Norris v R.

Post-offence conduct may be admitted as bad-character evidence where it is capable of demonstrating a relevant character trait or propensity bearing on important issues at trial. Its admissibility depends on its probative value and fairness, not merely on the fact that it post-dates the offence.

Careful directions which confine such evidence to defined issues, and prevent its use on an earlier evidential threshold, may adequately guard against prejudice. A conviction is not unsafe merely because counsel chose not to seek further expert evidence or an adjournment. There must be an identifiable error or irregularity which rendered the trial unfair or the conviction unsafe.

The applicant and Gary Dobson were tried before Treacy J and a jury at the Central Criminal Court for the murder of Stephen Lawrence. Both were unanimously convicted on 3 January 2012 and the applicant was sentenced to detention during Her Majesty’s pleasure with a minimum term of 14 years and three months.

The prosecution relied on forensic traces found on clothing recovered from the applicant’s bedroom and on covert recordings made about 20 months after the killing. The recordings showed racist and violent conduct. They were admitted as bad-character evidence only after the jury had resolved the threshold issue of possible contamination of the forensic exhibits.

After a single judge refused leave, the applicant renewed his application. He contended that the bad-character evidence was unfairly admitted and that an allegedly late prosecution reliance on secondary transfer had caused trial unfairness and required further expert evidence.

1. The renewed application for leave to appeal was refused. Neither proposed ground was arguable and the conviction was not unsafe.

2. The Footscray recordings were evidence of reprehensible behaviour within sections 98 and 112(1) of the Criminal Justice Act 2003. Although the conduct occurred about 20 months after the killing, it was capable of bearing on the disputed issues of participation in the attack and the foresight required for murder. The evidence was therefore admissible under section 101(1)(d).

3. The judge was entitled to find that the evidence had sufficient probative value and was not being used merely to bolster a weak case. Its prejudicial effect did not require exclusion under section 101(3) of the 2003 Act or section 78 of the Police and Criminal Evidence Act 1984. Applying the approach explained in R v Saul McMinn [2007] EWCA Crim 3024, the court found no fault in the judge’s exercise of judgment.

4. The directions were clear and effective. The jury could not use the recordings when deciding whether contamination of the forensic exhibits had been excluded. Only after being sure of that threshold issue could it use the material when considering participation, intention or foresight. The directions also warned that the recordings could not by themselves identify an attacker or prove guilt.

5. There had been no unfair or misleading alteration in the Crown’s case on secondary transfer. The possibility of transfer and contamination had been extensively examined at trial. Defence counsel’s decision to use the point in closing rather than seek an adjournment or recall experts was a reasonable forensic strategy. Further expert evidence could not identify an error or irregularity capable of making the trial unfair or the conviction unsafe. The request for an adjournment and funding was accordingly refused.

• Court of Appeal (Criminal Division): The applicant renewed his application after a single judge had refused leave. This court refused the application: [2013] EWCA Crim 712.

• Central Criminal Court: Before Treacy J and a jury, the applicant was unanimously convicted of murder on 3 January 2012. He was sentenced to detention during Her Majesty’s pleasure with a minimum term of 14 years and three months.