Leathem & Anor v R

Evidence of bad character may be admitted as important explanatory evidence under section 101(1)(c) of the Criminal Justice Act 2003 where, without it, the jury would find it impossible or difficult properly to understand other evidence and its value in understanding the case as a whole is substantial. It is insufficient that evidence merely fills out the picture. However, contemporaneous criminal activity may provide necessary explanatory background for otherwise unexplained incriminating material.

The fact that such evidence may also tend to show propensity does not prevent its admission under that gateway. An allegation that defendants conspired with others unknown does not require proof that other persons were involved where the evidence and directions properly confine the issue to whether the named defendants made the alleged agreement.

The appellants were convicted at Stafford Crown Court of conspiracy to burgle the home of an elderly firearms licence-holder and steal his guns. A floorplan of the house, drawn by Mallett, and a note recording the location and security of the guns were found concealed at Leathem’s home. The prosecution alleged that the documents evidenced an agreement between the appellants.

At the retrial, HHJ Eades admitted evidence of Leathem’s contemporaneous convictions for linked burglaries and robberies under section 101(1)(c) of the Criminal Justice Act 2003. The appellants challenged that ruling. Mallett also challenged the judge’s direction that the prosecution need not prove the involvement of the “others unknown” named in the indictment.

1. Appeals dismissed. The judge correctly admitted Leathem’s bad-character evidence as important explanatory evidence under section 101(1)(c) of the Criminal Justice Act 2003.

2. Section 102 required the court to ask whether the jury would find other evidence impossible or difficult properly to understand without the evidence, and whether its value for understanding the case as a whole was substantial. Applying the guidance in R v Lee [2012] EWCA 316, evidence which merely fills out a picture will not meet that test. Here, however, the evidence was necessary explanatory background. Without it, the jury would have struggled to understand how a detailed burglary plan and gun-location note came into existence and why the plan was concealed in Leathem’s home.

3. The evidence showed Leathem’s active involvement, at the relevant time, in a gang committing linked burglaries and robberies. It supplied a rational context for the documents and supported the inference that acquiring firearms could further the gang’s criminal enterprise. Its substantial probative value was not displaced by prejudice. The fact that it also bore on propensity did not make gateway (c) an illegitimate route to propensity evidence.

4. The court further held that the convictions were safe in any event. The plan, notebook and evidence of contact and collaboration between the appellants formed an overwhelming circumstantial case capable of satisfying a reasonable jury.

5. The judge’s direction on the amended indictment was also correct. The words “and with others unknown” indicated that others might have been involved; they did not oblige the prosecution to prove their involvement. The jury was properly directed to decide whether Leathem and Mallett had agreed together to burgle the property. Mallett’s renewed application for leave to appeal on that ground was refused.

• Court of Appeal (Criminal Division): Conviction appeals dismissed in [2017] EWCA Crim 42. Mallett’s renewed application for leave to appeal on his additional ground was refused.

• Crown Court at Stafford: Following a retrial before HHJ Eades, both appellants were convicted on 3 March 2016 of conspiracy to burgle. The judge admitted Leathem’s bad-character evidence under section 101(1)(c) of the Criminal Justice Act 2003.

• Crown Court at Stafford: At the earlier trial before HHJ Gosling in November 2015, the jury failed to reach verdicts on the count later retried.