Johnson, R v

Where a defendant attacks the deceased’s character, evidence of the defendant’s bad character may be admitted through section 101(1)(g) of the Criminal Justice Act 2003. If admitted, it may also be relevant to propensity, provided its probative value is real and the jury receive tailored directions preventing unfair or impermissible reasoning.

Previous unarmed violence may support a propensity to respond with unlawful violence when angered or provoked. It does not support an inference of a propensity to use a knife or commit serious armed violence. Bad-character evidence cannot bolster a weak prosecution case or alone justify conviction.

For sentencing under Schedule 21, a judge may find beyond reasonable doubt that an offender brought a knife to the scene by drawing a cumulative inference from the evidence.

The appellant was convicted of murder at Leicester Crown Court after a fatal stabbing during a fight at the deceased’s home. He relied on accident, self-defence and lack of intent. His case alleged that the deceased was the aggressor and had used a knife.

The prosecution was permitted to adduce the appellant’s previous convictions for violence after the defence attacked the deceased’s character. The jury were also told of the deceased’s previous violent convictions. The appellant appealed against conviction, contending that his convictions should have been excluded or not used as propensity evidence.

He also appealed against his minimum term of 21 years. He contended that the sentencing judge could not, to the criminal standard, find that he had brought the murder weapon to the scene and therefore should not have used the 25-year starting point under Schedule 21 of the Criminal Justice Act 2003.

1. Both appeals were dismissed. The conviction was safe and the minimum term was lawful.

2. The section 101(1)(g) gateway of the Criminal Justice Act 2003 was conceded to apply. Once the defence had attacked the deceased’s character, it would have been wrong for the jury to remain ignorant of the appellant’s own relevant bad character. There was no unfairness, particularly as the judge also admitted the deceased’s previous convictions for violence.

3. The appellant’s prior convictions were capable of supporting a limited propensity inference. They could show a tendency to lose his temper and use unlawful violence when provoked or under pressure. They did not show a propensity to carry a knife or to commit serious armed violence. The trial judge’s carefully tailored directions properly confined the jury’s use of the evidence, stressed its secondary role, and prevented conviction based on bad character alone. The evidence could therefore be used both through section 101(1)(g) and, potentially, as relevant propensity evidence.

4. For sentence, the trial judge had expressly applied the criminal standard of proof. The cumulative evidence entitled him to infer that the appellant had brought the knife: damage to the appellant’s pocket was consistent with a blade; no knife had been seen before the men entered the garden; the deceased initially used only punches; the knife was not recovered; and the jury had rejected the account that the deceased first attacked with a knife. That finding was properly open to the judge.

5. Accordingly, the judge was required to apply the 25-year starting point under Schedule 21 of the Criminal Justice Act 2003. There was no basis to disturb the resulting minimum term of 21 years, less time spent on remand.

• Court of Appeal (Criminal Division). The court dismissed the appeals against conviction and sentence in [2019] EWCA Crim 1025.
• Crown Court at Leicester. The appellant was convicted of murder by a jury and sentenced to life imprisonment with a minimum term of 21 years, less time spent on remand.