Bad Character to Prove Identity and Purpose: Preference for s101(1)(d) over s101(1)(c) in Phone‑Assisted “Encouraging or Assisting” Offences — R v Doughty [2025] EWCA Crim 1225

Introduction

This commentary examines the judgment of the England and Wales Court of Appeal (Criminal Division) in Doughty, R. v [2025] EWCA Crim 1225 (22 August 2025), delivered by Lord Justice Warby. The case arises from a night-time home invasion robbery at Atners Towers in Hampshire on 23 March 2020 by Jed Martin and Eriks Valants, and the linked prosecution of Christopher Doughty for encouraging or assisting the commission of one or more offences contrary to section 46 of the Serious Crime Act 2007, and for unauthorised possession in prison of a specified item (a mobile phone) contrary to section 40 of the Prison Act 1952.

Following trial, Doughty was convicted on both counts and sentenced to an extended sentence of 19 years for count 1 (14 years’ custody plus a five-year extended licence) and one year concurrent for the prison phone possession. He sought (out-of-time) leave to appeal against conviction and sentence; the single judge refused, and Doughty renewed to the full court. The Court of Appeal granted extensions of time (the delay was not his fault) but refused leave on both conviction and sentence.

The appeal centred on two themes:

Whether bad character evidence (two previous house-invasion offences with similar features) was wrongly admitted — and if admissible, on what statutory gateway — to resolve two pivotal issues for the jury: identity of the user of an illicit prison phone and the purpose of pre-robbery communications.
Whether the sentence for “assistance from prison” was fixed on an impermissible factual basis and was manifestly excessive, particularly in light of sentences imposed on the principal robbers.

Summary of the Judgment

The Court of Appeal refused leave to appeal on all renewed grounds. On conviction, it held that the bad character evidence was properly admitted to address two important matters in issue: (i) whether Doughty (rather than an alternative candidate, Taak) was the user of the illicit prison phone that was in contact with the robbers’ phones, and (ii) whether the purpose of those communications was to assist in planning and executing the robbery as opposed to unrelated or innocent matters. Although the Recorder had initially referred to the “explanatory evidence” gateway in section 101(1)(c) of the Criminal Justice Act 2003, the Court concluded the “better analysis” was admission under section 101(1)(d): evidence going to an important matter in issue. Proper directions were given to guard against unfair prejudice; the level of detail admitted via agreed facts was justified and not unfair.

On sentence, the Court of Appeal held the Recorder was entitled to assess Doughty’s role as close to what could have been charged as a conspiracy, to place the robbery at guideline category 1A, and to aggravate substantially for antecedents (36 convictions, including for similar home-invasion offending) and the fact the assistance was given from prison via a contraband phone. The judge could have passed consecutive terms (both for the s.40 offence and consecutively to the existing extended sentence), but did not; the overlap mitigated disparity arguments. Comparison with co-offenders’ sentences did not assist: they had pleaded guilty and their sentences were acknowledged as lenient in a prior reference, albeit not unduly lenient. The overall extended sentence was neither wrong in principle nor manifestly excessive.

Analysis

Precedents Cited and Their Use

R v Tully and Wood [2006] EWCA Crim 2270 and R v Frain and Unsworth [2007] EWCA Crim 397: These authorities were invoked by the defence to argue against admitting prior offending as propensity or explanatory material, particularly where the charged offence (assisting/encouraging) differs from the prior convictions (robbery/aggravated burglary). The Court of Appeal was not persuaded; the prior acts were deployed not to prove propensity per se but to resolve identity and the likely purpose of specific communications — both central issues. The court accepted “generic similarity” as sufficient to confer probative value for these purposes.
R v Leathem [2017] EWCA Crim 42: Cited by the Court as offering some support for admitting evidence under the “explanatory evidence” gateway in s101(1)(c). However, the Court found the “better analysis” for this case was s101(1)(d), focusing on relevance to an important matter in issue, namely identity and purpose of communications.
[2021] EWCA Crim 1233 (the Solicitor General’s reference concerning the robbers’ sentences): The Court noted that while those sentences were not increased, they were regarded as lenient and the guideline had been misapplied. This undermined any disparity-based challenge by Doughty and contextualised the lower terms received by the principals.
R v Dyer [2013] EWCA Crim 2114; [2014] 2 Cr App R (S) 11: Cited to reaffirm that adherence to the sentencing guideline structure “effectively removes” arguments about disparity stemming from different outcomes. This reinforced the Court’s conclusion that comparisons with co-offenders did not render Doughty’s sentence excessive.

