Erwood, R. v

Under Criminal Justice Act 2003, section 100(1)(b), proposed evidence of a complainant’s bad character must have substantial probative value on a matter of substantial importance in the case. The assessment is fact-sensitive and must be made in the context of all the evidence.

Unsubstantiated allegations will ordinarily fail that threshold. A defendant’s willingness to repeat an allegation, or a report merely recording that allegation, does not ordinarily give it substantial probative value. The court should also consider whether the material would add significantly to the available evidence or distract the jury from the central issue.

The appellant was convicted at the Crown Court at Snaresbrook of assault occasioning actual bodily harm after a confrontation with his neighbour. The prosecution alleged that he used excessive force. The appellant relied on self-defence, saying that the complainant had threatened him with an electric drill.

The jury saw CCTV of the incident and heard evidence of prior ill-feeling between the neighbours. The complainant had died before trial, and his statement was read to the jury. The defence sought leave to adduce alleged previous threats and aggressive conduct by the complainant. The trial judge refused leave under section 100(1)(b) of the Criminal Justice Act 2003. The issue on appeal was whether that ruling was wrong and rendered the conviction unsafe.

1. The appeal against conviction was dismissed. The trial judge made no demonstrable error in refusing leave to adduce the proposed bad-character evidence under section 100(1)(b) of the Criminal Justice Act 2003.

2. The court applied the fact-sensitive approach in R v Braithwaite [2010] 2 Cr App R 18. The relevant question was whether the evidence had substantial probative value on a matter of substantial importance when assessed in the context of the case as a whole. That assessment could include whether it added significantly to other, more probative evidence on the same issue.

3. The alleged earlier incidents were unsubstantiated complaints. The appellant’s ability to give evidence about them did not itself establish substantial probative value. The CAD report concerning one incident merely recorded the appellant’s allegation and was self-reinforcing. Although Braithwaite left open the possibility that live evidence of similar prior attacks could exceptionally qualify, this case did not warrant admission.

4. The jury already knew of the bad relationship and mutual complaints to the local authority. The proposed evidence was marginal to the issue of self-defence, particularly given the clear CCTV and the other evidence. Its exploration risked distracting the jury through satellite issues.

5. In any event, the conviction was safe. The Crown’s case was supported by several sources, and admission of the allegations would not have made a substantial addition to the evidence available to the jury.

• Court of Appeal (Criminal Division) Dismissed the conviction appeal: [2016] EWCA Crim 839.
• Crown Court at Snaresbrook Convicted the appellant on 13 November 2015 of assault occasioning actual bodily harm and imposed a community order.