Francis, R. v

Under section 100(1)(b) of the Criminal Justice Act 2003, non-defendant bad-character evidence is admissible only where it has substantial probative value on a matter of substantial importance. The assessment is fact-sensitive and is made in the context of the case as a whole.

A court may refuse such evidence because it lacks the required probative value. It may not instead invoke a residual discretion to exclude evidence that satisfies the statutory test, save through case management. A witness’s answer does not open the door to excluded bad-character evidence unless, fairly read in context, it conveys a materially misleading impression of non-violence.

The appellant was convicted at Kingston upon Thames Crown Court of assault occasioning actual bodily harm and affray after an altercation on a building site. The prosecution alleged that he used a hammer aggressively towards plumbers after discovering that his laptop was missing, and that one plumber was injured during the ensuing struggle.

The defence sought leave under section 100 of the Criminal Justice Act 2003 to adduce a witness’s old conviction for violent disorder and another witness’s youth warning for assault. The trial judge refused both applications. The appellant contended that the evidence bore substantially on who had been the aggressor and that a later answer by one witness had opened the door to the warning. He also sought a direction on reasonable force following an allegedly unlawful arrest.

1. Appeal dismissed. The trial judge was entitled to refuse leave to adduce the proposed bad-character evidence. Although the identity of the aggressor was a matter of substantial importance, the evidence did not have substantial probative value for the purposes of section 100(1)(b) of the Criminal Justice Act 2003.

2. The statutory assessment is highly fact-sensitive. It asks whether the evidence substantially assists proof of the relevant issue in the case as a whole. Here, the age of Lee Parker’s conviction, the low-level and non-conviction nature of Adam Clark’s warning, and the lack of meaningful similarity between earlier street incidents and a workplace confrontation meant that the jury would not have been assisted by the material.

3. The court accepted the principle stated in R v Brewster and Cromwell [2010] EWCA (Crim) 1194: once the statutory threshold is met, there is no residual discretion to refuse admission other than through case management. That principle did not assist the appellant. The judge had refused the evidence for insufficient probative value, rather than by exercising an impermissible residual discretion.

4. Adam Clark’s answer that he had not assaulted the appellant and had not done so on any other occasion did not, fairly construed in its context, assert a general disposition never to behave violently. It therefore did not justify reopening the excluded bad-character application.

5. In any event, the convictions were safe. The appellant admitted becoming very angry, returning to the canteen with a claw hammer, and verbally losing control. Independent evidence also described his continuing aggressive and threatening conduct. No direction about reasonable force on an allegedly unlawful arrest was required, because the prosecution did not rely on his later conduct towards the police as part of the affray and no separate charge arose from the arrest.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction.

• Crown Court at Kingston upon Thames: On 4 March 2013, convicted the appellant of assault occasioning actual bodily harm and affray. On 12 April 2013, imposed concurrent 12-month community orders, including unpaid work and an eight-week curfew.