Gadsby, R v

Evidence of another person’s criminal propensity may be relevant even where that person is neither a party nor a witness, and the defence does not positively allege that person committed the offence. Its admissibility depends on whether, in its particular context, it could rationally make a fact in issue more or less probable.

A remote conviction arising from materially different circumstances may lack that relevance. Under Criminal Appeal Act 1968, fresh evidence which would have been irrelevant at trial provides no basis for admitting it on appeal. In attempted-murder sentencing, careful premeditation, preparation and a high likelihood of death can justify a severe sentence despite the absence of injury or financial gain.

The appellant was convicted at the Crown Court sitting at Leicester of attempting to murder his wife by placing a timed device containing petrol beneath her bed. He was sentenced to 14 years’ imprisonment.

At trial, the defence sought, without prior notice, to adduce the appellant’s sister’s old conviction for arson. The judge excluded it. On appeal, the appellant sought to challenge that ruling and to adduce fuller fresh evidence of the conviction. He also criticised the summing up and contended that the sentence was manifestly excessive.

The central issue was whether the sister’s remote arson conviction was relevant to the possibility that she, rather than the appellant, had committed the attempted murder.

1. The appeals against conviction and sentence were dismissed. The trial judge reached the correct result in excluding the proposed evidence of the sister’s arson conviction, although some of the reasons given for exclusion were incorrect.

2. A third party’s bad character may be relevant to an issue in a criminal trial although that person is neither a witness nor a party. Nor must the defence positively allege that the third party committed the offence. Following the relevance approach in Randall [2003] UK HL 69, the question is whether the evidence could rationally increase or diminish the probability of a fact requiring proof. Evidence of a third party’s opportunity, motive or propensity may therefore be admissible where it bears on whether the defendant committed the offence.

3. Here, the sister’s conviction did not show a propensity to commit the charged offence. It was over 20 years old, followed a domestic argument when she was young, and concerned a small fire to a toy box. Those circumstances were materially different from a planned attempt to cause a lethal petrol explosion beneath the complainant’s bed. The conviction could not make it more probable that the sister was responsible. It was therefore irrelevant and was rightly excluded. The fresh-evidence application consequently failed under section 23 of the Criminal Appeal Act 1968.

4. The court nevertheless observed that criminal trials require proper pre-trial preparation. Absent exceptional circumstances, a judge may take a firm approach to a late attempt to introduce new issues or evidence, while considering the interests of the defendant, witnesses, victim and the timely conduct of the trial.

5. The summing up fairly left the prosecution’s burden and the alternative persons with access to the house before the jury. Applying the sentencing considerations reviewed in Ellis (1995) 16 Cr App R (S) 773, the deliberate preparation and highly lethal intended method justified the 14-year sentence. It was not manifestly excessive.

• Court of Appeal (Criminal Division): The appeals against conviction and sentence were dismissed: [2005] EWCA Crim 3206.
• Crown Court sitting at Leicester: The appellant was convicted of attempted murder and sentenced to 14 years’ imprisonment.