Tully & Anor, R. v

Under the bad-character gateway in the Criminal Justice Act 2003, convictions in the same statutory description or category are not automatically admissible to prove propensity. The court must assess whether past offending is sufficiently similar to the charge to have real probative force. It must also decide whether the resulting prejudice would adversely affect the fairness of the individual trial.

A propensity to acquire property unlawfully by any means is too broad to make a robbery allegation more likely. The more closely earlier offending resembles the allegation, the greater its probative value. An erroneous admission of excessive bad-character evidence does not necessarily make a conviction unsafe, if the appellate court is sure that properly admissible evidence and the remaining case would have produced the same result.

The appellants were convicted at Lewes Crown Court of robbery. The prosecution alleged that they had jointly robbed a taxi driver shortly after travelling to the house in which they were later found. The trial judge admitted extensive evidence of both appellants’ previous convictions for robbery and other dishonesty offences under the Criminal Justice Act 2003.

Both appellants appealed against conviction, contending that the judge had adopted an impermissibly broad view of propensity and had thereby made the trial unfair. Wood also appealed against a consecutive nine-month sentence for breach of an anti-social behaviour order. The central questions were whether the bad-character ruling rendered the robbery convictions unsafe and whether Wood’s consecutive sentence was excessive.

1. The conviction appeals were dismissed. The judge had erred in admitting the wide range of dishonesty convictions. Although he had referred to the guidance in Hanson, [2005]EWCA Crim.824, he treated the theft category in section 103(2) as permitting admission of all convictions within it. That was wrong.

2. Convictions offered to prove propensity must have sufficient similarity to the charged offence to give them probative force. The statutory fact that offences share a description or category does not itself establish that quality. A general propensity to obtain others’ property unlawfully was too broad to make commission of this robbery more likely. Earlier robbery convictions, particularly those involving a knife to reinforce a threat, had substantially greater probative value.

3. The judge was also required by section 101(3) to assess the prejudicial effect of the proposed evidence on the fairness of this particular trial. The admission of many different dishonesty convictions was more prejudicial than the admission of a limited and specific group. The strength of the prosecution case did not remove the need for that assessment.

4. Nevertheless, the convictions were safe when the case was reviewed as a whole. There was strong evidence apart from the excessive bad-character evidence. The robbery convictions would properly have been admissible and would have demonstrated propensity to commit robbery. The court was sure that the outcome would have been the same. The court added, without deciding the point, that evidence of prior jointly committed offences might also have been admissible because joint enterprise was important at trial.

5. Wood’s sentence appeal was allowed in part. A consecutive nine-month term for breach of the anti-social behaviour order was excessive where the additional culpability not already punished was his presence on the prohibited estate. That term was quashed and replaced by three months’ imprisonment, consecutive to the four-year robbery sentence. The concurrent one-month sentence for resisting arrest remained, producing a total of four years and three months’ imprisonment.

• Court of Appeal (Criminal Division): The court dismissed both appeals against conviction. It allowed Wood’s appeal against sentence to the extent of substituting a three-month consecutive sentence for the nine-month sentence imposed for breach of the anti-social behaviour order.

• Crown Court at Lewes: On 15 August 2005, both appellants were convicted of robbery and each received four years’ imprisonment. Wood received a consecutive nine-month sentence for breach of an anti-social behaviour order and a concurrent one-month sentence for resisting arrest.