McKenzie v R

Unconvicted allegations of previous misconduct may, in principle, establish a propensity relevant to an issue under the Criminal Justice Act 2003. Their admission requires considerable caution. The judge must assess their capacity to prove propensity, their relevance, fairness, staleness, and the risk that collateral disputes will distract from the real issues.

Where such evidence is admitted, the jury should receive a case-specific direction. It must explain that proof of past dangerous conduct does not establish guilt on the charged occasion. The evidence is no more than background when assessing the direct evidence. An erroneous admission or an inadequate direction does not make a conviction unsafe if the jury was directed to the central factual issue and the admissible evidence supporting conviction was compelling.

The appellant was convicted at Exeter Crown Court of causing the death of a motorcyclist by dangerous driving. He had pleaded guilty to careless driving. The prosecution case was that he turned right across the motorcyclist’s path without warning. The appellant maintained that he had stopped, assessed the approaching motorcycle, and believed that he could turn safely.

Before trial, the prosecution obtained leave to adduce evidence from two witnesses about earlier allegations of the appellant’s aggressive and risky driving. On appeal, he contended that the evidence was inadmissible under the Criminal Justice Act 2003, that the summing-up gave it undue prominence, and that his conviction was unsafe. The central issue was whether the errors concerning bad-character evidence and the jury direction rendered an otherwise strongly evidenced conviction unsafe.

1. Appeal dismissed. The conviction was not unsafe. The independent eyewitness evidence was strong, while the appellant’s account contained substantial improbabilities. The judge ultimately directed the jury that the decisive question was what occurred at the junction.
2. Evidence of unconvicted prior misconduct can in principle establish a propensity under sections 101(1)(d) and 103 of the Criminal Justice Act 2003. However, such applications require considerable caution. Unlike a conviction, an allegation creates a collateral issue requiring proof at trial. It may be stale, incomplete and difficult for the defendant to answer. Numerous allegations may also divert the jury from the principal issue.
3. The driving instructor’s general recollection that the appellant had been over-confident and aggressive as a learner some four or five years earlier was inadmissible. It was too general and remote. The more specific later allegation, together with evidence from a former girlfriend about repeated risky driving, could permissibly be treated as capable of showing a propensity to drive aggressively and impatiently while taking dangerous risks. The trial judge’s admission of that residue was not plainly wrong or an unreasonable exercise of discretion.
4. The summing-up was nevertheless deficient. It gave excessive prominence to bad-character evidence and did not sufficiently relate the necessary cautions to its particular weaknesses. A proper direction should require the jury to be sure of the earlier misconduct, account for its age and vagueness, decide whether it fairly established a characteristic habit, and avoid treating such a habit as proof of guilt on the charged occasion.
5. The court applied the appellate approach in Hanson [2005] 2 Cr App R 21: an admissibility ruling is not disturbed unless the assessment of propensity is plainly wrong or discretion was exercised unreasonably in the Wednesbury sense. Despite the wrongful admission of part of the evidence and the inadequate direction, neither error undermined the safety of this conviction.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction: [2008] EWCA Crim 758.
• Exeter Crown Court — following trial before His Honour Judge McKintosh, convicted the appellant of causing death by dangerous driving after he pleaded guilty to careless driving. No lower-court citation is stated.