Lawson, R v

Under the Criminal Justice Act 2003, bad-character evidence tendered by a co-accused under section 101(1)(e) must concern an important issue between the defendants, arise from a defence which undermines the co-accused’s defence, and have substantial probative value on that issue. Those questions must be addressed separately.

A previous conviction need not involve dishonesty or false statements before it can have substantial probative value concerning the reliability of a defendant whose evidence undermines a co-accused. The assessment is fact-sensitive. Once gateway (e) is satisfied, the judge has no discretion to exclude the evidence. A co-accused must nevertheless give the other defendant proper notice or, at minimum, alert his counsel before seeking to adduce it.

R v Lawson concerned the appellant’s conviction for manslaughter after his cousin pushed a vulnerable man into a lake, causing his death. The Crown alleged that Lawson, his cousin Quirk, and King had encouraged the act. Quirk pleaded guilty before trial; Lawson and King were tried together.

Lawson and King each gave an account of an incriminating remark allegedly made by the other shortly before the deceased was pushed into the water. After Lawson had given evidence, King’s counsel, without notice, cross-examined him about a subsequent conviction for unlawful wounding. The trial judge admitted that conviction only on Lawson’s truthfulness concerning King, and not as propensity evidence.

Lawson appealed against conviction, contending that the evidence was inadmissible. He also appealed against sentence because the Crown Court had recorded imprisonment rather than detention in a young offender institution.

1. The appeal against conviction was dismissed. The appeal against sentence was allowed only to substitute detention in a young offender institution for sentences wrongly recorded as imprisonment.

2. The trial judge could regularise the absence of notice. Rule 35.8 of the Criminal Procedure Rules permitted bad-character evidence to be admitted despite non-compliance with the notice requirement, including by shortening time to the point of dispensing with it. The court strongly condemned the unannounced cross-examination as contrary to Rule 35.5 and proper advocacy.

3. Under section 101(1)(e) of the Criminal Justice Act 2003, Lawson’s credibility about King’s alleged remark was an important matter in issue between co-defendants. The alleged remark, if accepted, materially undermined King’s defence that he had never contemplated pushing the deceased into the water. The issue remained important although the remark alone would not establish manslaughter and Lawson sought to qualify its significance.

4. For credibility evidence under section 104(1), the court had to address separately whether Lawson’s defence undermined King’s, whether an important issue arose, and whether the conviction had substantial probative value. Once gateway (e) was satisfied there was no discretionary exclusion, but the judge had to make a fact-sensitive evaluative judgment on substantial probative value.

5. R v Hanson [2005] 2 Cr App R No 21, 299 established that untruthfulness and dishonesty are not synonymous. That did not make convictions for conduct other than false statements incapable of bearing substantially on reliability where one defendant sought to defend himself against another defendant’s incriminating evidence. The judge was entitled to find the unlawful-wounding conviction capable of having that value on the facts.

6. In any event, the conviction was safe. The jury received a clear limiting direction, and the CCTV, Lawson’s changing accounts, and other evidence independently provided a strong basis for conviction.

7. The court quashed the 13-month sentence of imprisonment for manslaughter and the consecutive five-month sentence of imprisonment for unlawful wounding. It substituted detention in a young offender institution for each sentence. The total sentence remained 18 months.

• Court of Appeal (Criminal Division): The conviction appeal was dismissed. The court allowed the sentence appeal to the limited extent of substituting detention in a young offender institution for imprisonment.
• Chelmsford Crown Court: Lawson was convicted of manslaughter and sentenced to 13 months recorded as imprisonment, with a consecutive five-month sentence for unlawful wounding.