REGINA v DM

Factual and Procedural Background

The Appellant, anonymised as the Applicant, was due to stand trial at a Crown Court on three counts alleging robbery, possession of a firearm during the commission of an offence, and possession of a firearm when prohibited. The case involved two separate robberies: one in The City of Leeds and another in Banff, Scotland. The Applicant was alleged to have committed the Leeds robbery on 24th November 2006, involving a man with a sawn-off shotgun and a balaclava, near a corner shop in Rothwell. Witnesses reported seeing a woman and two children in a red Vauxhall Astra near the scene, with a vehicle registration similar but not identical to that of the Applicant's car.

The Applicant had already been tried in Scotland for the Banff robbery on 27th November 2006, which involved similar circumstances and a man with a sawn-off shotgun and balaclava. The Scottish jury returned a verdict of "not proven." The Applicant was known to have been in Banff at the time but there was no evidence linking the Applicant's vehicle to the Banff robbery; instead, evidence suggested a different vehicle and robber. The prosecution sought to introduce evidence of the Banff robbery to strengthen the case for the Leeds robbery under the Criminal Justice Act 2003.

The trial judge ruled on the admissibility of the Banff evidence, initially declining to admit it on the basis of propensity but admitting it on the basis that the combined evidence of both robberies strengthened the case against the Applicant for the Leeds offence. This interlocutory appeal challenges that ruling.

Legal Issues Presented

1. Whether evidence of the Banff robbery, for which the Applicant was previously tried and found "not proven," is admissible to prove guilt in relation to the Leeds robbery under Part II of the Criminal Justice Act 2003.
2. Whether such evidence should be admitted on the basis of propensity or to strengthen other evidence as similar fact evidence.
3. Whether admitting the Banff evidence would have an adverse effect on the fairness of the proceedings under section 101(3) of the Criminal Justice Act 2003.
4. The appropriate jury directions required when evidence of other offences is admitted to strengthen the case rather than to show propensity.

Arguments of the Parties

Prosecution's Arguments

• The Banff robbery evidence demonstrates a propensity to commit robbery and is therefore admissible to prove the Leeds robbery.
• Alternatively, the evidence of both robberies together strengthens the case against the Applicant for the Leeds offence by showing the unlikelihood of coincidence.
• The evidence is relevant to an important matter in issue, namely the identity of the robber in Leeds.

Applicant's Arguments

• The Applicant disputes the evidence of participation in the Leeds robbery, including vehicle noise and victim accounts.
• The prior verdict of "not proven" in Scotland should prevent the Banff evidence from being admitted as it would lead to a satellite trial and prejudice the fairness of the proceedings.
• The jury would be required to scrutinize the Banff evidence in detail, diverting focus from the Leeds offence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Hanson [2005] 2 Cr App R 21	Definition and application of propensity evidence; a single previous conviction may not establish propensity.	Distinguished from the case at hand; the court emphasized that this case was not about propensity but about strengthening evidence as a whole.
Wallace [2007] 2 Cr App R 30	Admitting evidence of multiple offences together to strengthen the case on each charge, not to show propensity.	Used to illustrate the distinction between propensity and cumulative evidence strengthening guilt.
R v Chopra [2006] EWCA Crim 2133	Evidence of multiple similar complaints can strengthen the case on individual charges without showing propensity.	Cited to support the approach that evidence may be admitted to show unlikelihood of coincidence rather than propensity.

Court's Reasoning and Analysis

The court began by identifying that the Banff robbery evidence constituted "bad character" evidence under section 98 of the Criminal Justice Act 2003 and was therefore subject to the statutory regime governing admissibility. The court acknowledged that while the evidence was relevant to an important matter in issue—whether the Applicant committed the Leeds robbery—it was not admitted to show propensity but rather to strengthen the prosecution's case by demonstrating the unlikelihood of coincidence given the similarities and timing of the two offences.

The court carefully distinguished between evidence admitted to show propensity and evidence admitted to strengthen other evidence, emphasizing that the latter does not require propensity directions and involves the jury considering all evidence as a whole. The court relied on precedents such as Hanson, Wallace, and Chopra to clarify this distinction and the appropriate legal approach.

However, the court found that admitting the Banff evidence would have an adverse effect on the fairness of the proceedings. The prior Scottish verdict of "not proven" created a risk of a satellite trial, as the jury would have to scrutinize the Banff evidence in detail and potentially reject the prior verdict to use the evidence in the Leeds trial. This risk of diverting the jury's focus and complicating the trial led the court to conclude that the evidence should not be admitted under section 101(3) of the Criminal Justice Act 2003.

The court acknowledged the trial judge's careful handling of the issue but noted the absence of reasoning supporting her conclusion that admission would not affect fairness. Exercising appellate authority, the court substituted its view and allowed the appeal to reverse the admission of the Banff evidence.

The court clarified that its ruling did not affect the admissibility of other evidence relating to the Applicant's connection to firearms found in Scotland, which remained admissible in relation to the Leeds robbery.

Holding and Implications

The court ALLOWED THE APPEAL and reversed the trial judge's order admitting evidence relating to the Banff robbery to prove the Leeds offence.

This decision means that the prosecution cannot rely on evidence of the Banff robbery to strengthen its case against the Applicant for the Leeds robbery. The ruling protects the fairness of the trial by preventing a satellite trial on the Banff offence, given the prior "not proven" verdict and the complexity of the evidence. No new legal precedent was established; rather, the court applied existing principles to the particular facts to safeguard procedural fairness.