Gregson, R. v

On an application by one defendant to adduce a co-defendant’s bad character, the statutory test requires separate and rigorous assessment of whether the evidence has substantial probative value and whether the issue to which it relates is of substantial importance in the trial as a whole. The judge may take account of evidence already before the jury when assessing the additional value of further detail.

Directions under section 5 of the Domestic Violence, Crime and Victims Act 2004 are fact-specific. A direction addressing circumstances said to restrict protective action is required only where the evidence raises that issue. Evidence admitted only to show what a defendant was told is not evidence of the truth of the underlying matter against a co-defendant.

The appellant was convicted at the Crown Court at Sheffield of causing or allowing the death of her daughter, Mia, contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004. Her partner, Jonathan Garner, was convicted of Mia’s murder.

The appellant appealed against conviction. Her principal complaint concerned the refusal to admit details of Garner’s previous violence towards former partners, beyond his admission that he had such a history. She also challenged a direction concerning information given to her by a social worker and the directions on the subjective element of the section 5 offence.

1. Appeal dismissed. None of the grounds rendered the conviction unsafe.
2. The court applied the test stated in R v Phillips [2012] 1 Cr App R(S) 25. Under sections 101(1)(e) and 112 of the Criminal Justice Act 2003, the judge had to address separately whether the proposed bad-character evidence had substantial probative value and whether the matter to which it related was of substantial importance in the trial as a whole. Once those criteria are met there is no discretionary exclusion power, but the judge may control the scope and presentation of admissible evidence and direct the jury on its proper use.
3. On the facts, the further details of Garner’s violence or harassment of former partners had no substantial probative value on an issue of substantial importance. The jury already knew that he admitted a history of domestic violence. The real factual issue was whether the appellant was asleep or awake when Garner killed Mia. Her asserted fear of Garner could at most explain lies in interview and did not meet the statutory test. Questions of foresight or fault in allowing Garner to live at the home were academic if the jury rejected her account that she was asleep.
4. The trial judge’s direction concerning the social worker’s evidence was correct. It did not require the jury to disregard the information for every purpose. It correctly stated that, in the form adduced, it was not evidence against Garner, while leaving the jury to consider his own admission of domestic violence if relevant to the case against the appellant.
5. Applying R v Khan [2009] 1 WLR 2036, the court held that the protective steps reasonably expected under section 5(1)(d)(ii) depend on the facts. A fuller direction about circumstances restricting a defendant’s ability to act was unnecessary because the evidence did not raise such a case and the appellant had not given evidence. The brief direction was therefore adequate.

• Court of Appeal (Criminal Division): in [2020] EWCA Crim 1829, dismissed the appellant’s appeal against conviction.
• Crown Court at Sheffield: in 2019, convicted the appellant of causing or allowing the death of a child. Her co-defendant was convicted of murder.