McDonald v R

Previous convictions for possessing and using firearms may be admitted as propensity evidence where they are sufficiently relevant and the prosecution case is not weak. The jury must decide whether propensity is proved and must not treat it as proof of guilt by itself.

A trial judge may fairly explain the objective limitations of identification evidence even where the defence relies upon descriptions. A material omission or improper judicial interruption will not make convictions unsafe where, viewed as a whole, the evidence of guilt is overwhelming and the irregularity caused no significant injustice.

The appellant was convicted unanimously at the Crown Court at Manchester of two attempted murders and firearms offences arising from a shooting outside a Bolton nightclub in 2000. He received life sentences with a minimum term of 18½ years for the attempted murders, with concurrent sentences for the firearms offences.

He appealed against conviction and sentence. The principal issues were the admission and treatment in the summing up of his previous firearms convictions, the fairness of the judge’s directions on identification and CCTV evidence, interventions during defence counsel’s closing speech, the admission of telephone-call records, and alleged police bad faith. The central question was whether any identified irregularity rendered the convictions unsafe.

Appeals against conviction and sentence dismissed.

1. The previous firearms convictions were properly admitted. Applying the guidance in R v Hanson [2005] EWCA Crim 824, the court held that the prosecution case was strong, rather than one impermissibly bolstered by bad-character evidence. The convictions were highly relevant to a propensity to possess and use firearms. The judge’s directions correctly required the jury to decide whether propensity was proved and prohibited conviction merely, or mainly, because of previous convictions.

2. The judge was entitled to explain the inherent and objective limitations of identification and description evidence, even though the defence relied on aspects of that evidence. The CCTV direction accurately drew attention to the poor quality and limitations of the footage. However, the summing up should have stated more clearly the defence contention that the man identified as Male 1 could not have been the gunman. That omission was a defect.

3. The judge should not have interrupted defence counsel’s closing speech in the jury’s presence. Consistently with R v Tuegel [2000] 2 Cr App R 361, the point should ordinarily have been raised at a natural break, after the address, or in the summing up. The intervention risked creating an adverse impression of counsel. It was nevertheless immaterial because the number of men at the car boot did not affect the decisive evidential issue.

4. The Vodafone record was correctly admitted. Underlying computer printouts would have been real evidence under R v Spiby [1990] 91 Cr App R 186. There was no reason to doubt the accuracy of the copied record merely because it had been prepared for intelligence purposes.

5. Despite the defects identified, the evidence linking the appellant to the car, firearms, telephone calls, DNA and events after the shooting was overwhelming. The convictions were safe. The seriousness of two unprovoked firearm attempted murders in a public place fully justified the minimum term.

• Court of Appeal (Criminal Division) — dismissed the appeals against conviction and sentence: [2011] EWCA Crim 2933.
• Crown Court at Manchester — the appellant was convicted unanimously on 15 December 2010 and sentenced on 17 December 2010.