Dobson, R. v

Under Criminal Justice Act 2003 section 101(1)(d), evidence of previous convictions demonstrating a relevant propensity may support identification evidence, even where the defendant relies on an alibi. It need not be strikingly similar to the charged offence, although its nature, age and surrounding circumstances determine whether it establishes propensity and whether that propensity is relevant.

An appellate court will ordinarily respect a trial judge’s admissibility ruling where the judge has applied the correct principles, unless the assessment is plainly wrong or the discretion was exercised unreasonably. Convictions based on apparently different verdicts are unsafe only where no reasonable jury could logically have returned them.

The applicants were convicted at the Central Criminal Court of murder arising from a shooting in which the prosecution alleged joint enterprise. The prosecution relied principally on anonymous eyewitnesses. Each applicant denied presence or participation. The trial judge admitted evidence of their previous firearms-related convictions as bad-character evidence of propensity.

After a single judge refused leave, the applicants renewed applications for leave to appeal against conviction. They challenged the admission and direction on the previous convictions, contended that their convictions were inconsistent with the acquittal of a co-defendant, and alleged that the judge’s comments about internet research undermined the safety of the verdicts.

1. The renewed applications for leave to appeal against conviction were dismissed. The trial judge was entitled to find that the applicants’ previous firearms-related convictions established a propensity to commit gun crime, whether as principals or secondary parties.

2. The court applied the guidance in R v Hanson [2005] 2 Cr App R 21. No fixed number of convictions, and no striking similarity, is required. The nature, age and circumstances of the earlier offending must be assessed. Here the convictions had sufficient probative force and their admission was neither unjust nor outside the proper exercise of the judge’s discretion.

3. Propensity evidence may be relevant to identity. An alibi does not isolate identity from propensity evidence. Although such evidence cannot alone establish guilt, it may support the credibility and reliability of eyewitness identification that the defendants were present and participating. The judge’s directions adequately prevented the jury from treating the convictions as the sole or main basis for guilt. No further direction specifically tying the evidence to alibi was required.

4. The verdicts were not logically inconsistent. The proper question was whether no reasonable jury, applying its mind to the evidence, could have returned the combination of convictions and acquittal. The eyewitness accounts, and their relevance to each defendant, differed. A legitimate chain of reasoning could therefore explain the jury’s separate conclusions.

5. The judge’s initial internet comment could have been expressed more firmly, but he made clear that the case had to be decided on the evidence heard in court. Unlike R v Karakaya [2005] 2 Cr App R 5, there was no evidence that any juror obtained or used external material. Neither separately nor cumulatively did the grounds cast doubt on the safety of the convictions.

• Court of Appeal (Criminal Division): renewed applications for leave to appeal against conviction were dismissed in [2008] EWCA Crim 435, following refusal of leave by a single judge.
• Central Criminal Court: on 2 November 2006, both applicants were convicted of murder and sentenced to life imprisonment.