Daly, R v

Section 104(1) of the Criminal Justice Act 2003 concerns only bad-character evidence relied on to show a co-defendant’s propensity to be untruthful. It does not exhaust the important matters in issue for the co-defendant bad-character gateway.

Where the circumstances mean that a co-defendant’s denial of participation necessarily implicates the other defendant, evidence of the co-defendant’s propensity to commit the relevant type of offence may have substantial probative value on an important issue. A bare denial remains insufficient. Once the statutory conditions are met, the judge must admit the evidence. A conviction is unsafe where such evidence was wrongly excluded and the appellate court cannot be satisfied that the jury would necessarily have reached the same verdict.

The appellant and his co-accused had worked at an elderly woman’s flat. Cash later went missing. The co-accused had previous convictions, including a conviction for a similar distraction burglary. The appellant, who had no convictions, sought to adduce that conviction as bad-character evidence.

At trial in the Crown Court at Blackfriars, the judge excluded both the bad-character evidence and a letter said to have been written on the co-accused’s behalf. The appellant was convicted of theft by a majority of 11 to 1 and received a suspended sentence. He appealed against conviction with leave of the single judge.

The central issue was whether the co-accused’s denial, in circumstances where one or both defendants must have committed the theft, made his previous similar conviction admissible as evidence of an important matter in issue between the defendants.

1. Appeal allowed. The conviction was quashed. The Crown indicated that it would not seek a retrial.

2. The trial judge erred by treating section 104(1) of the Criminal Justice Act 2003 as decisive. That provision applies only where the relevant issue is a defendant’s propensity to be untruthful. It does not exhaust the other important matters which may arise under the co-defendant bad-character gateway.

3. The relevant issue was the co-accused’s propensity to commit a theft of this kind, compared with the absence of such evidence against the appellant. In the particular circumstances, the co-accused’s denial necessarily involved the contention that the appellant, or both defendants, had committed the theft. That was more than a bare denial of participation.

4. The court applied the approach in R v Phillips [2011] EWCA Crim 2935. Although a mere denial does not itself satisfy the statutory gateway, the exclusive nature of the possible perpetrators and the co-accused’s cross-examination of the appellant made the matter an important issue between them. The previous similar conviction had potentially substantial probative value and should have been admitted.

5. The exclusion rendered the verdict unsafe. The appellant had previously been of good character, whereas the excluded conviction bore similarities to the alleged offence. The court could not be satisfied that the majority jury would necessarily have returned the same verdict if it had heard that evidence.

6. It was unnecessary to decide the separate complaint concerning the letter. The court observed that the rebuttal basis advanced at trial was rightly rejected, although a hearsay application might have given strong grounds for admission.

• Court of Appeal (Criminal Division) — allowed the appeal against conviction and quashed the appellant’s theft conviction: [2014] EWCA Crim 2117.
• Crown Court at Blackfriars — convicted the appellant of theft by a majority of 11 to 1 and imposed nine months’ imprisonment, suspended for 12 months.