Factual and Procedural Background
On 15th August 2005, in the Crown Court at Lewes, two appellants were convicted of robbery and each sentenced to four years' imprisonment. Prior to the robbery trial, one appellant pleaded guilty to breaching an anti-social behaviour order (ASBO) and to resisting arrest, receiving sentences totaling four years and nine months. Both appellants appealed their convictions by leave of a single judge, and one appellant's application for leave to appeal against sentence was referred to the court. This judgment deals solely with the appeals against conviction.
On 16th January 2005, the complainant, a taxi driver, picked up two men and two women and drove them to an address in the Moulescoomb Estate near Nottingham. After a fare was paid, one woman dropped some change in the taxi. The group searched for the money but found nothing. The women left and entered a nearby house. One of the men exited the taxi, opened the driver's door, and under the pretext of looking for the money, removed the complainant's money bag. The second man threatened the complainant with a knife. They took £130, the complainant's wallet, bank cards, and an AA membership card.
The complainant observed the men enter a nearby house (No 96) and maintained watch until police arrived. Police found the appellants inside No 96 along with the complainant's belongings. One appellant was found hiding under a bed, the other under a duvet on a bed. One appellant resisted arrest and escaped through a window before being caught. A knife was found in the house but there was no forensic evidence linking it to the appellants.
The prosecution alleged a joint enterprise robbery. The defence was alibi, though no alibi notices were served. Both appellants made no comment during interviews, and the complainant failed to identify them in an identification procedure.
A former girlfriend of one appellant provided a police statement placing the appellants at the house that night but later became a hostile witness, denying the truth of her statement. Her written statement was admitted under the hearsay provisions of the Criminal Justice Act 2003. Neither appellant gave evidence at trial. One appellant's mother testified that she had spoken to him by phone around the time of the robbery.
Before trial, the prosecution gave notice of intention to admit previous convictions under section 101(d) of the Criminal Justice Act 2003. The notice was late but served before trial. Both appellants had extensive histories of convictions for robbery and other dishonesty offences, some committed jointly. The prosecution sought to admit these convictions to demonstrate propensity.
Legal Issues Presented
- Whether the trial judge erred in admitting a broad range of previous convictions, including many offences of dishonesty beyond robbery, to demonstrate the appellants' propensity to commit the offence charged.
- Whether the admission of such evidence rendered the convictions unsafe and the trial unfair.
- Whether the appeals against conviction should be allowed on the basis of the trial judge's approach to propensity evidence under the Criminal Justice Act 2003.
- Whether the sentence for breach of the anti-social behaviour order was excessive and should be reduced.
Arguments of the Parties
Appellants' Arguments
- The trial judge took an overly broad approach to propensity, admitting all convictions for dishonesty rather than limiting to robbery convictions.
- The Crown's initial narrower application to admit only robbery and joint enterprise convictions was correct and should have been upheld.
- Admitting a wide range of dishonesty convictions was prejudicial and made the proceedings unfair.
- The late notice of the extended application prejudiced the defence by limiting their ability to prepare.
- The joint enterprise convictions from 2001 were insufficient to demonstrate a propensity to offend together.
Crown's Arguments
- The Crown accepted that extending the application to all dishonesty offences was mistaken and expressed regret for following the judge's invitation to do so.
- The Crown maintained that the convictions for robbery and joint enterprise should have been admitted.
- The Crown submitted that the evidence against the appellants was strong and that the convictions were safe despite the admission of the wider convictions.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Hanson [2005] EWCA Crim 824 |
Guidance on admitting propensity evidence under the Criminal Justice Act 2003, including the need to consider similarity and fairness. |
The court applied Hanson's three questions on propensity evidence and emphasized the need for similarity and fairness in admitting prior convictions. It found the trial judge erred by admitting too broad a range of convictions without proper consideration of probative value and prejudice. |
Court's Reasoning and Analysis
The court analyzed the trial judge's approach to admitting previous convictions under section 101(d) of the Criminal Justice Act 2003. The judge initially admitted only robbery and joint enterprise convictions but, following his own suggestion, allowed the Crown to extend the application to all offences of dishonesty. The court found this approach overly broad and inconsistent with the guidance in Hanson, which requires that prior convictions admitted to show propensity must have some degree of similarity to the offence charged and must not render the trial unfair.
The trial judge failed to properly assess whether the broader category of dishonesty offences made it more likely that the appellants committed the robbery charged. Instead, he admitted all theft-related convictions as evidence of a general propensity to acquire property unlawfully, which the court held had limited probative value and was potentially prejudicial.
Although the judge acknowledged the prejudicial nature of admitting previous convictions, he did not sufficiently weigh this against the fairness of the proceedings as required by section 101(3) of the Act. The court concluded that the judge's failure to balance probative value against prejudice constituted an error.
Despite this error, the court found the evidence against the appellants strong, including the complainant's observations, the presence of the appellants in the house with the stolen property, and the hearsay evidence admitted from a hostile witness. The appellants did not present an alternative explanation or positive defence.
The court considered that if the Crown had limited its application to admit only robbery and joint enterprise convictions, the trial judge would have been justified in admitting them, and the outcome would have been the same.
Regarding sentence, the court found the nine-month consecutive sentence for breach of the ASBO excessive and reduced it to three months, maintaining the total effective sentence at four years and three months.
Holding and Implications
The court DISMISSED the appeals against conviction, holding that despite the trial judge's error in admitting a broad range of prior convictions, the convictions were safe due to the strength of the evidence.
The appeal against sentence was ALLOWED IN PART, reducing the consecutive sentence for breach of the ASBO from nine months to three months, resulting in an effective total sentence of four years and three months.
This decision confirms the necessity for trial judges to carefully balance the probative value of prior convictions against their prejudicial effect in accordance with the Criminal Justice Act 2003 and the guidance in Hanson. However, it also demonstrates that an appellate court may uphold convictions where the overall evidence is strong despite errors in admitting propensity evidence. No new precedent was established beyond the application of existing legal principles.