Hassett, R. v

An extension of time for a prosecution notice of bad-character evidence is discretionary. The court must consider the reason for default, prejudice and the overriding objective. An unacceptable delay is relevant but is not a separate or conclusive test.

Under Criminal Justice Act 2003 gateway (d), the statutory test for propensity is less strict than the former common-law similar-fact test. Previous convictions within the same statutory category may establish propensity if they make guilt more likely and their admission is fair. The appellate court will rarely interfere where the trial judge correctly applies that test and exercises discretion reasonably.

Two brothers appealed convictions for robbery and false imprisonment after a jury trial at Snaresbrook Crown Court. The prosecution served its application to adduce their previous convictions on the first day of trial, despite an earlier case-management direction requiring service within 21 days.

The Recorder extended time and admitted convictions under the propensity gateway. The appeals challenged the extension, the relevance and fairness of the convictions, particularly one involving a knife used for self-harm, and the safety of the convictions.

1. The appeals against conviction were dismissed. The Recorder made no legal error in extending time for the prosecution’s bad-character application. Under rule 35.8, delay and its explanation are relevant considerations, but neither an unacceptable explanation nor the absence of exceptional circumstances is determinative. The court must assess all relevant circumstances, including prejudice and the overriding objective in the Criminal Procedure Rules 2005. The Recorder had treated the delay as a factor and, properly, not as the sole test.

2. The statutory propensity inquiry under sections 101(1)(d) and 103 of the Criminal Justice Act 2003 differs from, and is less exacting than, the former common-law similar-fact test. The Recorder was entitled to consider the convictions individually and cumulatively, and to find that they established a propensity relevant to the charged offences. Kevin’s earlier possession of a bladed article was capable of supporting a propensity to carry a knife in public. Its use on that occasion for self-harm did not negate that propensity, particularly given evidence that a sharp article was pressed against the complainant during the alleged robberies.

3. The late notice caused no material unfairness. The prosecution had admitted the self-harm and distress surrounding the earlier knife offence, and Kevin gave unchallenged evidence about his circumstances. The Recorder was entitled to conclude that admitting the convictions would not have an adverse effect on the fairness of the proceedings.

4. The court applied the restrained appellate approach stated in R v Hanson [2005] Cr App R(S). A properly directed trial judge’s ruling on admissibility or propensity should not be disturbed unless plainly wrong or an unreasonable exercise of discretion. The Recorder’s ruling met that standard.

5. The Recorder could also direct that convictions already admitted under gateway (d) bore on credibility after the defendants had attacked prosecution witnesses’ character, without admitting further convictions under gateway (g). The convictions were safe: the jury received admissible evidence and a faultless summing-up.

• Court of Appeal (Criminal Division): dismissed both defendants’ appeals against conviction in [2008] EWCA Crim 1634.
• Crown Court at Snaresbrook: a jury convicted both defendants of robbery and false imprisonment on 30 April 2007.