Freeman, R v

Evidence relating to one count may constitute bad-character evidence in relation to another count on the same indictment. Its admissibility is governed by the statutory gateways in Criminal Justice Act 2003, section 101, rather than the former common-law rules. Where the evidence is admissible and relevant, the jury may consider it when deciding each count without first being sure that the defendant is guilty on another count.

The jury must nevertheless decide each count separately. Similar allegations or convictions may be probative because they support the truth of another allegation or identify the offender, rather than merely because they show propensity.

This joint judgment determined conviction appeals by Freeman and Crawford. Freeman was convicted at Guildford Crown Court of sexual offences against two children. He challenged the refusal to sever the counts, the rejection of a submission of no case to answer, and the direction permitting cross-admissibility between the two sets of allegations.

Crawford was convicted of two street robberies. He challenged the rejection of a no-case submission, the admission of earlier robbery convictions, and the direction allowing the evidence on each count to support the other.

The central issue was the proper direction where evidence concerning one count is relied on as bad-character evidence in relation to another count on the indictment.

1. The conviction appeals were dismissed. Freeman’s separate appeal against sentence was allowed, reducing his total sentence from 42 months to 30 months’ imprisonment.

2. Under Criminal Justice Act 2003, evidence on one count is capable of being bad-character evidence under section 98 in relation to another count. It may be admitted if it satisfies a gateway in section 101(1). Where relevance is said to arise under section 101(1)(d), the evidence may be probative because it makes another allegation more likely to be true, or because it supports the inference that the same defendant committed another offence. It is not necessary to characterise every such case solely as one of propensity.

3. The court rejected the restrictive approach that the jury must first be sure of guilt on one count before it may use the evidence on that count in considering another. Once evidence is admissible and relevant, the jury may consider all of it when deciding each count. The judge must make clear that separate verdicts are required and that the evidence relating directly to each count remains central.

4. Freeman suffered no prejudice from the joint trial. The evidence of each child was sufficiently similar to be capable of supporting the other child’s evidence, and the criticisms of the later complaint were matters for the jury. The summing-up, although expressed in terms of propensity, did not render the convictions unsafe.

5. Crawford’s earlier robbery convictions were independently probative of identity. Their similarity to the charged robberies, including timing and location, meant that they supported the Crown case rather than merely bolstering a weak case through propensity. The evidence on each charged robbery was likewise capable of supporting the other. There were clear identifications and the judge correctly left both counts to the jury.

• Court of Appeal (Criminal Division) Conviction appeals by Freeman and Crawford dismissed. Freeman’s appeal against sentence was allowed and his sentence was reduced to 30 months’ imprisonment.
• Crown Court at Guildford Freeman was convicted on 10 October 2007 of three counts of indecent assault and two counts of sexual assault of a child, and was sentenced to 42 months’ imprisonment.
• Crown Court Crawford was convicted on 24 April 2008 of two robberies and received concurrent sentences of 1,014 days’ imprisonment.