Leathem & Anor v REGINA

Factual and Procedural Background

On 3rd March 2016, in the Crown Court at Stafford, following a trial before Judge Eades and a jury, the appellants, referred to as Appellant A and Appellant B, were convicted of conspiracy to burgle (count 6 on the indictment). On 19th May 2016, Appellant A was sentenced to 3 years' imprisonment for this offence, to be served consecutively with earlier concurrent sentences totaling 12 years for other conspiracy offences, resulting in a total sentence of 15 years. This sentence was later increased to 18 years on 28th October 2016 following a reference by the Attorney-General, with the consecutive sentence for count 6 reduced to 2 years. Appellant B was also sentenced to 3 years' imprisonment for count 6 on 19th May 2016.

Previously, in November 2015, a trial before Judge Gosling resulted in a hung jury on the offence later retried. Both appellants now appeal their convictions on count 6, with leave granted to challenge the admissibility of evidence of Appellant A's previous convictions under section 101(1)(c) of the Criminal Justice Act (CJA) 2003. An additional ground of appeal by Appellant B relating to the summing up was refused leave by a single judge but renewed before this court.

The offences relate to two indictments: Indictment No. 3 concerned conspiracies between March and October 2013 involving robberies and burglaries with violent methods and the use of high-value vehicles. Indictment No. 5 concerned conspiracies between December 2013 and June 2014 involving similar offences while on bail, including stealing vehicle registration plates to avoid detection.

The appeal focuses on evidence discovered during a police search of Appellant A’s home on 4th June 2014, where a hand-drawn floorplan of a property belonging to an elderly man with firearms was found inside a household appliance. Appellant B’s fingerprints were on the floorplan, which he admitted drawing. Appellant B claimed he created the plan out of concern for the property owner’s safety but forgot to report his concerns. The prosecution alleged the floorplan was part of a conspiracy to burgle the property and steal firearms.

Neither appellant gave live evidence; Appellant A remained silent, while Appellant B testified that he was a gas engineer who visited the property and drew the plans out of concern. The jury’s issue was whether Appellant B provided the plans to Appellant A to form an agreement to burgle and steal firearms, constituting a crystallised conspiracy.

The prosecution relied heavily on circumstantial evidence including the floorplan found in Appellant A’s home, a notebook referencing firearms, telephone records, and admitted bad character evidence relating to Appellant A’s previous convictions. The appellants contend that the judge erred in admitting the bad character evidence.

Legal Issues Presented

1. Whether the trial judge erred in admitting evidence of Appellant A’s previous convictions as "bad character" evidence under section 101(1)(c) of the Criminal Justice Act 2003.
2. Whether the admission of such evidence was unfairly prejudicial and undermined the fairness of the trial.
3. Whether the judge’s summing up regarding the framing of the conspiracy charge was unfair and prejudicial to Appellant B.

Arguments of the Parties

Appellants' Arguments

• The previous convictions did not establish a propensity to commit burglaries to steal firearms and thus did not meet the criteria for admissibility under sections 101(1)(c) or (d) of the CJA 2003.
• The evidence represented a major departure from the weapon choice associated with Appellant A’s prior offences and Appellant B was not a party to those conspiracies.
• The case could be understood by the jury without knowledge of Appellant A’s convictions, as shown by the hung jury at the first trial where such evidence was excluded.
• The bad character evidence was not substantially valuable for understanding the case and its admission was overwhelmingly prejudicial, risking unfairness under section 101(3) of the CJA 2003.
• If admitted under section 101(1)(c) only, there was a risk the jury would misuse the evidence as propensity evidence, contrary to legal principles.
• The real issue was whether the appellants agreed to burgle the property, not the intended use of any stolen weapons.
• For Appellant B, the prejudicial effect outweighed probative value under PACE 1984 section 78.
• Regarding the summing up, Appellant B argued the jury was unfairly invited to convict on a wider conspiracy than that charged.

Prosecution's Arguments

• The bad character evidence was admissible under section 101(1)(c) as important explanatory evidence necessary to understand the case as a whole.
• The evidence explained the existence and concealment of the burglary plan found at Appellant A’s home and rebutted Appellant B’s innocent explanations.
• The evidence showed Appellant A’s active involvement in a serious criminal gang engaged in linked burglaries and robberies, providing essential background context.
• The admission of the evidence did not constitute impermissible propensity evidence and was consistent with established case law on gang-related bad character evidence.
• The judge’s summing up correctly explained the charge and the jury’s task, clarifying that the prosecution needed only to prove an agreement between the two appellants, regardless of other possible participants.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully analysed the admissibility of Appellant A’s previous convictions as bad character evidence under section 101(1)(c) of the Criminal Justice Act 2003, which permits evidence that is "important explanatory evidence." The court applied the statutory test defined in section 102, requiring that without the evidence the jury would find it impossible or difficult to understand other evidence, and that its value for understanding the case as a whole is substantial.

The court found that the bad character evidence was essential to explain how and why the burglary floorplan was created and concealed in Appellant A’s home. Without this evidence, the jury would lack critical context to assess the plausibility of Appellant B’s innocent explanations and understand the nature of the criminal enterprise of which Appellant A was a part. The evidence was also considered important background evidence showing Appellant A’s active involvement in a serious gang engaged in linked burglaries and robberies, which contextualised the conspiracy charge.

The court rejected the appellants’ argument that the evidence was an impermissible attempt to show propensity. It held that gang-related bad character evidence is regularly admitted under the relevant statutory gateways and that the mere fact that the evidence might indicate propensity does not invalidate its admissibility where it is important explanatory evidence.

The court also considered the balance between probative value and prejudicial effect, concluding that the trial judge was in the best position to weigh this and that the probative value was substantial and not outweighed by unfair prejudice. The court noted that the trial judge’s decision to admit the evidence differed from a previous judge’s ruling but found no reason to interfere.

Regarding the summing up, the court found that the judge correctly directed the jury that the prosecution needed to prove an agreement between the two appellants, regardless of whether others were involved. This direction was clear and fair, addressing the real issue in the case and did not prejudice Appellant B.

Overall, the court concluded that the evidence was properly admitted and that the convictions were safe, supported by overwhelming circumstantial evidence.

Holding and Implications

The court DISMISSED THE APPEALS of both appellants against their convictions for conspiracy to burgle.

The court also refused the renewed application for leave to appeal on the additional ground presented by Appellant B regarding the summing up. The decision confirms the admissibility of bad character evidence under section 101(1)(c) as important explanatory evidence in cases involving gang-related criminal activity and clarifies that a jury may be properly directed that a conspiracy charge alleging involvement "with others unknown" does not require proof of those others' involvement.

The ruling has the direct effect of upholding the convictions and sentences of the appellants. The court did not establish new legal precedent but applied existing principles to the facts of this case.