Coles, R v

Where identification evidence, clothing similarities, proximity and timing provide a proper evidential basis on which a reasonable jury could identify the defendant, previous convictions for similar offending may properly be admitted to prove propensity. Propensity evidence may support identification evidence in that way, but it does not provide an independent route for treating bad character as direct support for identification.

A jury may compare clothing seen on CCTV with clothing produced in evidence by using its own observation and common sense. Expert evidence is not required merely to establish an apparent colour or visual match.

The applicant was convicted at Lincoln Crown Court of burglary and sentenced to five years’ imprisonment. The prosecution relied principally on CCTV footage, a police community support officer’s identification of the applicant, similarities between clothing shown on the footage and clothing seized from him, and his proximity to the burgled address.

The trial judge admitted the applicant’s previous convictions for dwelling burglary and attempted dwelling burglary. The application for leave to appeal challenged that ruling on the basis that the prosecution case was too weak to justify admitting the bad-character evidence. It also raised the absence of prosecution expert evidence matching the clothing in the footage to the seized jacket.

1. The application for leave to appeal against conviction was dismissed. There was a proper evidential basis on which the trial judge could admit the applicant’s previous convictions. A reasonable jury, properly directed, could have concluded that the person shown on the CCTV footage was the applicant.

2. The identification by the police community support officer was supported by the timing and location of the footage, the applicant’s proximity to the burgled premises, and the similarities in the clothing. The officer had previously encountered the applicant and identified him from the first recording before seeing the second recording.

3. The jury could compare the seized jacket with the CCTV images without expert evidence. This was a matter of ordinary observation and common sense. The defence expert’s evidence about compression of digital footage and limited similarities or differences did not make the conviction unsafe.

4. Previous convictions could prove only propensity, here a propensity to burgle. That propensity evidence could be linked to the identification evidence. It did not provide a separate and independent basis for treating bad character as support for identification.

5. The jury had been properly directed on the dangers of identification evidence and on the permitted and prohibited use of the previous convictions. The conviction was therefore safe.

• Court of Appeal (Criminal Division): In Coles, R v [2018] EWCA Crim 407, the court dismissed the application for leave to appeal against conviction.
• Lincoln Crown Court: On 28 November 2016, the applicant was convicted by a jury of burglary and sentenced to five years’ imprisonment.