Jackson v R.

Bad-character evidence may establish a propensity relevant to identification where the circumstances of a single previous conviction have real probative force in relation to the charge. It need not be admitted on a signature or striking-similarity basis. The court must consider the age of the conviction, the strength of the other evidence and fairness under the Criminal Justice Act 2003.

A clear direction can prevent unfair prejudice if it explains the limited relevance of the conviction, requires the jury to assess the current evidence first, and warns against treating the conviction as proof of guilt. An asserted alternative suspect does not render a conviction unsafe where there is no evidence connecting that person with the offence and the jury have not been misled about the investigation.

The appellant was convicted at Norwich Crown Court of the murder of Gordon Boon. The prosecution case was circumstantial. It relied on the appellant's movements, telephone and CCTV evidence, forensic material, and conduct after the killing.

The trial judge admitted evidence of the appellant's 1990 conviction for murder under the bad-character provisions of the Criminal Justice Act 2003. On appeal, the appellant contended that the earlier conviction had been wrongly admitted and that the investigation of two other men had been inaccurately presented as having eliminated them as suspects.

The central issues were whether the bad-character ruling and directions were unfair, and whether the errors concerning the other men rendered the conviction unsafe.

1. Appeal dismissed. The court held that the verdict was safe. The prosecution case was not weak. Although individual forensic features provided modest support when viewed alone, the jury could properly assess all the temporal, telephone, CCTV, forensic and post-offence circumstances together.

2. The earlier murder conviction was properly admitted. The trial judge had not treated it as evidence of a distinctive signature. He had admitted it because its established features, particularly strangulation and the use and cleaning of a vehicle, could have probative force on the identification of the appellant as the killer. The age of the conviction did not make reliance on it unjust because the similarities retained that force. This approach accorded with Hanson & Others [2005] EWCA Crim 824.

3. The evidence nevertheless carried an obvious risk of prejudice. The judge adequately neutralised that risk. He explained that the jury should first consider the evidence concerning the charged murder, then use the earlier conviction only to the limited extent that any proved and relevant similarities assisted them. He warned that it could not itself prove guilt. A direction need not use the word propensity where it accurately explains the evidence's relevance, the jury's task and the necessary caution.

4. The police witness and prosecuting counsel had inaccurately suggested that the two other men had been eliminated from the inquiry. The error did not make the trial unfair. The defence had not sought to place admissible evidence of their movements before the jury beyond the limited formal admission accepted at trial. The officer's report showed no evidence linking either man to the murder, and the judge accurately directed the jury that nothing had been found to link them to it. The incomplete exploration of their movements therefore did not affect the safety of the verdict.

• Court of Appeal (Criminal Division) Granted leave and dismissed the appeal against conviction: [2011] EWCA Crim 1870.
• Crown Court at Norwich On 23 March 2011, Underhill J convicted the appellant of murder and imposed life imprisonment with a whole-life term.