Murphy, R. v

Under section 101(1)(d) of the Criminal Justice Act 2003, the trial judge must decide whether bad-character evidence is relevant to an important issue, including propensity. A single old conviction will rarely establish a continuing propensity. It may do so only where its circumstances have very special and distinctive probative features, or where there is evidence that the propensity manifested itself during the intervening period.

An appellate court will usually be slow to interfere with an admissibility ruling made after correct self-direction. It must intervene where the conclusion that prior misconduct establishes propensity was not properly open to the trial judge. If wrongly admitted propensity evidence may have affected a jury's verdict, and the court cannot conclude that the jury would inevitably have convicted without it, the conviction is unsafe.

The appellant was convicted at Croydon Crown Court on 23 March 2006 of possessing a firearm with intent to cause fear of violence and two counts of criminal damage. The prosecution case concerned a shooting at vehicles following a dispute over a vehicle. Identification by one witness was central.

At trial, the judge admitted a 1984 conviction for possessing a sawn-off shotgun as evidence of propensity under section 101(1)(d) of the Criminal Justice Act 2003. The appellant appealed against conviction, contending that one conviction some 20 years earlier could not establish a propensity to commit the charged firearms offence. The central issue was whether the evidence was admissible and, if not, whether its admission rendered the convictions unsafe.

1. Appeal allowed. The court quashed all three convictions. The 1984 conviction should not have been admitted as propensity evidence under section 101(1)(d) of the Criminal Justice Act 2003.

2. The first stage of an application under that gateway is a judgment whether the bad character is relevant to an important issue between the defendant and the Crown, rather than solely an exercise of discretion. The trial judge has latitude, and an appellate court will be slow to interfere if the judge has correctly directed himself. However, following R v Hanson [2005] 2 Cr App R(S) 21, intervention is required where the conclusion that prior events can establish propensity is plainly wrong.

3. A single conviction may exceptionally establish propensity where it reveals unusual behaviour or has particular probative force. There are no fixed rules about age. But a conviction 20 years old, without very special and distinctive features shared with the charge or evidence of intervening manifestation, is too slight a basis for a continuing propensity. The isolated possession of a sawn-off shotgun when the appellant was 28 could not establish a propensity to commit firearms offences when he was 48.

4. The erroneous admission could have influenced the jury. The identification evidence came from one witness and was not such that the court could conclude that the jury would inevitably have convicted without the bad-character evidence. The possibility that the conviction might later have been admissible through gateway (g) did not cure the error. That gateway had not been ruled upon, the defence might have been conducted differently, and the jury directions would have differed.

5. The court ordered a retrial on the same three counts, directed a fresh indictment and re-arraignment within two months, and granted conditional bail. Its observation that the public-interest immunity material disclosed no apparent breach of the prosecution's disclosure duty was not necessary to the result.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction, quashed the convictions and ordered a retrial: [2006] EWCA Crim 3408.
• Crown Court at Croydon: On 23 March 2006, convicted the appellant of the firearms and criminal-damage counts and imposed concurrent five-year sentences.