Ngyuen, R v

Relevant evidence of untried misconduct may be admitted to establish a propensity under section 101(1)(d) of the Criminal Justice Act 2003. A single earlier incident may have sufficient probative force where its distinctive circumstances materially resemble the charged offence.

The fairness inquiry under section 101(3) concerns the effect of admission on the proceedings. In the absence of bad faith, the prosecution's deliberate choice not to charge the earlier misconduct does not of itself make its admission unfair. Individual jurors may rely on bad-character evidence only if each is sure of its factual basis, but the jury need not take the same evidential route to the requisite verdict.

The defendant was convicted by a majority of murder at the Central Criminal Court before Her Honour Judge Goddard QC. The prosecution alleged that he deliberately struck the deceased's neck with a glass in a public house. He claimed that he acted in self-defence.

Before trial, the judge admitted evidence of an incident 18 days earlier in which the defendant allegedly broke a glass and used it to injure three men in another public house. The evidence was admitted as bad-character evidence under section 101(1)(d) of the Criminal Justice Act 2003, to establish propensity and intent.

The appeal challenged both the relevance of that evidence and the fairness of admitting serious allegations which the Crown had decided not to prosecute. The central issue was whether the earlier untried allegations could properly be used as propensity evidence.

1. Appeal dismissed. The trial judge was entitled to admit evidence of the earlier alleged assaults. The Court of Appeal would interfere with an assessment of whether prior events could establish propensity only if the judge had been plainly wrong. Applying that approach, the earlier incident was relevant: it was close in time, involved alleged deliberate and unlawful use of a glass to cause really serious injury, and followed drinking and an argument in a public house.

2. Under section 101(3) of the Criminal Justice Act 2003, the question is whether admission would adversely affect the fairness of the proceedings so that the evidence ought not be admitted. The Crown's good-faith decision to rely on relevant untried allegations as bad-character evidence, rather than prosecute them, did not itself establish unfairness. A further feature causing unfairness was required.

3. The court applied the reasoning in R v Smith and other cases [2005] EWCA Crim 3244. Relevant evidence may in principle be used to prove the offence charged even if related allegations have not been tried. The protection for the accused lies in the statutory fairness discretion and, where applicable, the court's other exclusionary powers.

4. The judge's direction to the jury was correct. Each juror could take the earlier incident into account only if personally sure of the three specified facts concerning it. Jurors need not agree on every item of evidence or follow the same evidential route, but the requisite majority had to be sure that the elements of murder were proved. The directions were clear and did not invite application of a lower standard of proof.

• Court of Appeal (Criminal Division) — dismissed the defendant's appeal against conviction: [2008] EWCA Crim 585.

• Central Criminal Court — convicted the defendant of murder by a 10:2 majority verdict. The trial judge admitted evidence of the earlier alleged assaults as bad-character evidence.