Highton & Ors, R v

Under Criminal Justice Act 2003, the statutory gateway through which evidence of a defendant’s bad character becomes admissible is distinct from the use to which the evidence may then be put. Once admitted through a gateway in section 101(1), it may be used for any purpose for which it is relevant, including propensity as well as credibility.

Admission through section 101(1)(g), following an attack on another person’s character, does not confine the evidence to credibility. Its relevance and fairness must nevertheless be assessed, and the jury must receive clear directions against treating previous convictions as proving guilt or untruthfulness by themselves.

Three conjoined appeals concerned convictions obtained after the admission of evidence of the defendants’ bad character under Criminal Justice Act 2003.

• Highton was convicted of kidnapping, robbery and theft after the jury heard his previous convictions following an attack on the complainants’ character.
• Van-Nguyen was convicted of cultivating cannabis. Evidence of his heroin use was admitted and became a substantial focus of the trial, although the live issue was whether he participated in cultivation.
• Carp was convicted of two assaults. His previous convictions were admitted after he obtained permission to cross-examine the complainant about her violent background.

The common issue was whether bad-character evidence admitted under section 101(1)(g) could be used as propensity evidence, or only as evidence bearing on credibility.

1. The appeals were allowed in part. Van-Nguyen’s conviction was unsafe. Highton’s and Carp’s appeals were dismissed.

2. Section 101(1) of the Criminal Justice Act 2003 governs admissibility, not the subsequent use of admitted evidence. A defendant’s bad character must pass through one of the statutory gateways. Once it has done so, its use depends on its relevance to the issues in the particular case. Evidence admitted under section 101(1)(g) may therefore bear on propensity to commit offences of the charged kind as well as on credibility.

3. The court approved the need for careful jury directions identified in R v Hansen [2005] EWCA Crim 824 and R v Edwards, Fysh, Duggen and Chohan [2005] EWCA Crim 1813. The jury must be told why it has heard the evidence, how it may assist, and that convictions cannot by themselves prove guilt. Whether a conviction supports a propensity to be untruthful depends on its nature and circumstances.

4. Highton’s convictions were properly admissible under section 101(1)(g). Although the trial judge erred by directing on propensity after indicating that no such direction would be given, the convictions for violence and offensive-weapons offences were capable of supporting propensity. The careful limiting direction meant that the verdicts were not unsafe.

5. In Van-Nguyen’s case, knowledge that the plants were cannabis was not an important matter in issue once he accepted that they were probably a controlled drug. Heroin use did not rationally show participation in cultivation or an enhanced ability to identify cannabis. Its admission and the absence of a direction on its strictly limited relevance distorted the trial. The conviction was unsafe.

6. In Carp’s case, the prior convictions were admissible under section 101(1)(g) and could bear on propensity, subject to relevance and fairness. Convictions for obtaining by deception supported untruthfulness; the Recorder’s directions, though capable of greater detail, adequately warned against undue reliance. The convictions remained safe.

The court also expressed a provisional view that section 78 of the Police and Criminal Evidence Act 1984 may provide an additional safeguard when bad-character evidence is considered.

• Court of Appeal (Criminal Division): Van-Nguyen’s appeal against conviction from the Manchester Crown Court was allowed because the conviction was unsafe.
• Court of Appeal (Criminal Division): Highton’s appeal against convictions from the Oxford Crown Court was dismissed.
• Court of Appeal (Criminal Division): Carp’s appeal against convictions from the Taunton Crown Court was dismissed.