Robinson v R.

In a joint cut-throat trial, evidence of one defendant’s bad character elicited by a co-defendant need not be excluded from the jury’s consideration of that defendant’s case merely because the prosecution could not itself have adduced it. The trial judge must give directions that are fair to every defendant and avoid needlessly perplexing the jury.

A direction that the jury may consider all the evidence, while assessing each defendant’s interest in blaming the other, may be fair. An alternative direction requiring the jury to disregard the evidence may also be appropriate in another case. The jury need only be sure of the ingredients of the offence. They need not be sure of every disputed item of prejudicial evidence considered in reaching their verdict.

The appellant was convicted of murder at the Central Criminal Court before HHJ Moss QC and a jury. His former girlfriend, Maitland, was tried with him for murder and separately charged with perverting the course of justice. After her acquittal on the murder count, she relied on duress in answer to the remaining count and gave evidence portraying the appellant as violent and abusive.

The defences were mutually accusatory. The appellant’s sole ground of appeal challenged the trial judge’s direction that the jury should decide each defendant’s case on all the evidence, including the co-defendant’s evidence. The central issue was whether the jury should instead have been directed to ignore bad-character evidence elicited by Maitland when considering the appellant’s case.

1. Appeal dismissed. The judge’s direction was not a misdirection and the appellant received a fair trial.

2. In a cut-throat trial, evidence of D1’s propensity which D2 has elicited and which is relevant to an issue between the Crown and D2 does not necessarily have to be ignored when the jury consider the case against D1. The court followed the approach stated by Lord Steyn in Randall [2003] UKHL 69 and applied in Price [2004] EWCA Crim 1359. A direction allowing the jury to consider all the evidence, with such weight as they thought appropriate and bearing in mind each defendant’s interest in blaming the other, was lawful.

3. The decisions in Mertens and Murrell showed that an alternative direction requiring the jury to disregard such evidence may be permissible where fairness requires it. They did not make that direction mandatory or render Price wrong. The judge must tailor directions to the circumstances and to the interests of all defendants, while avoiding directions that needlessly perplex the jury.

4. On these facts, the proposed exclusionary direction would have required the jury to disregard Maitland’s account of abuse when assessing her credibility against the appellant, yet use it when considering her defence of duress. That would have created unhelpful mental gymnastics without real benefit to the appellant. Although it would have been better for the judge to discuss the issue with counsel before summing up, the absence of an objection reinforced the conclusion that the directions were fair.

5. The jury were required to be sure only that the ingredients of murder had been proved. They were not required to be sure of each disputed allegation of bad character, and no separate propensity direction was required. The court certified the requested point of law of general public importance, but refused leave to appeal to the House of Lords.

1. Court of Appeal (Criminal Division) — In [2005] EWCA Crim 3233, dismissed the appeal against conviction for murder. It certified a point of law of general public importance but refused leave to appeal to the House of Lords.

2. Central Criminal Court — On 28 April 2004, HHJ Moss QC and a jury convicted the appellant of murder.