Foster, R. v

Where previous convictions are admitted as bad-character evidence to show propensity, the jury should be told simply why they may bear on a tendency to commit the charged kind of offence. It is generally unhelpful to say that such evidence assists in assessing the truthfulness of the defendant’s evidence. An inadequate direction does not itself make a conviction unsafe. The appellate court must assess the summing-up as a whole and whether the jury’s reasoning shows that the defect could have affected the verdict. A judge answering a jury note on identification need not repeat an earlier full warning if the reminder is clear and adequate.

Following a jury trial at Wood Green Crown Court, the appellant was convicted of robbery and handling stolen goods. The prosecution relied on the victim’s identification, evidence connecting the appellant with a stolen Audi used in the robbery and seen the following day, and two previous robbery convictions admitted as bad-character evidence under Criminal Justice Act 2003.

The appellant denied being the robber or the driver and advanced an unsupported alibi. He appealed against the admission and jury direction on the previous convictions, and against the judge’s response to a jury note concerning identification and the Audi. Leave was granted only on the bad-character-direction ground; the other grounds were renewed before the court.

1. The appeal was dismissed. The renewed applications for leave to appeal on the admission of bad-character evidence and on the response to the jury note were refused.
2. The trial judge had not arguably erred in admitting the two previous robbery convictions. On a fair reading of the ruling, he considered both their nature and age when assessing their relevance to propensity. His references to the appellant’s wider record were made only as background when considering the significance of the age of those convictions. Although the similarities were limited and the convictions relatively old, their admission was within the judge’s reasonable discretion.
3. The direction on bad character was unsatisfactory. Applying the guidance in R v Campbell, [2007] EWCA Crim 1472, the court held that it was unhelpful to tell the jury that the convictions could bear on the appellant’s truthfulness. The jury should instead have been assisted to focus on their possible relevance to a tendency to commit robbery. However, the direction repeatedly warned the jury not to convict on the appellant’s record, stressed the age of the convictions, and required consideration of all the evidence. The jury note also showed that the jury had concentrated on the identification and Audi evidence. The defect therefore did not affect the safety of the convictions.
4. The judge’s answer to the jury note was less than ideal but contained no important error or omission. A full Turnbull direction had already been given without complaint. The judge expressly reminded the jury of the identification warning and told them to pay full attention to it. He was not required to repeat the full direction, and the jury made no further request for assistance.

• Court of Appeal (Criminal Division) Dismissed the appeal and refused the renewed applications for leave to appeal: [2009] EWCA Crim 353.
• Wood Green Crown Court On 15 May 2008, a jury convicted the appellant of robbery and handling stolen goods.