Lafayette, R. v

Where bad-character evidence is admitted, the judge must direct the jury on its particular relevance and guard against an impermissible use of it. Evidence admitted solely because the defence has attacked prosecution witnesses’ character should ordinarily be directed to credibility, rather than treated as evidence that the defendant had a propensity to commit the charged offence.

A jury cannot rely on alleged reprehensible conduct unless sure that it occurred. A conviction may nevertheless be safe if, despite shortcomings in the directions, the summing-up contained sufficient safeguards and the jury would inevitably have reached the same verdict.

The appellant was convicted at the Central Criminal Court of murder after a fatal stabbing during a struggle at his partner’s flat. He maintained that the deceased had produced the knife and that the fatal injury was accidental during self-defence.

At trial, the defence attacked the character of the deceased and prosecution witnesses. The prosecution adduced the appellant’s previous convictions and evidence of an alleged threat to his partner during an earlier criminal-damage incident. The appeal challenged the admission and use of that bad-character evidence and the adequacy of the summing-up.

The appellant also sought permission to appeal a life sentence with a 14-year minimum term. The central questions were whether the conviction was safe despite any misdirection on bad character, and whether the minimum term was manifestly excessive.

1. Conviction appeal dismissed. The summing-up did not adequately identify the purposes for which the jury could use the appellant’s previous convictions and the 2003 allegation. A jury should be assisted on the relevance of bad-character evidence in a direction tailored to the case. The judge should also have directed that the alleged 2003 threat could not be relied on unless the jury were sure that the appellant had made it.

2. Evidence admitted because the defence attacked the character of prosecution witnesses under section 101(1)(g) of the Criminal Justice Act 2003 did not thereby become propensity evidence. Where such evidence does not establish a relevant propensity under section 103, the safer course is to direct the jury that its relevance is to whether the defendant’s account is credible and that it is not evidence that he committed the charged offence. The precise words “credit” and “propensity” are unnecessary.

3. Previous violence must be scrutinised carefully before it is used as evidence of a propensity to commit the kind of offence charged. A propensity to angry outbursts is insufficient. The age, similarity and number of convictions, and the nature of the defence, may affect any proper inference.

4. Nevertheless, the conviction was safe. The judge had told the jury that the convictions were background only, did not determine guilt, and must not unfairly prejudice them. Those safeguards, despite the deficiencies identified, made the verdict inevitable on a properly directed jury.

5. Permission to appeal sentence refused. The 15-year starting point under Schedule 21 to the Criminal Justice Act 2003 was correct. The appellant’s serious prior violence justified an increase to 16 years. A two-year reduction for the absence of premeditation, the intention to cause serious harm rather than kill, and other mitigation produced the 14-year minimum term. It was not manifestly excessive.

• Court of Appeal (Criminal Division) — the appeal against conviction was dismissed and permission to appeal sentence was refused: [2008] EWCA Crim 3238.
• Central Criminal Court — on 31 January 2008, the appellant was convicted of murder, sentenced to life imprisonment, and given a 14-year minimum term.