Tollady, R. v

Where bad-character evidence has been admitted through a gateway in Criminal Justice Act 2003 section 101, the use made of it depends on its relevance to the issues. A previous public-order conviction may support a carefully qualified propensity direction where there are relevant behavioural similarities.

Although the statutory concept of a propensity to untruthfulness is narrower than a propensity to dishonesty, the admissibility of evidence to challenge credibility may be broader under other gateways. The evidence must nevertheless be sufficiently material to credibility. An erroneous credibility direction does not make a conviction unsafe where the evidence was properly relevant to propensity and the jury would in practice have drawn the same bearing on credibility.

The appellant was convicted at the Crown Court at Snaresbrook of affray arising from disorder outside a public house. The prosecution alleged that she participated in a hostile crowd and assaulted police officers. She denied involvement and alleged that the police had fabricated the case to justify the use of CS gas.

At trial, the appellant herself introduced evidence of a 2005 conviction for disorderly behaviour after challenging the evidence of an officer involved in that earlier incident. In summing up, the judge directed the jury that the conviction could bear both on propensity and credibility. The appellant appealed against conviction, challenging the absence of prior discussion of the direction, the propensity direction, and the use of the conviction on credibility.

1. Appeal dismissed. The verdict was safe despite an error in the bad-character direction.

2. It was highly desirable for the proposed direction on the previous conviction to have been discussed with counsel before speeches. The collective failure to do so was unsatisfactory, but did not itself amount to an error of law. Since the jury knew of the conviction, the judge had to address its possible use rather than leave it without direction. Counsel had not been prevented from addressing it in closing.

3. The propensity direction was lawful. The judge correctly left the prior conviction to the jury only if they considered it appropriate, identified the similarities between the two public-order incidents, and warned that bad character could not by itself prove guilt. Although she could have drawn attention to the absence of violence in the earlier incident, that omission was not an error of law.

4. Once evidence is admitted under a gateway in section 101 of the Criminal Justice Act 2003, its permissible use depends on relevance: R v Highton [2005] 1 WLR 3472. The conviction was introduced under section 101(1)(b). The court accepted that, outside section 101(1)(d), evidence may in principle bear more broadly on credibility. However, this single conviction, about five years old, was insufficiently material to credibility. The judge should not therefore have specifically directed the jury that it could be used for that purpose.

5. That error caused no prejudice. The conviction was already properly before the jury and relevant to propensity. As Campbell [2007] 1 WLR 2798 illustrated, a jury learning of a propensity to offend may naturally regard the defendant both as more likely to be guilty and as less likely to be telling the truth. The appeal accordingly failed.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction: [2010] EWCA Crim 2614.

• Crown Court at Snaresbrook: On 19 January 2010, convicted the appellant of affray and imposed a suspended sentence, unpaid work requirement, and prosecution costs.