Bovell, R. v

Evidence of another person's bad character under section 100 of the Criminal Justice Act 2003 must have substantial probative value. An untested allegation that was withdrawn, and whose reliability would require extensive collateral investigation, is highly unlikely to satisfy that requirement. A trial judge should avoid satellite inquiries into such matters.

Where a defendant attacks another person's character, the fairness discretion under section 101(3) is not determined by the defendant's asserted subjective motive for making the attack. The court assesses the effect on the fairness of the proceedings objectively and in context.

Two unrelated applications for leave to appeal against conviction were heard together because each concerned the bad-character provisions of the Criminal Justice Act 2003.

Bovell was convicted at Woolwich Crown Court of wounding with intent after a shopkeeper was stabbed. He relied on self-defence and challenged the exclusion of the complainant's old robbery conviction and a later, withdrawn allegation of wounding.

Dowds was convicted at Nottingham Crown Court of burglary. During his evidence he alleged that his co-accused had committed another burglary. The trial judge admitted Dowds's previous burglary convictions after treating that evidence as an attack on the co-accused's character.

The central issues were whether the respective bad-character rulings could render either conviction unsafe.

1. Both applications were dismissed. Neither applicant established an arguable basis for challenging the safety of his conviction.
2. In Bovell's case, the court accepted that knowledge that the complainant had carried a knife during the earlier robbery might have affected the trial judge's assessment of that conviction. It nevertheless regarded it as extremely unlikely that the withdrawn 2001 allegation would have been admitted. The mere making of an allegation was of doubtful capacity to amount to evidence within section 100(1) of the Criminal Justice Act 2003, particularly after its withdrawal and the concerns about the accuser's credibility and supporting evidence.
3. Admission of the 2001 allegation would also have required a collateral inquiry into those matters. Applying the guidance in R v Hanson, Pickstone and Gilmore [2005] EWCA Crim 824, that was an inquiry a trial judge should be discouraged from undertaking. In any event, even if both matters had been admitted, the court was sure that they would not have affected the verdict. The jury would also have learned of Bovell's relevant convictions, and there was powerful independent evidence against him.
4. In Dowds's case, his evidence plainly attacked his co-accused's character within section 101(1)(g). The fairness discretion in section 101(3) did not require an investigation into his subjective reason for giving that evidence. His account was necessarily adverse to the co-accused and formed part of a defence that sought to place sole responsibility on that person. The Recorder's admission of Dowds's previous burglaries was therefore correct. The court added, without deciding the point, that the convictions could also have been admissible to correct a false impression under section 101(1)(f).

• Court of Appeal (Criminal Division): applications by Bovell and Dowds for leave to appeal against conviction were dismissed.
• Woolwich Crown Court: Bovell was convicted of wounding with intent on 27 January 2005.
• Nottingham Crown Court: Dowds was convicted of burglary on 28 January 2005.