Saint, R v

Bad-character evidence is not important explanatory evidence merely because it may give context to an intelligible item of evidence. Under Criminal Justice Act 2003, the evidence must be necessary or materially helpful to understanding other evidence and the case as a whole.

Where evidence is instead advanced through the gateway for an important matter in issue, the court must identify a matter of substantial importance and exclude evidence whose slight probative value is outweighed by its seriously prejudicial effect. Evidence of consensual sexual interests and concealment techniques, remote from the charged conduct, may create grave prejudice without materially proving identity or guilt.

The appellant was convicted at Luton Crown Court of false imprisonment, two indecent assaults and rape alleged to have occurred in January 1989. A DNA profile obtained from an intimate swab was later matched to him.

The prosecution adduced evidence of his activities in the area during the 1990s, including wearing camouflage and an interest in watching couples having consensual sex. It relied on that material as important explanatory evidence under Criminal Justice Act 2003.

On appeal against conviction, the principal issue was whether that bad-character evidence was admissible and, if not, whether its admission rendered the convictions unsafe. The appellant also challenged aspects of the summing up concerning the evidence of PC Whyatt, alleged speculation, and a physical characteristic.

1. Appeal allowed. The convictions were unsafe because the judge wrongly admitted highly prejudicial bad-character evidence.

2. The evidence was not admissible as important explanatory evidence under section 101(1)(c) of the Criminal Justice Act 2003. The evidence said to require explanation was Mr J’s account of hearing footsteps. That account was readily intelligible without the later evidence of the appellant’s nocturnal activities. The additional evidence did not identify the appellant as the person making the footsteps, particularly as it concerned conduct four or more years after the alleged offences. It therefore failed both limbs of section 102.

3. The court applied the warning in Davis [2008] EWCA Crim 1156: evidence of propensity must not enter through the explanatory-evidence gateway, nor may evidence admitted through that gateway be used for propensity without the safeguards applicable to section 101(1)(d).

4. Gateway (d) extends beyond propensity to commit offences of the same kind. The Crown could properly prove, in a sanitised form, that the appellant frequented the area late at night. Evidence relevant to that point was not confined to events before the charged offences. But the genuinely prejudicial features—dogging, camouflage, face paint and night sight—were relevant, if at all, only to the footsteps issue. That issue was not shown to be of substantial importance.

5. In any event, section 101(3) required exclusion. The admitted material had very low permissible probative value but a very high capacity to prejudice the jury. It risked portraying the appellant as sexually obsessive or voyeuristic without materially strengthening the real case against him. The judge’s direction did not cure that prejudice.

6. The remaining complaints did not independently undermine the convictions. The judge adequately left PC Whyatt’s timing evidence to the jury. The observations concerning possible sources of the appellant’s knowledge, and the brief treatment of his physical characteristic, caused no injustice. The court indicated provisionally that, if sought, it would order a retrial after hearing submissions.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction in [2010] EWCA Crim 1924, holding that the bad-character evidence rendered the convictions unsafe.
• Crown Court at Luton: On 30 June 2009, convicted the appellant of false imprisonment, two indecent assaults and rape, and imposed a total sentence of nine years and six months’ imprisonment.