R v Peter Bruce Lee

Evidence is not important explanatory evidence merely because it completes the narrative, explains subsequent events, or might answer a jury’s questions about delay. Under section 102 of the Criminal Justice Act 2003, it must be evidence without which the jury would find it impossible or difficult properly to understand other evidence.

Bad-character evidence must be admitted through its correct statutory gateway. Where it is, in substance, propensity evidence, the court must consider it on that basis and give the jury clear directions about its permitted use. A conviction is unsafe where evidence wrongly admitted as explanatory may have been used as propensity evidence without an adequate direction.

The defendant was tried on seven counts of indecent assault involving his stepdaughter, A, and her friend, B. The jury did not agree on the counts concerning A and one count concerning B. The Crown offered no evidence on those counts. It convicted the defendant only of a further count concerning B.

At trial, the judge admitted A’s evidence that the defendant had placed a camcorder in a bathroom and that she had later found indecent images of pubescent children on a family computer. Neither matter was charged. The evidence was admitted as important explanatory evidence through gateway (c) for bad-character evidence.

The defendant appealed against the conviction, contending that the evidence did not meet that gateway and that the summing-up had improperly enabled the jury to use it as propensity evidence without an appropriate direction.

1. Appeal allowed and conviction quashed. The evidence concerning the bathroom camcorder and computer images was not admissible as important explanatory evidence. Section 102 of the Criminal Justice Act 2003 requires that, without the evidence, the jury would find it impossible or difficult properly to understand other evidence. Evidence which merely fills out the narrative, explains later events, or may answer questions about delay does not satisfy that condition.
2. The evidence concerning A’s uncharged allegations was comprehensible without the additional material. The asserted camcorder incident was not in fact the reason why A left home. The possibility that the jury might wonder about delay could not itself justify admission, although cross-examination directed to delay might later have altered the position.
3. The evidence was potentially capable of being propensity evidence through gateway (d), consistently with R v D, P and U [2011] EWCA Crim. 1474. The trial judge was never asked to determine admissibility on that basis or to exercise the relevant discretion. The court did not determine whether the evidence would ultimately have been admitted through that gateway.
4. The summing-up nevertheless presented the material in a way that invited its use as showing a propensity to commit the charged offences, but gave no proper propensity direction. Given the cross-admissibility direction, the jury may have relied on that material when convicting on the count concerning B. In the context of its inability to agree on the other allegations, that possibility could not be excluded. The conviction was therefore unsafe.
5. The court emphasised that counsel and judges must identify the precise basis on which bad-character evidence is admitted. Before summing-up, they must review the permissible use of the evidence, since it may become admissible through a different gateway. The jury must receive focused assistance on the use it may properly make of such evidence.

• Court of Appeal (Criminal Division): In [2012] EWCA Crim 316, allowed the defendant’s appeal and quashed his conviction for indecent assault on a child.
• Trial court (not stated): The defendant was convicted on one count after a jury trial. The jury did not agree on the remaining counts, on which the Crown later offered no evidence.