Brima, R. v

For the propensity gateway in section 101(1)(d) of the Criminal Justice Act 2003, the question is whether previous convictions have the capacity to establish a propensity to commit offences of the kind charged. The trial judge must also consider whether that propensity makes the charged offence more likely and whether admission would be unjust or render the proceedings unfair.

The strength of the other prosecution evidence is material to fairness. Where there is sufficient identification, forensic and supporting evidence, knife-related convictions may properly be admitted to show a propensity for violence involving knives. An appellate court will not interfere unless the judge’s assessment of capacity is plainly wrong or the discretion has been exercised unreasonably.

Jimmy Brima was convicted of murder at the Central Criminal Court. The prosecution case included identification evidence from a witness who knew him, forensic evidence from bloodstained tracksuit bottoms said usually to have been worn by him, and evidence from Adeoye that Brima admitted the stabbing and disposed of items.

On appeal, Brima challenged the admission of two earlier convictions for offences involving knives under section 101(1)(d) of the Criminal Justice Act 2003. He also contended that the judge should have stopped the case and that further testing of hairs and fibres from recovered clothing was required before the conviction could be treated as safe.

1. Appeal dismissed. The judge was entitled to admit the two previous convictions. The earlier assault involved stabbing the victim with a knife, and the robbery involved threatening the victim with a knife. They had the capacity to establish a propensity for violence involving knives and, given their proximity and nature, that propensity made the murder allegation more likely.

2. Applying the guidance in R v Hanson & Ors [2005] 2 Cr App R 21, the court held that the judge had correctly considered the strength of the prosecution case before deciding whether admission would be unfair. The identification evidence, forensic evidence and Adeoye’s evidence meant that the case was not so weak that admitting the convictions would be unjust under section 101(3) of the Criminal Justice Act 2003.

3. The relevant inquiry was whether the convictions had the capacity to establish propensity, rather than whether they in fact established it conclusively. The appellate court would interfere with that assessment only if it were plainly wrong or the discretion had been exercised unreasonably. Neither condition was met.

4. The prosecution evidence was sufficient to leave the case to the jury. The absence of further hair and fibre testing did not render the conviction unsafe. The defence had not applied for that testing at trial and was able to rely on the resulting uncertainty before the jury. There was no criticism of the identification direction, the directions concerning Adeoye’s evidence, or the summing-up generally.

• Court of Appeal (Criminal Division). Appeal against conviction dismissed: [2006] EWCA Crim 408.

• Central Criminal Court. Brima was convicted of murder on 25 May 2005.