Director of Public Prosecutions v Agyemang

Evidence of a previous conviction is not evidence of bad character when it relates to the alleged facts of the offence charged or is used to prove an essential ingredient of that offence. It is admissible without relying on the bad-character gateways in the Criminal Justice Act 2003. A ruling excluding previous convictions as propensity evidence does not prevent the prosecution from relying on the same conviction for a different and relevant purpose, such as proving a driving disqualification. A previous evidential ruling may be reopened where there is a sufficiently cogent reason in the interests of justice.

The Director of Public Prosecutions appealed by way of case stated against the decision of the Hertfordshire Justices at Stevenage Magistrates’ Court on 28 January 2009. The respondent faced several motoring and public-order allegations arising from one incident.

The prosecution had previously failed to admit earlier convictions as bad-character evidence showing a propensity to drive with excess alcohol. At trial, the prosecution sought to rely on a memorandum of conviction to prove that the respondent had been disqualified from driving, an essential element of the remaining charge. The Justices treated their earlier ruling as preventing reliance on the conviction and dismissed the information. The issue was whether that evidence could be adduced to prove the fact of disqualification.

1. The appeal was allowed. The Justices’ decision was quashed and the information was remitted to a fresh bench of justices to be heard according to law.
2. The prosecution relied on the earlier conviction to prove an essential ingredient of driving while disqualified, not as evidence of bad character under sections 101 ff of the Criminal Justice Act 2003. Section 98 excludes from the concept of bad-character evidence evidence concerning the alleged facts of the offence charged.
3. Evidence of the respondent’s disqualification concerned the alleged facts of the driving-while-disqualified offence. It was therefore admissible without resort to the bad-character gateways. The court relied on the principle stated in R v Enright and Gray [2006] Cr App R 4, that evidence falling within the statutory exclusions is admissible without more ado.
4. The earlier ruling concerned the proposed use of convictions to show a propensity to commit offences involving excess alcohol. It did not determine admissibility for the separate purpose of proving disqualification. The ruling was therefore irrelevant to the issue at trial.
5. Even if the earlier ruling had extended to the later issue, the Justices could have reopened it where there was a sufficiently cogent reason in the interests of justice. Treating the ruling as absolutely binding created an obvious injustice and absurdity.
6. The court saw no reasonable basis for excluding the evidence under section 78 of the Police and Criminal Evidence Act 1984.

• Stevenage Magistrates’ Court: The Justices refused to admit the memorandum of conviction and dismissed the information for driving while disqualified.
• High Court (Administrative Court): The appeal by way of case stated was allowed. The dismissal was quashed and the matter was remitted to a fresh bench of justices.