Howe, R v

A qualified identification remains admissible and probative evidence, but it cannot alone found a conviction. It may support, or be consistent with, other evidence identifying the defendant, and the jury must be directed carefully about its limited weight.

Previous convictions for similar offending may be admitted to establish propensity under Criminal Justice Act 2003 where they are relevant to an important issue. The court must assess whether they make the charged offending more likely and whether admission would be unjust. Such evidence should not supply the principal case against a defendant, but it may properly reinforce a substantial circumstantial case.

The appellant was convicted at Newcastle upon Tyne Crown Court of three distraction burglaries of elderly householders and was sentenced to five years’ imprisonment on each count, concurrently.

The prosecution relied on the similarities between the incidents, a partial video identification by one complainant, CCTV showing the appellant near the locations at the relevant times, and previous convictions for distraction burglary. The appellant accepted that he appeared on the CCTV but denied entering any premises.

On appeal, he challenged the refusal to exclude the qualified identification and the admission of his bad character evidence. The central questions were whether the identification could properly remain before the jury and whether the convictions were unfairly admitted to bolster an otherwise weak prosecution case.

1. Appeal dismissed. The convictions were safe. The evidence was properly admitted and the Recorder’s summing-up was fair.

2. A qualified identification is still an identification. Following George [2002] EWCA Crim 1923, it cannot by itself found a conviction. It may nevertheless be relevant and probative where it supports, or is consistent with, other evidence indicating that the defendant committed the offence. Here, the partial identification was supported by strong circumstantial evidence, including CCTV evidence of the appellant’s presence near each burglary at the relevant times and evidence about the clothing worn. The Recorder was entitled to leave it to the jury with careful directions about its weaknesses.

3. The previous convictions were admissible under Criminal Justice Act 2003. Applying the approach in Hanson [2005] 1 WLR 3169, the Recorder was entitled to find that the convictions established a propensity for closely similar distraction burglaries, made the charged offending more likely, and were not unjust to admit. The prior offences disclosed a strikingly similar modus operandi. They were not being used as the principal evidence against the appellant, because the prosecution case already contained strong cumulative circumstantial evidence.

4. Where the correct approach has been adopted, an appellate court will interfere with a finding that prior events establish propensity only if it is plainly wrong, or with the admission decision only if discretion was exercised unreasonably. Neither threshold was met. The prosecution evidence, even without the previous convictions, clearly established a case to answer.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed: [2017] EWCA Crim 2400.
• Crown Court at Newcastle upon Tyne: The appellant was convicted by a unanimous jury of three burglaries on 14 November 2016 and sentenced on 16 January 2017.