Davis, R. v

Bad-character evidence is important explanatory evidence only where, without it, the jury would find it impossible or difficult properly to understand other evidence, and its value in understanding the case as a whole is substantial. The gateway in section 101(1)(c) of the Criminal Justice Act 2003 must be applied cautiously. It cannot be used to introduce evidence whose real function is to establish propensity while avoiding the distinct statutory tests and fairness safeguards applicable to propensity evidence.

A defence of provocation requires close attention to events immediately preceding the killing. Remote evidence about an earlier relationship did not explain those events or the evidence about the later relationship. Its erroneous admission rendered the conviction unsafe.

The appellant was convicted of murdering his long-term partner at Winchester Crown Court. He had pleaded guilty to manslaughter, but the Crown did not accept that plea. His defence was absence of the requisite intent or, alternatively, provocation.

At trial, the judge admitted evidence from a former girlfriend about the appellant’s jealous, controlling and violent behaviour some 20 years earlier. The evidence was admitted under section 101(1)(c) of the Criminal Justice Act 2003 as important explanatory evidence. The judge did not determine whether it was admissible as propensity evidence under section 101(1)(d).

The appeal challenged that ruling and contended that the resulting conviction was unsafe.

1. Appeal allowed. The former girlfriend’s evidence should not have been admitted under section 101(1)(c) of the Criminal Justice Act 2003. The court directed a retrial.

2. Gateway (c), read with section 102, requires more than evidence which may assist the prosecution. The evidence must be needed to make other evidence properly intelligible, and must have substantial value in understanding the case as a whole. Although the gateway reflects the former common-law allowance for background or explanatory material, it is governed by the statutory language and must be construed in its statutory setting.

3. Evidence whose real purpose is to show a defendant’s propensity for violence, aggression or conduct without provocation should not enter through gateway (c) merely as explanatory evidence. Propensity evidence is addressed by gateway (d), with the fairness safeguards in section 101(3) and (4), and where relevant section 103. The court nevertheless observed that evidence properly admitted through one gateway may have other relevant uses, provided the statutory route for admission has been satisfied.

4. The jury could properly understand the killing, the evidence about the deterioration of the later relationship, and the provocation defence without knowing of the earlier relationship. Provocation required intense focus upon events immediately preceding the death. The former girlfriend’s account did not explain those events. Rather, it was remote and disputed material directed to showing that the appellant had a jealous, controlling and violent propensity, including an ability to react violently without provocation.

5. The error made the conviction unsafe. The jury had been told that the evidence was relevant to provocation, and the summing-up used it at a critical stage of the appellant’s account of the killing. A retrial was directed.

• Court of Appeal (Criminal Division): Allowed the appeal in [2008] EWCA Crim 1156, held the conviction unsafe, and directed a retrial.
• Crown Court at Winchester: The appellant was convicted of murder on 30 March 2007 after the Crown declined to accept his plea of guilty to manslaughter.