James, R v

A prosecution case is not too weak to leave to the jury merely because an alternative explanation can be constructed without evidential support. Where that explanation is speculative, the jury may assess the identification and circumstantial evidence.

Bad-character evidence should not be admitted to bolster a weak prosecution case. However, where the admissible evidence is a strong case rather than one which only just meets the threshold for a case to answer, the trial judge may properly admit relevant previous convictions in the exercise of discretion. Careful directions must confine the jury’s use of that evidence.

The appellant was convicted at Winchester Crown Court of burglary and sentenced to four years’ imprisonment. The prosecution alleged that he entered the elderly complainant’s home through an open door, stole cash from the kitchen, and was followed by a witness to a nearby Tesco store.

The appellant accepted that he appeared on Tesco CCTV shortly after 11 am. He contended that the footage did not show the period immediately before 11 am and therefore did not exclude a different, similar-looking man whom the witness might have followed. He appealed against conviction on the grounds that there was no case to answer and that his previous burglary convictions had been wrongly admitted as bad-character evidence.

1. Appeal dismissed. The judge correctly left the case to the jury. The absence of CCTV footage before 11 am did not make the prosecution case incapable of supporting a conviction.
2. The proposed alternative required the jury to speculate that, in the very short period before recording began, another person of similar appearance and similarly dressed had entered and left Tesco after being followed by the witness, yet had avoided every camera and further observation. There was no evidence for that hypothesis. From 11 am onwards, the appellant was the only person in the store who fitted the witness’s description. The discrepancies in the description were matters for the jury and did not prevent the case being left to them.
3. The court accepted the caution in R v Hanson that bad-character evidence must not be used to bolster a weak case. That principle did not assist the appellant because the Crown’s admissible evidence, once the speculative alternative was rejected, was strong rather than merely sufficient to meet the case-to-answer threshold.
4. The trial judge was therefore entitled to admit the appellant’s previous convictions as relevant bad-character evidence. The directions adequately protected against misuse: the jury were told repeatedly to consider the convictions only if satisfied that the witness was truthful and reliable, and only as possible support for the Crown’s case. No challenge was made to those directions.

• Court of Appeal (Criminal Division): appeal against conviction dismissed.
• Crown Court at Winchester: the appellant was convicted by a 10:2 majority of burglary on 7 May 2009 and sentenced to four years’ imprisonment.