Passos-Carr, R. v

Under section 101(1)(e) of the Criminal Justice Act 2003, a co-defendant’s bad-character evidence is admissible only where it has substantial probative value in relation to an important matter in issue between the defendants. An issue may be important where one defendant alleges that the other alone committed the violence.

Violent propensity evidence may have substantial probative value in an appropriate cut-throat case. Its value depends on the actual dispute and the other evidence. It will not satisfy the statutory test merely because the co-defendant has previous convictions and the defendants advance different accounts.

The applicant was convicted at Kingston upon Thames Crown Court of inflicting grievous bodily harm after an assault outside a birthday party. He maintained that the complainant was the aggressor and that his co-accused alone caused the injuries. The co-accused accepted punching the complainant but relied on self-defence and did not allege that the applicant used violence.

At trial, the applicant sought to adduce the co-accused’s previous convictions for assault under section 101(1)(e) of the Criminal Justice Act 2003. The trial judge held that, although there was an important issue between the defendants, the convictions lacked substantial probative value. Following a single-judge refusal, the applicant renewed his application for leave to appeal against conviction.

1. The court refused the renewed application for leave to appeal against conviction.

2. The statutory gateway in section 101(1)(e) of the Criminal Justice Act 2003 required the proposed bad-character evidence to have substantial probative value in relation to an important matter in issue between the applicant and the co-accused. That condition was not met simply because the applicant alleged that the co-accused alone attacked the complainant.

3. There was an important issue between the defendants. The applicant denied any joint venture and asserted that the co-accused was solely responsible for the attack and injuries. The court was prepared to assume that evidence of a propensity for violence could, in a suitable cut-throat case, have substantial probative value on such an issue.

4. On the facts, however, the co-accused admitted punching the complainant and did not seek to implicate the applicant. The defence accounts therefore did not present the classic cut-throat situation in which co-defendants undermine each other’s cases. The trial judge had carefully assessed the limited probative value of the convictions and was entitled to find that they did not materially assist the issue whether the co-accused alone caused the injuries.

5. The jury’s rejection of the co-accused’s self-defence case, and his conviction, was consistent with the conclusion that he had unlawfully punched the complainant. It did not demonstrate that his previous convictions should have been admitted against him.

• Court of Appeal (Criminal Division): Refused the renewed application for leave to appeal against conviction: [2009] EWCA Crim 2018.
• Crown Court at Kingston upon Thames: The applicant was convicted of inflicting grievous bodily harm on 9 February 2009. His application to adduce his co-accused’s bad-character evidence under section 101(1)(e) of the Criminal Justice Act 2003 was refused.