Harding, R. v

Bad-character evidence admitted through the propensity gateway in Criminal Justice Act 2003 section 101(1)(d) requires a court to decide whether the convictions establish a propensity, whether that propensity makes the charged offending more likely, and whether admission would be unjust or unfair. Such evidence must not be used merely to reinforce a weak prosecution case.

Where there is substantial evidence connecting the defendant with the offence, previous convictions for the same type of offending may properly assist the jury in assessing the credibility of an innocent explanation for that evidence. The fairness of a late application depends on practical prejudice. A delay may be fair where the relevance of the convictions emerges only from the defendant's evidence and the defendant could seek recall to address them.

The appellant was convicted at Liverpool Crown Court of robbery and attempted robbery. The prosecution relied on DNA found on a glass from which one robber had drunk, and on mixed DNA evidence from wire used to restrain a victim. The appellant denied involvement and gave an innocent explanation for the DNA on the glass.

After he gave evidence in chief, the judge admitted evidence of earlier robbery convictions under the propensity gateway in Criminal Justice Act 2003 section 101(1)(d). The appellant appealed against conviction, contending that the evidence improperly bolstered a weak case and that its late admission caused unfair prejudice. The central issues were admissibility and the fairness of the timing of the renewed application.

1. Appeal dismissed. The earlier robbery convictions were properly admitted. Applying the three questions identified in R v Hanson [2005] EWCA Crim 824, the court held that the convictions established a propensity to commit robbery, made the appellant's participation more likely, and did not render the proceedings unfair.

2. The prosecution case was not weak. The DNA on the glass was powerful evidence placing the appellant at the house. The mixed DNA evidence on the wire was not conclusive, but significantly increased the likelihood that he was present during the robbery. In that setting, the previous robberies were highly relevant to whether his innocent explanation for the DNA on the glass was true.

3. The absence of details for the 1989 robberies did not materially reduce their relevance. A history of robbery increased the likelihood that the DNA had been deposited during the robbery irrespective of the precise method used. The 1996 robbery also had similar features to the charged offending.

4. The court accepted the principle in R v Brima [2007] 1 Cr App R 24 that a bad-character application will often desirably be made at the end of the prosecution case. But this was unusual: the significance of the convictions became clear only when the appellant gave evidence to explain the DNA. The timing caused no real prejudice, and counsel could have sought the appellant's recall so that the convictions could be addressed in examination in chief.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2010] EWCA Crim 2145.
• Crown Court at Liverpool: convicted the appellant of robbery and attempted robbery on 31 July 2009.