clearer guidance for both prosecution and defense in future cases.

Legal practitioners can draw from this case the importance of explicitly framing the relevance of bad character evidence, ensuring it pertains directly to matters in issue rather than inadvertently suggesting tendencies or habitual behaviors. Additionally, the ruling emphasizes the necessity for precise jury directions when dealing with complex evidentiary matters, safeguarding the fairness of trials.

For future appellate considerations, this judgment serves as a precedent affirming the trial court's discretion in admitting evidence under s101(1)(d), provided its relevance is clearly established. It also highlights the limited scope for arguing over judicial directions unless there is a substantive misapplication of the law.

Complex Concepts Simplified

Bad Character Evidence

Bad character evidence refers to information about a defendant’s past misconduct that is not directly related to the current charge but may be relevant to understanding their behavior in the incident in question.

Section 101(1)(d) of the Criminal Justice Act 2003

This section allows for the admission of bad character evidence if it is relevant to an important issue in the case. The key criterion is relevance, not whether the evidence is sufficient to prove a point.

Propensity

Propensity refers to a defendant’s inclination or habitual behavior towards committing certain types of offenses. In legal terms, establishing propensity can suggest that the defendant is more likely to have committed the crime in question.

Matters in Issue

These are the primary questions or disputes that the court needs to resolve to reach a judgment. They are directly related to the charges and defenses presented in the case.

Conclusion

The appellate ruling in Kawa & Anor v R. reaffirms the nuanced approach courts must adopt when handling bad character evidence. By delineating the boundaries between evidence relevant to important matters in issue and that which suggests propensity, the judgment ensures that defendants' rights to a fair trial are upheld without unduly limiting the prosecution's ability to present pertinent case information.

The Court of Appeal’s decision underscores the critical balance between relevance and prejudice in the admissibility of character evidence. It serves as a guiding principle for future cases, emphasizing that while past behavior can illuminate current actions, it must be carefully contextualized to avoid biased or unfounded implications of habitual wrongdoing.

Ultimately, Kawa & Anor v R. stands as a significant reminder of the importance of precise legal arguments and judicial directions in maintaining the integrity of the judicial process, ensuring that convictions are based on relevant and fair considerations.

Admissibility of Bad Character Evidence and Propensity in Criminal Appeals: An Analysis of Kawa & Anor v R. ([2023] EWCA Crim 845)