H, R. v

Criminal Justice Act 2003, section 100 permits evidence of a non-defendant’s bad character to show either that person’s propensity to commit the alleged offence or credibility, provided it has substantial probative value on a matter substantially important in the proceedings. The provision contains no exclusion of either use. Lack of close factual similarity between the earlier and alleged misconduct does not itself make the evidence inadmissible. The statutory factors require an evaluative assessment, particularly where the identity of the offender is disputed. A conviction may be unsafe where the erroneous exclusion of such evidence could materially affect the jury’s assessment of an identified alternative perpetrator.

The appellant faced two robberies at the same shop, committed less than a month apart. The jury failed to agree on the first count but convicted him on the second.

He denied being the robber and alleged that HH was responsible. The defence was permitted to prove that HH had stolen cigarettes from the same shop shortly before the first robbery. It was not permitted to prove HH’s earlier convictions for two unrelated robberies. HH was subsequently called by the prosecution and denied involvement.

The appeal concerned whether section 100 of the Criminal Justice Act 2003 allowed the excluded evidence to be adduced against a non-defendant, and whether its exclusion rendered the second-count conviction unsafe.

1. Appeal allowed. The court quashed the conviction for the second robbery and ordered a retrial, to be tried with the existing first-count indictment.
2. The trial judge had misconstrued section 100 of the Criminal Justice Act 2003. The section is not confined so as to exclude evidence of a non-defendant’s propensity or credibility. Either may have substantial probative value in relation to a matter in issue which is substantially important in the proceedings.
3. The statutory factors did not make factual similarity a decisive precondition of admissibility. Section 100(3)(c) requires attention to similarities and dissimilarities. Section 100(3)(d), where identity is disputed and the evidence is said to show that another person committed the charged misconduct, asks how far the evidence tends to show that the same person was responsible on each occasion. The different wording supported a broader evaluative inquiry.
4. HH’s earlier robberies were capable of showing a propensity to use violence to steal and were also relevant to his credibility after he denied responsibility. Their age and factual differences did not justify their categorical exclusion. The court approved the reasoning in R v Weir [2006] 1 WLR 1885 that section 100(1) includes credibility issues.
5. Although the prosecution case on the second robbery was strong, the court could not safely conclude that the excluded evidence would have made no difference. The jury had failed to agree on the closely connected first robbery, which was likely to have been committed by the same person. Fairness therefore required the conviction to be quashed.
6. A fresh indictment was to be preferred and the appellant arraigned within two months. He was to remain in custody pending the retrial.

• Trial: The jury failed to agree on the first robbery count and convicted the appellant on the second. The judge admitted evidence of HH’s recent theft from the shop but excluded evidence of his earlier robberies under section 100 of the Criminal Justice Act 2003.
• Court of Appeal (Criminal Division): Allowed the appeal, quashed the second-count conviction, and ordered a retrial to be tried with the first count.