Regina v. Randall

The House considered whether, in a joint trial in which each accused blames the other, an accused may rely on the propensity to violence of his co-accused. The court held that evidence of a co-accused's bad character or propensity may be relevant to the issues between the Crown and the accused tendering that evidence, and is not automatically irrelevant. The court applied the relevance test (whether the evidence makes a fact in issue more or less probable) and held that common sense and experience may make propensity evidence probative in such circumstances. The court also noted the statutory position under section 1(3) of the Criminal Evidence Act 1898, the limits on a judge's discretion to exclude relevant evidence between co-accused, and relevant authorities such as Lowery v The Queen and R v Neale. On the facts, the judge at trial misdirected the jury by telling them to ignore Glean's propensity to violence except for credibility, and the Court of Appeal had been correct to order a retrial; the Crown's appeal was dismissed.

Background and facts:

On 8 May 2001 Michael Barber suffered multiple head injuries and later died. Two men, the appellant Edward Randall and his co-accused Nicholas Glean, were tried jointly at St Albans Crown Court. Each accused blamed the other for the fatal injuries (a cut-throat defence). The jury convicted Randall of manslaughter and acquitted Glean; Randall was sentenced to eight years' imprisonment.

Procedural posture:

• The Court of Appeal (Kennedy LJ) held that evidence of Glean's bad character was relevant not only to credibility but to the comparative probability of the competing accounts and ordered a retrial: R v Randall [2003] 2 Cr App R 442; see also [2003] EWCA Crim 436. The Crown appealed to the House of Lords and sought to overturn that decision.

Issues:

• Whether, where two accused are jointly charged and each blames the other, evidence of the criminal propensity or bad character of one accused may be relied on by the other.
• How the general principle that previous convictions are "normally" irrelevant is to be applied in joint-trial, cut-throat defence situations.
• The effect of section 1(3) of the Criminal Evidence Act 1898 and the limits on a judge's discretion to exclude evidence between co-accused.

Reasoning:

The House rejected a proposition that evidence of a co-accused's propensity can never be relevant. Applying a common-sense relevance test (whether evidence makes a fact in issue more or less probable), the court held that propensity evidence may on occasions be probative of which of two antagonistic accounts is more likely. The court reviewed authority (including Lowery v The Queen, R v Neale and R v Murray), explained that Devlin J's dictum in R v Miller establishes a general rule but not an absolute bar, and observed that the statutory protection in section 1(3) of the Criminal Evidence Act 1898 had been lost by both accused because each gave evidence against the other. The court further noted that the discretionary exclusion of evidence for prejudice does not apply between co-accused in a joint trial. It followed that the trial judge's direction limiting the use of Glean's convictions to credibility was a material misdirection in the circumstances.

Relief sought and outcome:

The Crown sought to overturn the Court of Appeal's order for a retrial. The House dismissed the Crown's appeal and upheld the Court of Appeal's conclusion that the judge's direction was wrong and that the evidence could be relevant to the comparative probabilities.

Appeal dismissed. The House held that where two accused give antagonistic accounts, evidence of a co-accused's propensity to violence can be relevant to the question which account is more probable; the trial judge's direction excluding such relevance (save for credibility) was a material misdirection and the Court of Appeal was right to order a retrial.

Appeal to the Court of Appeal (Criminal Division) [2003] EWCA Crim 436; Court of Appeal reported as R v Randall [2003] 2 Cr App R 442 (Kennedy LJ allowed appeal and ordered a retrial); Crown appealed to the House of Lords which dismissed the Crown's appeal.