Johnson & Ors, R v

For the purposes of Criminal Justice Act 2003, evidence said to show that a defendant would participate in a conspiracy to burgle is, in substance, propensity evidence. Section 103(2) provides simple permissive methods of proving propensity. It does not exhaust the ways in which propensity may be established. Thus, previous relevant burglary or dishonesty convictions may be capable of proving a propensity to join a conspiracy to burgle even though the later conspiracy charge is not within a prescribed offence category.

Admission of such evidence remains a matter for the trial judge, subject to fairness and appropriate directions. An appellate court will intervene only where the ruling was plainly wrong or Wednesbury unreasonable.

Five defendants were convicted at the Crown Court at Reading of a single conspiracy to commit burglary. The prosecution alleged that sixteen high-value burglaries of country houses and commercial premises formed one professionally planned conspiracy. Four defendants also challenged the admission and the jury directions concerning selected previous convictions. The fifth defendant, against whom no bad-character evidence was admitted, renewed an application for permission to appeal against conviction.

All five defendants also sought permission to appeal their substantial sentences. The central issues were whether the bad-character evidence was lawfully admitted as propensity evidence, whether the directions rendered the convictions unsafe, and whether the sentences were manifestly excessive.

1. Conviction appeals dismissed. The court dismissed the appeals of O’Loughlin, Chad Johnson, Nicholls and Albi Johnson. It refused Ricky Johnson permission to appeal against conviction. The convictions were safe.

2. The trial judge erred in treating the question whether a defendant would participate in a conspiracy to burgle as distinct from propensity. The two were synonymous. The error was nevertheless immaterial because the evidence could properly have been admitted as propensity evidence.

3. Section 103(2) of the Criminal Justice Act 2003 supplies non-exclusive means of proving propensity. The exclusion of conspiracy to burgle from the prescribed theft category did not prevent relevant prior burglary and dishonesty convictions from establishing a propensity to participate in a conspiracy to burgle by another route. The jury directions accurately identified propensity, made clear that convictions could not alone prove guilt, and fairly required consideration of all the evidence.

4. The evidence against each appellant was sufficient to leave the issue to the jury. In particular, the court held that the admission ruling for Nicholls was not plainly wrong or Wednesbury unreasonable, applying the appellate approach stated in Hanson [2005] 2 Cr App R 21.

5. Sentence applications refused. The conspiracy was near the top end of seriousness because of its planning, reconnaissance, use of stolen vehicles and balaclavas, the high value of the stolen property, and the targeting of isolated homes. The absence of violence was properly reflected. Reconnaissance was a significant contribution to this professional offending. The judge had properly considered totality and none of the sentences, ranging from eight to eleven years, was manifestly excessive. The sentencing comparison in R v Gibbs [2000] 1 Cr App R (S) 261 supported that conclusion.

• Court of Appeal (Criminal Division): In [2009] EWCA Crim 649, dismissed four appeals against conviction, refused Ricky Johnson permission to appeal against conviction, and refused all five applications for permission to appeal against sentence.
• Crown Court at Reading: On 11 February 2008, convicted all five defendants of conspiracy to commit burglary with intent to steal and imposed sentences of imprisonment.