Regina v. Randall (Respondents)(On Appeal from the Court of Appeal (Criminal Division)

In a joint criminal trial, evidence that one accused has a propensity for relevant misconduct may support a co-accused’s defence that the former committed the offence. Admissibility depends on logical relevance, assessed in the context of all the evidence through common sense and experience. Propensity evidence is usually irrelevant, but it is not invariably so.

Where such evidence is relevant to a fact in issue between the Crown and the accused relying on it, the jury need not be directed to disregard it when considering the case against the co-accused. Nor may the trial judge exclude relevant defence evidence merely because it prejudices the co-accused.

Two men were tried jointly for murder after a victim suffered fatal head injuries. Each admitted being near the relevant place but blamed the other for the fatal violence. One accused had a substantially more serious history involving violent burglaries and robbery, while the other had relatively minor convictions.

The trial judge directed the jury that the former’s previous offending was relevant only to credibility, and not to the likelihood that he had attacked the victim. The jury convicted the respondent of manslaughter and acquitted his co-accused.

The Court of Appeal allowed the respondent’s appeal and ordered a retrial: [2003] EWCA Crim 436. The Crown appealed. The certified question was whether, where jointly charged accused each blame the other, one may rely upon the other’s criminal propensity.

1. The Crown’s appeal was dismissed unanimously. Lord Steyn delivered the leading speech. Lord Bingham of Cornhill, Lord Hobhouse of Woodborough, Lord Scott of Foscote and Lord Rodger of Earlsferry agreed with his reasons.

2. Per Lord Steyn, evidence is relevant when it is capable of increasing or diminishing the probability of a fact requiring proof. Relevance is generally a matter of degree, assessed through common sense and experience. The general rule that previous misconduct is normally irrelevant does not establish that propensity can never be probative.

3. Per Lord Steyn, a co-accused’s propensity may be relevant where the accused blame one another and the evidence, considered with the whole case, makes one account more probable. A jury may sensibly consider a marked contrast between an accused with a relevant violent disposition and a co-accused without such a record. The proposition that propensity necessarily proves nothing would require juries to disregard common sense.

4. Lord Steyn treated Lowery v The Queen [1974] AC 85 as high authority that evidence of a co-accused’s propensity may support an accused’s case by making his version more probable. He qualified two aspects of its reasoning: evidence of potential aggressiveness could relate to criminal tendencies, and relevant propensity evidence need not depend upon the accused having put his own character in issue. The approach had been followed in R v Bracewell (1978) 68 Cr App R 44.

5. Per Lord Steyn, R v Neale (1977) 65 Cr App R 304 was distinguishable because the proposed evidence did not logically support the particular defence that the accused was absent. Its result was described as borderline. By contrast, R v Murray [1995] RTR 239 illustrated propensity evidence bearing in common sense upon the factual issue.

6. Both accused had given evidence against the other and had therefore lost the protection of section 1(3) of the Criminal Evidence Act 1898. A trial judge has no discretion, at one accused’s request, to exclude relevant evidence supporting another accused’s defence merely because its prejudicial effect exceeds its probative value.

7. Where a co-accused’s propensity is relevant to a fact in issue between the Crown and the accused relying upon it, the judge need not direct the jury to disregard that evidence when considering the case against the co-accused. Such a direction is not required by justice and would needlessly perplex the jury. The Court of Appeal had therefore stated the law correctly, and its order for a retrial remained effective.

1. House of Lords: The Crown’s appeal was dismissed unanimously. The Court of Appeal’s order for a retrial remained in force: [2003] UKHL 69.
2. Court of Appeal (Criminal Division): The respondent’s appeal against conviction was allowed because the trial judge had materially misdirected the jury about the relevance of the co-accused’s propensity. A retrial was ordered: [2003] EWCA Crim 436; [2003] 2 Cr App R 442.
3. Crown Court at St Albans: The respondent was convicted of manslaughter and sentenced to eight years’ imprisonment. His co-accused was acquitted.