Urushadze, R. v

Evidence of previous theft convictions is not admissible merely because theft and robbery fall within the same statutory category. Under Criminal Justice Act 2003, the convictions must have sufficient similarity to the charged robbery to possess real probative force. The court must also assess whether any probative value is outweighed by unfair prejudice.

Previous shoplifting convictions ordinarily do not assist in deciding whether a defendant perceived that a violent theft was occurring. They cannot be used merely to show that the defendant understood what theft was.

Following a five-day retrial in the Crown Court at Inner London, the appellant was convicted of robbery and sentenced to five years’ imprisonment. A recommendation for deportation was also made.

The prosecution alleged that he joined a robbery by taking the victim’s briefcase from an unidentified assailant. The appellant said that he had innocently intervened to help an acquaintance whom he believed was being attacked, and that he thought the briefcase belonged to that person.

Near the end of the prosecution case, the judge admitted six shoplifting convictions as bad-character evidence under section 101(1)(d) of the Criminal Justice Act 2003. The central issue on appeal was whether those convictions were probative of participation in the charged robbery and fairly admissible.

1. Appeal allowed. The convictions for shoplifting were wrongly admitted and no retrial was ordered.

2. The prosecution relied on section 101(1)(d) of the Criminal Justice Act 2003, contending that the convictions showed a propensity to commit robbery. Section 103(2) treated theft and robbery as offences in the same category, but that did not make every theft conviction admissible in a robbery trial.

3. Applying the reasoning in R v Tully and Wood [2006] EWCA Crim 2270, the court held that prior convictions require sufficient similarity to the charged offence to give them real probative force. A general propensity to acquire others’ property is too broad and carries a potentially harmful prejudicial effect.

4. The shoplifting convictions could not properly show that the appellant understood theft, perceived that a violent theft was taking place, or was likely to have participated in this robbery. Whether he saw the initial attack, and whether his account of the later events was credible, were the material factual issues. The prior offences lacked sufficient similarity to the alleged joint-enterprise robbery.

5. Any limited probative value was very greatly outweighed by prejudice. The resulting adverse effect on the fairness of the proceedings meant that the evidence ought not to have been admitted. Although the prosecution’s failure to comply with Part 35 of the Criminal Procedure Rules was unacceptable, it was unnecessary to decide whether the trial judge had properly exercised her discretion to entertain the late application.

6. A further retrial would have been the second retrial. In view of the procedural history and the substantial time already served in custody, the court declined to order one.

• Court of Appeal (Criminal Division). Allowed the appeal against conviction and declined to order a further retrial: [2008] EWCA Crim 2498.

• Crown Court at Inner London. Following a retrial, convicted the appellant of robbery on 15 January 2008, sentenced him to five years’ imprisonment, and recommended deportation.