Hay, R. v

Bad-character evidence may be admissible under section 101(1)(d) where it is relevant to an important matter in issue other than propensity. A defendant’s claim that apparently incriminating association with a participant in crime was innocent, or coincidental, can constitute such a matter. The evidence must be used to assess that explanation, rather than as proof that the defendant is guilty because of past misconduct.

A jury direction will be adequate where it identifies that limited relevance, warns against prejudice and over-reliance, and leaves the weight of the evidence to the jury. A less than ideal formulation will not render a conviction unsafe unless it amounts to a material misdirection.

The appellant was convicted by a jury at the Crown Court at Warwick of robbery and sentenced to five years’ imprisonment. The prosecution alleged that he was the masked man guarding the door during a post-office robbery committed with Baines, who had pleaded guilty.

The prosecution relied principally on circumstantial evidence, CCTV and image-analysis evidence, the purchase of gloves shortly before the robbery, and evidence undermining the appellant’s alibi. It was permitted to adduce the appellant’s 2003 robbery conviction under the bad-character provisions of the Criminal Justice Act 2003.

The appeal challenged both the admission of that conviction and the adequacy of the Recorder’s direction about its use. The central issue was whether the conviction could properly rebut the appellant’s claimed innocent association with Baines and whether any deficiency in the summing-up made the conviction unsafe.

1. Appeal dismissed. The previous robbery conviction was properly admitted under section 101(1)(d) of the Criminal Justice Act 2003, and the conviction for the current robbery was safe.
2. The statutory expression matters in issue is not confined to propensity. Following the reasoning in R v Jordan [2009] EWCA Crim 953, a material issue may arise where a defendant explains evidence apparently connecting him with a crime as innocent association or coincidence. The earlier conviction was relevant to testing the appellant’s account of his presence with Baines shortly before Baines bought equipment used in the robbery.
3. The court applied the principle stated in R v Cambridge [2011] EWCA Crim 2009: bad-character evidence may be admitted for the Crown to rebut a defence of mistake, accident or innocent association. In this case, issues of propensity, coincidence and innocent association were closely connected. The jury directions required for those issues would not materially differ from directions if the evidence had been admitted as propensity evidence.
4. The Recorder’s description of the previous conviction as part of the background was potentially confusing, and the direction could have more clearly identified the competing arguments. Read as a whole, however, the summing-up explained why the evidence had been admitted, warned against prejudice and over-reliance, directed the jury to consider it only when assessing the appellant’s explanation, and left its weight to them. There was no material misdirection.
5. The prosecution case was strong circumstantial evidence. The appellant’s equivocal interview and later omissions further supported the conclusion that the conviction was not unsafe.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction.
• Crown Court at Warwick: on 17 February 2017 the appellant was convicted by a jury of robbery and, on 10 May 2017, was sentenced to five years’ imprisonment.