Factual and Procedural Background
This opinion addresses three applications heard together concerning the admissibility of evidence of a defendant's bad character under sections 98 to 113 of the Criminal Justice Act 2003, which replaced prior common law rules. The cases involve the Crown seeking to rely on evidence of previous convictions to establish propensity to commit offences or untruthfulness.
The court first outlines general principles on how trial judges should approach such evidence, focusing on the statutory gateways for admissibility, especially section 101(1)(d), (f), and (g). The applications concern whether previous convictions are admissible to show propensity and the fairness of admitting such evidence.
Three individual cases are considered: the first involved an applicant convicted of theft following a pre-trial ruling admitting previous convictions for dishonesty; the second concerned a conviction for theft with contested possession of stolen goods and admission of shoplifting convictions; the third involved convictions for indecent assault and rape where a prior sexual offence conviction was admitted to show propensity and to rebut an attack on the complainant's character.
Legal Issues Presented
- How should trial judges apply the new statutory provisions governing admissibility of bad character evidence under the Criminal Justice Act 2003?
- Whether evidence of previous convictions is admissible to establish a defendant’s propensity to commit offences of the kind charged or to be untruthful.
- Whether admitting such evidence would render the proceedings unfair or unjust under sections 101(3) and 103(3) of the Act.
- How the statutory gateways, particularly section 101(1)(d), (f), and (g), apply to evidence of previous convictions.
- The extent to which procedural requirements, such as notice of intention to rely on bad character evidence, affect admissibility.
- The role of the judge’s directions to the jury regarding the use and weight of bad character evidence.
Arguments of the Parties
Appellant's Arguments
- In the first case, the appellant argued that his previous convictions for dishonesty did not demonstrate a propensity to commit burglary or to be untruthful, and that even if admissible under gateway (d), the evidence should be excluded as unjust under section 103(3).
- In the second case, the defence objected to the Crown’s failure to provide written notice of intention to rely on previous convictions but conceded no prejudice arose.
- In the third case, the defence challenged the admission of the prior conviction on grounds including lapse of time, the spent status of the conviction, and the applicability of pre-2003 Act law to interview statements, arguing for exclusion under section 101(3).
- Criticisms were also made of the trial judge’s summing-up in relation to reasons for admission of bad character evidence and the adequacy of directions regarding credibility and the social services’ involvement.
Prosecution's Arguments
- The Crown submitted that previous convictions were relevant to important matters in issue, such as propensity to commit offences of the kind charged and propensity to be untruthful, justifying admissibility under section 101(1)(d).
- It was contended that the evidence was probative and that the statutory gateways were properly engaged.
- The Crown maintained that any procedural irregularities, such as failure to give written notice, did not prejudice the defence and were properly cured by the court’s discretion.
- The Crown argued that the passage of time since previous convictions did not render admission unjust where propensity remained relevant.
- It was submitted that appropriate jury directions would safeguard fairness and that the evidence was critical to the prosecution’s case.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| DPP v P [1991] 2 AC 447 |
Use of previous convictions to establish propensity; the probative force of convictions with unusual behaviour or significant modus operandi features. |
Referenced to illustrate when a single conviction may demonstrate propensity, especially for unusual offences like child sexual abuse or fire setting. |
| R v Makanjuola (1995) 2 Cr App R 469 |
Standard of appellate review for trial judge’s discretion on admissibility of bad character evidence. |
The court stated it would only interfere if the trial judge’s decision was plainly wrong or unreasonably exercised discretion. |
| R v Chalkley and Jeffries [1998] 2 Cr App R 79 |
Effect of guilty plea following ruling of admissibility of bad character evidence on appeal prospects. |
Held that an appeal against conviction is unlikely to be entertained after a guilty plea following such a ruling. |
| R v Bailey, Brewin and Ghangi [2001] EWCA 733 |
Considerations concerning appeals against conviction following guilty pleas and admissibility of bad character evidence. |
Referenced in rejecting the appellant’s submission that his guilty plea afforded a basis for appeal. |
| Attorney-General's Reference No 2 of 2001 [2004] 2 AC 72 |
Comments on appeals and admissibility of bad character evidence. |
Used to support the view that the appellant’s guilty plea did not provide grounds for appeal. |
| R v Bradley [2005] EWCA Crim 20 |
Application of the 2003 Act provisions to trials after 15 December 2004 regardless of institution date. |
Clarified the temporal application of the new provisions, relevant to the second case’s procedural issues. |
Court's Reasoning and Analysis
The court began by emphasizing Parliament’s intent in the Criminal Justice Act 2003 to facilitate evidence-based convictions while avoiding prejudice to the innocent. It noted that prosecution applications to admit bad character evidence should be carefully considered and not routine.
The court explained the statutory framework, focusing on section 101(1) gateways, especially (d), (f), and (g), and the definitions of propensity under section 103. It identified three key questions for judges when propensity is relied on: whether convictions establish propensity, whether propensity makes guilt more likely, and whether admission would be unjust or unfair.
The court stressed that the number and nature of convictions affect the strength of propensity evidence, with single convictions only sometimes sufficient if showing unusual behaviour or significant similarities. It clarified that trial judges must assess each conviction individually and consider factors such as similarity, gravity, and strength of the prosecution case.
The court underscored the stronger wording of section 101(3) ("must not admit") compared to prior law and advised caution to ensure fairness. It also highlighted that old convictions without special features are less likely to be admissible unless showing continuing propensity.
Regarding procedural matters, the court approved the exercise of discretion to allow late or oral notice where no prejudice arises and emphasized the need for frankness from both parties in disclosing circumstances of previous convictions.
In the individual cases, the court found:
- In the first case, although the trial judge erred in some analysis of the convictions, the ruling admitting convictions relevant to propensity to commit burglary was substantively correct. The judge properly excluded evidence on propensity to be untruthful. The strong other evidence and appropriate jury directions ensured fairness. The guilty plea barred appeal.
- In the second case, the judge correctly exercised discretion regarding notice and properly admitted recent shoplifting convictions to show propensity to steal. The evidence was relevant to the issue of innocent possession. The conviction was safe and appeal refused.
- In the third case, the judge correctly admitted the prior sexual offence conviction under gateways (d) and (g), considering lapse of time and probative value. The court rejected arguments based on the timing of the interview and the spent status of the conviction. Criticisms of the summing-up were not sufficient to render the verdict unsafe. The appeal was refused.
The court emphasized the importance of clear jury directions to guard against undue reliance on bad character evidence, instructing that propensity evidence is only one factor and does not prove guilt or untruthfulness by itself.
Holding and Implications
The court REFUSED LEAVE TO APPEAL in all three applications, upholding the convictions and the trial judges’ rulings on admissibility of bad character evidence.
The decision confirms the proper application of the Criminal Justice Act 2003 provisions on bad character evidence, endorsing a careful, fact-specific approach by trial judges that balances probative value against fairness. It clarifies procedural discretion in notice requirements and underscores the limited circumstances in which previous convictions may be excluded. The ruling does not establish new precedent beyond confirming and explicating the statutory framework and its application to the facts of these cases.