Legal Reasoning

1) Admissibility and Use of Bad Character Evidence

The Court undertook a careful distinction between two concepts often elided in practice: “explanatory evidence” under section 101(1)(c), and evidence going to “an important matter in issue” under section 101(1)(d) of the Criminal Justice Act 2003. It accepted that the Recorder initially admitted the prior convictions partly as explanatory evidence, but concluded that the proper foundation was section 101(1)(d). The Court gave two specific reasons for admitting the evidence:

Identity of the phone user: The central factual contest was whether Doughty or Taak was using the 972-number illicit phone on the Wessex Wing at the times of the pre-robbery communications. The jury could rationally infer that a person with prior experience of highly similar home-invasion offending was more likely, in the circumstances, to be the actor using the phone to liaise with the robbers than the alternative suspect.
Purpose of communications: Given the timing, volume, and pattern of calls with the robbers’ phones, the jury could properly infer that the communications were not innocuous (e.g., family matters or unrelated “throw overs”), but rather provided guidance or actionable information to plan or execute the robbery. Prior similar offending made that inference more likely.

Importantly, the Court emphasised that the Recorder’s directions were “clear and balanced,” including a caution that the jury should not rely wholly or mainly on bad character evidence. This safeguarded against unfair prejudice. As to the detail of the past offences, the Court endorsed admission via agreed facts — a standard, fair mechanism — and found the specifics were not irrelevant. While not “strikingly similar,” they were “generically similar” to the instant robbery: masked entry to an occupied dwelling, tying or restraining occupants, removal of jewellery, demands for safe access, and placing a bag over a victim’s head in one case. Those characteristics bore on identity and purpose in the index events.

2) Circumstantial and Communications Evidence

The conviction was built on an interlocking circumstantial case: social and familial links between Doughty and the robbers; the presence and movement of the 972 phone within the Wessex Wing; the pattern of calls and mast connections with devices indisputably used by Martin and Valants in the Stockbridge area; and the contextual naming of contact numbers (e.g., “CD,” “Nibs”) linking the 972 and 690 numbers to Doughty. While the appellant advanced the “Taak alternative” — including that Taak led “throw overs” and could have been the inside source — the jury were entitled, with the benefit of bad character evidence properly admitted under s101(1)(d), to prefer the Crown’s case on both identity and purpose.

The third original ground (a summing-up complaint about the cell-site expert) was abandoned before the full court. The Court noted there was evidence that phone connection was possible from the applicant’s cell type/network and that expert evidence was called; in any event, the ground was not pursued.

3) Sentencing Analysis

The Recorder placed the robbery at category 1A under the relevant robbery guideline (starting point 13 years; range 10–16 years) and treated Doughty’s assistance as “at the very least close to what could have been charged as a conspiracy.” His extensive antecedents (36 convictions for 145 offences, with 98 theft-related including numerous dwelling burglaries) and the fact that assistance was provided from prison via contraband phone use were significant aggravating factors. The extended sentence structure (dangerousness and five-year extension) was unchallenged on appeal.

The Court endorsed five key propositions (synthesising the single judge’s analysis):

Role assessment: The degree of participation was for the trial judge, who heard all the evidence; the Recorder’s inference that Doughty’s role was proximate to conspiracy was open to him.
Antecedents: The prior record very substantially aggravated seriousness, beyond the two similar offences deployed as bad character at trial.
Prison phone offending: The judge could have passed a consecutive sentence for the s.40 Prison Act offence; instead, he reflected it as aggravation in the main count — a legitimate course.
Consecutive to existing sentence: The Recorder could have ordered the sentence to run consecutively to Doughty’s existing extended sentence; he did not, resulting in overlap, which effectively reduces complaints of overall severity.
Disparity: Arguments based on co-offenders’ sentences fail: those offenders pleaded guilty, were less heavily convicted, and their terms were later recognised as lenient (though not unduly so). Following the guideline approach (per Dyer) blunts disparity arguments.

The Court added that an offender cannot simply rely on a co-offender’s more lenient sentence; that Martin and Valants’ notional “after trial” figures were higher (12½ years); that their case had been the subject of an unduly lenient reference; and that Doughty was sentenced in accordance with the guideline. In totality, neither the custodial element nor the total extended term was excessive.

