Hanson, R. v

Evidence of a defendant’s bad character is not admitted routinely. Under the Criminal Justice Act 2003, previous convictions may establish propensity only where their number, nature and circumstances justify that inference and the propensity makes guilt more likely.

Similarity of description or statutory category is neither exhaustive nor automatically sufficient. A judge must consider unfairness, including the age and gravity of the convictions, their similarity to the charge, and the strength of the remaining prosecution evidence. Propensity for untruthfulness is distinct from dishonesty. Where propensity evidence is admitted, the jury must be warned against treating it as proof of guilt.

These were three applications for leave to appeal against conviction heard together as a guideline case on the new bad-character provisions in the Criminal Justice Act 2003.

Hanson pleaded guilty to theft after a ruling that some previous burglary and dwelling-theft convictions were admissible. Gilmore was convicted of theft after recent shoplifting convictions were admitted. Pickstone was convicted of sexual offences after an earlier indecent-assault conviction was admitted.

Each applicant challenged the admissibility of the previous convictions, or the procedure by which they were admitted. The central question was how trial judges should decide prosecution applications to adduce bad-character evidence through the statutory gateways.

1. All three applications for leave to appeal against conviction were refused. The court gave guidance on the operation of sections 98 to 113 of the Criminal Justice Act 2003. The statutory purpose is to assist evidence-based convictions of the guilty without exposing the innocent to conviction through prejudice.

2. For the propensity gateway in section 101(1)(d), the judge should ask: whether the convictions establish a propensity to commit offences of the kind charged; whether that propensity makes guilt more likely; and whether reliance on the convictions would be unjust or render the proceedings unfair. A conviction of the same description or category may assist, but is neither necessary nor sufficient. A single conviction will often be insufficient, though it may demonstrate unusual behaviour or have particular probative force.

3. Fairness requires examination of individual convictions where necessary. Relevant matters include their age, the date of commission, similarity, gravity and the strength of the other prosecution evidence. Previous convictions cannot bolster a weak prosecution case. Propensity to be untruthful is not the same as propensity to be dishonest; it will ordinarily require evidence of a disbelieved account in the earlier case or conduct involving false representations.

4. An interview allegation capable of impugning a complainant’s character may engage section 101(1)(g). By contrast, the false-impression gateway requires an impression about the defendant. The prosecution must identify its gateway and, where it relies on the circumstances of convictions, give sufficient particulars. A jury receiving propensity evidence must be clearly warned not to treat it as proof of guilt or untruthfulness.

5. Hanson’s ruling was overbroad because some theft-category offences did not, without more, demonstrate propensity to burgle or steal. However, his burglary and dwelling-theft convictions were properly admissible, the remaining evidence was strong, and his guilty plea left no basis to challenge a safe conviction. Gilmore’s recent shoplifting convictions established a persistent propensity to steal. Pickstone’s earlier sexual conviction was admissible for propensity and following his attack on the complainant’s character; its age did not make admission unfair.

• Court of Appeal (Criminal Division): In this guideline judgment, the court refused the three applications for leave to appeal against conviction: [2005] EWCA Crim 824.
• Bradford Crown Court: Hanson pleaded guilty to theft after a pre-trial bad-character ruling.
• Wood Green Crown Court: Gilmore was convicted of theft after trial.
• Wolverhampton Crown Court: Pickstone was convicted of indecent assault and rape after trial.