Hoare, R. v

Evidence of a complainant’s bad character is not admissible merely because it is relevant. Under Criminal Justice Act 2003, section 98, it must genuinely concern the alleged facts of the offence. A remote conviction for conduct of a wholly different kind will not satisfy that requirement.

Nor is such evidence important explanatory evidence where the jury can readily understand the issues without it. Under section 100(1)(b), the evidence must have substantial probative value on a matter of substantial importance. Where self-defence turns on whether the complainant used a knife, the defendant’s knowledge of an old and dissimilar conviction adds nothing material to the reasonableness of using force to disarm an attacker.

The appellant was convicted in the Crown Court at Maidstone of inflicting grievous bodily harm and assault occasioning actual bodily harm, and was sentenced to three years’ imprisonment.

His case was that the complainant attacked him with a knife and that he responded in self-defence. The defence sought to adduce the complainant’s 2001 conviction for murder, which the appellant knew about. The Recorder refused the application. During the appellant’s evidence, he nevertheless referred to the conviction; the Recorder refused the defence application to discharge the jury and directed the jury to disregard it.

The appeal challenged the exclusion of the conviction and the refusal to discharge the jury.

1. Appeal dismissed. The Recorder was entitled to exclude the complainant’s previous murder conviction, to refuse to discharge the jury after the appellant introduced it in evidence, and the convictions were safe.

2. The conviction was not admissible under section 98 of the Criminal Justice Act 2003. Relevance alone was insufficient. It was over 14 years old and too remote, both temporally and in its connection with the alleged offending, to concern the alleged facts of the offences.

3. The court also agreed that the conviction was not important explanatory evidence under section 100(1)(a). The jury could understand and determine the case without knowing of it. The statutory provisions on self-defence in the Criminal Justice Act and Immigration Act 2008 did not themselves determine the separate question of admissibility.

4. The only potentially available gateway was section 100(1)(b). The central factual issue was whether the complainant had attacked the appellant with a knife. If the jury accepted, or might have accepted, that account, punches used to disarm or deter the attacker could be reasonable without reference to the complainant’s previous conviction. The conviction therefore added nothing material to the appellant’s asserted instinctive response.

5. The conviction also lacked substantial probative value on whether there had been a knife attack. The earlier offence was of a wholly different kind, occurred when the complainant was 15, and was followed by no further convictions. The appellant had continued to associate and live with him despite knowing of it. The Recorder was entitled to regard the proposed evidence as of at most limited value and potentially prejudicial or distorting.

6. The Recorder was also entitled to refuse to discharge the jury after finding that the appellant’s reference to the conviction was deliberate and gratuitous. A direction to put the matter out of mind was sufficient. The inconsistent interview account and the 999 call strongly supported the complainant’s account, confirming the safety of the convictions.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction: [2016] EWCA Crim 1659.
• Crown Court at Maidstone: The appellant was convicted after trial of inflicting grievous bodily harm and assault occasioning actual bodily harm, and sentenced to three years’ imprisonment in total.