Impact and Significance

Clarifying the correct bad character gateway: The judgment is a clear statement that, where prior offending bears “generic similarity” to the index conduct and is used to resolve the identity of a phone user and/or the illicit purpose of communications, section 101(1)(d) (important matter in issue) is the proper gateway. This reduces reliance on the more contestable “explanatory evidence” route under s101(1)(c) in such scenarios.
Scope of “generic similarity”: The Court accepts that evidence need not reach “striking similarity” to be probative for identity/purpose when intertwined with communications data and contextual links. This is particularly pertinent in modern prosecutions where attribution of devices and interpreting contact patterns are central.
Use of detail via agreed facts: The Court endorses admitting the salient details of prior offences by agreement. Even potentially emotive facts (e.g., vulnerability of victims) may be relevant where they inform similarity and purpose, provided judicial directions appropriately cabin prejudice.
“Phone from prison” as aggravation: Where assistance is coordinated from custody using contraband phones, courts may legitimately treat that conduct as a major aggravating feature of the principal offence, or impose a separate consecutive term; Doughty confirms that reflecting it within the principal sentence is proper, and that its presence can drive sentences toward the top of, or beyond, guideline ranges where roles approximate conspiracy.
Disparity arguments post-guidelines: Following Dyer, adherence to guidelines diminishes the weight of disparity arguments. Where co-offenders’ sentences have been recognised as lenient, comparability points will carry even less force.
Case-building with comms data and bad character: Prosecutors may pair robust communications analysis with targeted bad character to address identity and intent. Defence teams should anticipate this interplay and calibrate challenges both to attribution (e.g., device user) and to the gateway relied upon for admitting priors.

Complex Concepts Simplified

Bad character gateways (CJA 2003 s101): Section 101(1)(c) (“explanatory evidence”) admits evidence that helps the jury make sense of other evidence. Section 101(1)(d) admits evidence relevant to an “important matter in issue” — such as identity, intent, or purpose. Doughty confirms that when prior offending helps show who likely used a device and why communications took place, s101(1)(d) is the better fit, accompanied by careful directions not to convict simply because of past misconduct.
Serious Crime Act 2007, s46: Criminalises acts capable of encouraging or assisting the commission of one or more offences. Liability is distinct from, and can be established without, being a principal offender; assistance can be provided remotely (e.g., via phone communications).
Extended sentence and “dangerousness”: An extended sentence comprises a custodial term plus an added extended licence period where the court assesses a significant risk of serious harm from further specified offences. In Doughty, dangerousness and the five-year extension were not challenged on appeal.
Robbery guideline category 1A: The highest culpability/harm bracket with a 13-year starting point and a 10–16 year range after trial. The court may move outside ranges for aggravating features or when offender roles verge on conspiracy-level involvement.
Disparity and unduly lenient references: Differences between co-offenders’ sentences seldom assist an appellant if the appellant’s sentence follows guidelines. A prior finding that co-offenders’ sentences were lenient (but not unduly so) further weakens disparity arguments.
Cell-site and communications attribution: Investigators map call records and mast connections to place devices and infer contacts. Attribution may be strengthened by contact names, stored identifiers (e.g., initials or nicknames), and call patterns. Such data, combined with bad character where admissible, can underpin findings on identity and purpose.

Conclusion

R v Doughty establishes a clear and practical doctrinal point for trials involving remote assistance to serious crimes via phone communications: where prior offending bears generic similarity to the index conduct and is used to resolve who used a device and why, the correct gateway for admissibility is section 101(1)(d) — evidence going to an important matter in issue — rather than section 101(1)(c)’s explanatory rubric. The Court endorses admitting the salient details of prior offences through agreed facts, coupled with judicial directions that prevent undue prejudice.

On sentencing, the decision underscores that phone‑based assistance from prison may properly be treated as gravely aggravating and can justify sentences approaching (or adjusted from) principal-offender levels, particularly where the offender’s role is close to conspiracy and antecedents are heavy. Disparity arguments are weakened where co‑offenders pleaded guilty and received sentences later recognised as lenient, and where the impugned sentence adheres to guideline methodology.

The case will likely be cited for its careful calibration of the bad character gateways in communications‑driven prosecutions and for reaffirming robust sentencing where organised acquisitive crimes are orchestrated from within the prison estate.