Gray, R. v

A single earlier violent offence may be capable of showing a relevant propensity under section 101(1)(d) of the Criminal Justice Act 2003, even where it was committed more than seven years earlier when the defendant was a young adult. The assessment is fact-sensitive. The circumstances of an unprovoked knife attack may support a propensity to commit serious knife violence and may make participation in a later killing more likely.

The prejudice inherent in such evidence does not itself make its admission unfair. The trial judge must consider elapsed time, age, the nature of the earlier offence, its probative value and the overall fairness of the trial.

The applicant was convicted of murder at Sheffield Crown Court in April 2019. The prosecution alleged that he and others had planned an ambush in which the victim was fatally stabbed. The applicant accepted presence but denied participating in violence or intending harm.

Before trial, the judge admitted evidence of the applicant’s 2011 conviction for unlawful wounding. The prosecution relied on section 101(1)(d) of the Criminal Justice Act 2003, contending that the earlier unprovoked knife attack showed a propensity to commit serious violence with a knife.

Following a single judge’s refusal, the applicant renewed his application for an extension of time to seek leave to appeal. The issue was whether admission of the earlier conviction rendered the murder conviction unsafe.

1. The renewed application was refused. The proposed ground disclosed no arguable basis for saying that the murder conviction was unsafe. Accordingly, there was no purpose in extending time for an application for leave to appeal.

2. The court accepted that particular care was required before admitting one violent offence committed over seven years earlier as propensity evidence. The assessment was necessarily fact-sensitive. The applicant had been a young adult, rather than a child, when he committed the earlier offence.

3. The circumstances of the 2011 offence were capable of showing a propensity to commit serious violence using a knife. It involved an unprovoked attack on a man scarcely known to the applicant and a stab wound to the face. In a trial where each accused’s participation in the killing was the principal issue, that propensity could properly make the applicant’s participation more likely.

4. The trial judge had directed himself correctly under section 101(1)(d) and the fairness provisions in section 101(3) and (4) of the Criminal Justice Act 2003. He considered the elapsed time, the applicant’s age, and the risk of unfairness. Although the evidence was prejudicial, he was entitled to find that it was not unfairly prejudicial. No criticism could be made of the subsequent jury directions.

• Court of Appeal (Criminal Division): renewed application, following the single judge’s refusal, for an extension of time to apply for leave to appeal against conviction. The application was refused.

• Crown Court at Sheffield: in April 2019, the applicant was convicted of murder by a jury before the Honorary Recorder of Sheffield.