Heffernan, R. v

Evidence of a previous burglary may be admitted as propensity evidence under Criminal Justice Act 2003, section 101(1)(d), notwithstanding its age and factual differences from the charge. The court must assess the fairness of admission in the evidential context as a whole, with particular regard to the elapsed time required by section 101(4).

Appellate intervention in a fact-specific bad-character ruling is limited. Guidance on jury directions is not statutory language and should be adapted to the issues at trial. Circumstantial DNA evidence and supporting descriptions may provide a prima facie case to answer.

The applicant was convicted at Blackfriars Crown Court of aggravated burglary, two counts of false imprisonment and unlawful wounding. He received a total sentence of 11 years’ imprisonment.

The prosecution alleged that he was one of two intruders. Its case depended on identification evidence, including a DNA match between the applicant and a balaclava recovered close to the scene. The defence said that the balaclava had previously been stolen from his van. The trial judge admitted a 1997 burglary conviction as propensity evidence.

After a single judge refused leave, the applicant renewed his application. He challenged the admission of the conviction, the ruling that there was a case to answer, and the jury direction on bad character.

1. The renewed application for leave to appeal against conviction was refused. There were no arguable grounds of appeal.

2. The trial judge had correctly directed himself on Criminal Justice Act 2003, section 101. The earlier burglary was capable of showing a propensity to burgle. Its age and differences from the charged offending were relevant considerations, but did not compel exclusion. The judge was entitled to conclude, on the prosecution evidence then available, that the case was not slender and that admission would not have such an adverse effect on fairness as to require exclusion under section 101(3).

3. The appellate court would not interfere with that fact-specific assessment absent error of law, principle, or a conclusion it could properly characterise as wrong. The judge’s observation that the DNA evidence placed the applicant at the scene was a recital of the prosecution case at the admissibility stage. The applicant’s explanation for the DNA had not then been given on oath.

4. There was also a case to answer independently of the bad-character ruling. The DNA evidence was powerful, and the descriptions, although differing in some respects, supplemented it. Together they provided a prima facie case suitable for the jury.

5. The jury direction was not defective. The guidance in R v Hanson was useful but was not statutory wording to be followed slavishly. A trial judge should tailor the direction to the actual issues. Asking whether the previous conviction established a propensity to burgle people’s homes was not impermissibly narrow on these facts.

• Court of Appeal (Criminal Division): renewed application for leave to appeal against conviction refused: [2006] EWCA Crim 2033.
• Single judge: leave to appeal against conviction refused.
• Blackfriars Crown Court: the applicant was convicted on 19 September 2005 of aggravated burglary, two counts of false imprisonment and unlawful wounding, and sentenced to 11 years’ imprisonment in total.