Woodhouse, R. v

A single, historic incident may be admissible as evidence of a defendant’s propensity under section 101(1)(d) of the Criminal Justice Act 2003 where its distinctive similarities to the charged conduct make it capable of assisting the jury on a live issue, such as whether contact was accidental.

The passage of time and the absence of intervening misconduct are important considerations, but do not make the evidence inadmissible where the similarities are sufficiently distinctive. Questions of fairness under section 101(3), including difficulty in contesting an earlier caution, are principally for the trial judge. An appellate court will be slow to interfere unless that discretionary assessment was plainly wrong.

The appellant was convicted in the Crown Court at Reading of sexual activity with a child. The prosecution alleged that he intentionally touched a 13-year-old boy’s penis while they recovered a chain. The appellant accepted contact but maintained that it was accidental.

The Crown was permitted to adduce evidence of a 1995 incident, for which the appellant had received a police caution after touching another 13-year-old boy’s penis. The appellant challenged its admission under section 101(1)(d) of the Criminal Justice Act 2003, relying on the age of the single incident and the practical difficulty of contesting it after the relevant paperwork had been lost.

The appeal concerned whether the earlier incident was capable of proving propensity and whether admitting it made the trial unfair.

1. Appeal dismissed. The judge was entitled to admit the 1995 incident as bad-character evidence under section 101(1)(d) of the Criminal Justice Act 2003.

2. Although the earlier incident was a single event occurring about eleven and a half years before the charged offence, its features were sufficiently distinctive. In each incident, the conduct alleged was the touching of a 13-year-old boy’s penis, accompanied by the appellant placing an arm around the boy. A jury could reasonably regard that evidence as assisting on the live issue whether the present touching was intentional rather than accidental.

3. The court applied the approach in R v M [2006] EWCA Crim 3408. That authority recognised that a single old incident will rarely establish continuing propensity without special features or intervening manifestations. The present similarities were nevertheless capable of providing the requisite evidential assistance.

4. The loss of paperwork about the caution, the appellant’s dyslexia and memory difficulties, and the resulting need for live evidence were relevant to fairness under sections 101(3) and 101(4) of the Criminal Justice Act 2003 and section 78 of the Police and Criminal Evidence Act 1984. They did not show that the judge’s discretionary assessment was plainly wrong. The defence had the earlier witness statement, had an opportunity to address the evidence, and the judge could ensure fairness through directions to the jury. There was no complaint about those directions.

5. The court made a recovery of defence costs order, limited to counsel’s fees.

• Court of Appeal (Criminal Division) — in [2009] EWCA Crim 498, dismissed the appellant’s appeal against conviction and made a limited recovery of defence costs order.
• Crown Court at Reading — on 3 January 2008, convicted the appellant of sexual activity with a child; on 8 February 2008, imposed a community sentence with a three-year probation requirement.