R v Bowman & Anor

For the bad-character gateway in section 101(1)(d), the decisive question is whether the proposed evidence is relevant to a real and important issue. The prosecution need not first prove that issue by primary evidence. Evidential sufficiency is addressed through dismissal, no-case and fairness procedures.

A single and relatively old conviction can demonstrate propensity where unusual or distinctive features give it real probative force. The trial judge must assess the strength of the prosecution case, the accuracy of the available conviction evidence and the risk of unfair prejudice. A careful limiting direction may prevent the jury from treating a previous conviction as proof of present guilt.

At Leeds Crown Court, Bowman and Lennon were convicted of firearms offences arising from an incident in which a gun was discharged in West Yorkshire. Bowman was acquitted of attempted murder, and Lennon was acquitted of that count on a submission of no case to answer.

The prosecution case was that the appellants had brought the firearm from London. Bowman maintained that he had taken it from Aslam during a confrontation at the house. The trial judge admitted each appellant’s earlier firearm conviction as propensity evidence.

Both appellants appealed by leave of the single judge. The central issue was whether the judge had wrongly admitted their bad character under section 101(1)(d) of the Criminal Justice Act 2003.

1. The appeals against conviction were dismissed. The judge had not erred in admitting either appellant’s previous firearm conviction or in directing the jury as to its limited use.

2. Section 101(1)(d) of the Criminal Justice Act 2003 concerns relevance to an important issue, not a preliminary requirement that the prosecution must already have proved that issue by primary evidence. The proper question is whether the bad-character evidence throws light on a real issue in the case. Questions of evidential sufficiency arise on a dismissal application, a submission of no case, or under the statutory fairness provisions. This construction followed R v Bullen [2008] EWCA Crim 4 and was reinforced by R v Hanson [2005] EWCA Crim 824.

3. A single previous conviction is not legally incapable of establishing propensity. Its age and singularity require caution, but distinctive and unusual similarities may supply probative force. The court applied the approach in R v Brown [2012] EWCA Crim 773, R v Burdess [2014] EWCA Crim 270 and R v Hanson [2005] EWCA Crim 824. The trial judge had a broad discretion, with which an appellate court should interfere only for legal error or an unsustainable exercise of that discretion.

4. Bowman’s earlier offence and the alleged present offending shared the distinctive feature of a firearm being carried in a motorcar to facilitate other criminal conduct. The basic facts of the earlier conviction were available and accepted, unlike the position in R v M [2012] EWCA Crim 1588. Its admission was therefore within the judge’s discretion.

5. Lennon’s earlier conviction also had sufficient probative force. Both incidents allegedly involved his public possession and discharge of a loaded firearm, with reckless and violent conduct. The prosecution case was not weak. The judge had considered possible prejudice and gave a careful direction that the convictions were not proof that either appellant had committed the present offences.

• Court of Appeal (Criminal Division): Dismissed both appellants’ appeals against conviction.
• Leeds Crown Court: On 20 December 2012, Bowman and Lennon were convicted of possession of a firearm with intent to endanger life, possessing ammunition without a firearms certificate, and possessing a prohibited firearm. They were sentenced on 21 December 2012.