Slack and Johnson, R v

Previous-conviction evidence admitted to show a propensity for drunken violence may remain relevant where the prosecution case develops from physical participation in a fatal assault to encouragement of it. The court should assess relevance and fairness in the context of the violence as a whole, rather than draw an artificial line between connected stages of the incident.

A jury direction on bad character must warn that convictions cannot themselves prove guilt, explain why the evidence was admitted and guide the jury as to its permitted use. No rigid formula is required. In a joint trial, clear and repeated directions that one defendant’s out-of-court allegations are not evidence against another may adequately protect against prejudice.

Slack and Johnson, R v concerned appeals against conviction following a joint murder trial in August 2008. Slack was convicted of murder. Johnson was acquitted of murder but convicted of manslaughter, having also pleaded guilty to assault occasioning actual bodily harm.

The prosecution case evolved during the trial. The evidence ultimately alleged that Johnson had assaulted the deceased and encouraged Slack’s use of a walking stick, rather than physically participating in its fatal use. Johnson challenged the continuing admission of her previous convictions and the judge’s refusal to discharge the jury. She also challenged the bad-character direction. Slack contended that prejudice from Johnson’s out-of-court allegations required severance or discharge of the jury.

1. The appeals were dismissed. The convictions of Slack for murder and Johnson for manslaughter were safe.

2. Johnson’s previous convictions were correctly admitted under Criminal Justice Act 2003, section 101(1)(d). They were capable of showing a propensity to use uncontrolled violence when intoxicated and were relevant to an important matter in issue. The trial judge had properly considered fairness.

3. The evidence remained admissible after the prosecution case was refined to allege encouragement rather than Johnson’s physical participation in the use of the walking stick. The jury had to decide whether she encouraged murder, manslaughter or no further violence. Her prior drunken violence was relevant to that issue and to her state of mind. The earlier assault and the fatal violence formed a sufficiently connected sequence; it would have been artificial to draw an analytical line between them.

4. There was no error in refusing to discharge the jury. That application depended on the proposition that the bad-character evidence had become inadmissible, which the court rejected.

5. The summing-up gave an adequate warning against undue reliance on previous convictions. It explained their possible relevance and made clear that they could not prove guilt by themselves. Applying the guidance in Hanson [2005] 2 Cr App R 21 and Edwards [2006] 1 Cr App R 3, the court held that no prescribed wording was required and that the direction, read as a whole, was sufficient.

6. A joint trial was appropriate. The judge gave repeated and clear directions that Johnson’s and Comer’s out-of-court statements were not evidence against Slack. The independent evidence against Slack was strong, and there was no resulting unfairness requiring severance or discharge.

• Court of Appeal (Criminal Division): By [2010] EWCA Crim 1149, dismissed Slack’s appeal against his murder conviction and Johnson’s appeal against her manslaughter conviction.

• Crown Court: At the August 2008 joint trial, Slack was convicted of murder. Johnson was acquitted of murder, convicted of manslaughter and pleaded guilty to assault occasioning actual bodily harm.