DM, R v

Evidence of other alleged offending used to strengthen the cogency of evidence on a charged count, by showing the unlikelihood of coincidence, is not thereby evidence of propensity. The jury may assess the evidence as a whole without applying propensity directions.

Under Criminal Justice Act 2003, section 101(3), otherwise relevant bad-character evidence must be excluded where its admission would adversely affect the fairness of proceedings. A prior Scottish verdict of not proven, coupled with the need to conduct a detailed satellite trial of the other allegation, may create that unfairness. Appellate intervention is exceptional, but may be justified where the trial judge gives no reasoning for rejecting the fairness objection.

The applicant faced trial in England for robbery and firearms offences arising from a robbery in Rothwell, Leeds. At a preparatory hearing, the Crown Court admitted evidence of a similar robbery at Banff, Scotland, three days later. The prosecution relied on the evidence not as propensity evidence, but as material which, considered with the Leeds evidence, made coincidence less likely.

The applicant had previously been tried for the Banff robbery and the Scottish jury returned a verdict of not proven. He made an interlocutory application under section 35(1) of the Criminal Procedure and Investigations Act 1996. The central issue was whether admitting the Banff evidence would adversely affect the fairness of the English proceedings.

1. The application and appeal were allowed. The court reversed the preparatory ruling admitting evidence of the Banff robbery. The ruling did not affect the admissibility of evidence concerning a wire brush associated with firearms or an alleged request for shotgun cartridges.
2. The Banff material was evidence of bad character under sections 98 and 99 of the Criminal Justice Act 2003. It did not have to do with the alleged facts of the Leeds offence. It was capable of passing the gateway in section 101(1)(d), because proof that the applicant committed the Banff robbery could make his participation in the Leeds robbery more likely.
3. The court distinguished true propensity evidence from evidence deployed to assess several allegations together. R v Hanson [2005] 2 Cr.App.R 21 concerned propensity in the proper sense. By contrast, Wallace [2007] 2 Cr.App.R 30 and R v Chopra [2007] 1 Cr.App.R 16 illustrated the use of evidence as a whole to assess its cogency and the unlikelihood of coincidence. Such use does not call for propensity directions.
4. Applying section 101(3), the court held that admission would have an adverse effect on fairness. For the Banff evidence to assist, the English jury would have to reject the practical effect of the Scottish verdict of not proven and determine in detail whether the applicant committed that robbery. The extensive and conflicting Banff evidence would create a satellite trial and divert the jury from the sole offence charged in England.
5. The trial judge was ordinarily the primary decision-maker on fairness. However, she gave no reasons for concluding that section 101(3) did not require exclusion. In those exceptional circumstances, the court was entitled to reach the contrary conclusion.

• Court of Appeal (Criminal Division): Allowed the applicant's interlocutory application and appeal. It reversed the Crown Court ruling which had admitted the Banff evidence.
• Crown Court: At a preparatory hearing on 18 February 2008, admitted evidence of the Banff robbery under Part II of the Criminal Justice Act 2003, while declining to admit it as propensity evidence.