Randall, R v

In a joint criminal trial, a defendant may adduce evidence of a co-accused’s antecedent conduct to disprove the defendant’s own guilt if it is strictly relevant. The question is whether the evidence tends to make one co-accused’s account more probable than the other’s. In an exceptional cut-throat defence, a marked difference between the defendants’ relevant histories may therefore bear not only on credibility but also on the likelihood that either committed the charged violence.

The usual rule against propensity reasoning remains important. The court must exclude irrelevant material because it may seriously prejudice a co-accused. A direction which wrongly removes relevant defence evidence from the jury’s consideration, and thereby materially restricts the defence case, requires the conviction to be set aside.

Following a murder trial in the Crown Court at St Albans, Edward Peter Randall was convicted of manslaughter and sentenced to eight years’ imprisonment. His co-accused, Nicholas Glean, was acquitted.

Randall admitted a confrontation with the deceased and one kick to the head, but denied causing the fatal injuries and relied on self-defence. The defences were cut-throat: Randall contended that Glean had inflicted the fatal violence, while Glean inculpated Randall.

On appeal, Randall challenged the judge’s direction that Glean’s previous convictions were relevant only to Glean’s truthfulness and not to the likelihood that he had committed the offence. He also challenged the manslaughter direction. The central issue was whether Glean’s antecedent history was relevant to the competing accounts of responsibility for the fatal assault.

1. Appeal allowed; retrial ordered. The judge misdirected the jury by directing that Glean’s previous convictions were irrelevant to the likelihood that he committed the murder. That direction materially restricted Randall’s cut-throat defence.
2. The critical question was relevance. A defendant is entitled to adduce relevant evidence in disproof of guilt. In a case with co-accused, evidence may be relevant if it tends to show that one defendant’s account is more probable than the other’s. The court applied the principles in Lowery v R [1974] AC 85 and the summary in Thompson and others [1995] 2 Cr App R 589.
3. The normal rule against using previous offending to show propensity remained applicable and the relevance test had to be strictly applied, particularly because irrelevant material may prejudice a co-accused. However, this was an unusual case. Glean’s antecedent history of serious dishonesty and violence, contrasted with Randall’s minor record, could tend to make one competing account more probable than the other. It was relevant both to Glean’s credibility and to the substantive issue of who inflicted the fatal violence.
4. The misdirection was of considerable significance in light of the way Randall’s case had been advanced. The court therefore allowed the appeal and ordered a retrial. The second ground failed. Although the judge initially omitted manslaughter when directing on the law, the later comprehensive direction and flow chart showed that the jury understood the issue and the law.

• Court of Appeal (Criminal Division): Allowed Randall’s appeal against conviction and ordered a retrial.
• Crown Court at St Albans: Following a murder trial, convicted Randall of manslaughter and sentenced him to eight years’ imprisonment. Glean was acquitted.