Cox v R.

Evidence of prior incidents may be admissible under gateway (d) of Criminal Justice Act 2003 where, cumulatively, it is capable of showing a propensity to take up, use, or seek to use knives unlawfully and aggressively during disputes. Its relevance is not confined to whether the accused used the weapon. It may assist the jury in deciding why the weapon was obtained, carried and used, and whether the asserted self-defence account is true.

Exclusion under section 101(3) depends on whether admission would have such an adverse effect on trial fairness that it ought not be admitted. The court should assess matters including the age of the incidents, the risk of satellite issues, and the evidential context.

The appellant was convicted of murder at the Crown Court at Bristol and sentenced to life imprisonment with a minimum term of 14 years. It was common ground that she stabbed the deceased. Her defence was lawful self-defence after an alleged attack and strangulation. The judge also left the partial defence of loss of control to the jury.

The prosecution was permitted to adduce the circumstances of two earlier convictions and a binding-over. The appellant contended that the evidence did not satisfy gateway (d) in section 101(1) of the Criminal Justice Act 2003, and that it should in any event have been excluded under section 101(3). The central issue was whether that bad-character evidence was relevant and fairly admitted.

1. Appeal dismissed. The trial judge did not err in admitting the evidence of the appellant’s earlier knife-related incidents.

2. The relevant issue was not confined to the undisputed fact that the appellant obtained and used a knife. The jury had to decide why she obtained it, took it back across the room and used it. They also had to assess her account of self-defence and the possibility that she acted in anger or retaliation.

3. The three incidents were cumulatively capable of showing that, when angry or threatened, the appellant was quick to take up a knife and had a propensity to use, or seek to use, knives unlawfully and aggressively against others. The first involved use of a kitchen knife beyond reasonable self-defence. The second involved production of a knife and threats to stab. The third was capable of showing an intention to find and use a knife aggressively. That evidence was relevant under section 101(1)(d) of the Criminal Justice Act 2003.

4. The judge was entitled to refuse exclusion under section 101(3). He considered the age of the first incident and the risk of satellite litigation. The essential facts of the earlier incidents were not materially disputed, the incidents were not trivial, and the evidence was not used to strengthen an otherwise weak prosecution case. The discretionary decision was within the range open to a reasonable decision-maker.

5. The decision to leave loss of control to the jury was not open to criticism. There was also powerful independent evidence against the appellant. The jury’s verdict was safe.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction: [2014] EWCA Crim 804.
• Crown Court at Bristol: convicted the appellant of murder on 16 May 2013 and imposed life imprisonment with a minimum term of 14 years.