Regina v Andrew Milne

Evidence relied on to prove motive must have a real connection with that issue and possess probative value. The fact that conduct occurred after the charged offence does not itself make it inadmissible as motive evidence. An unexplained later assault, unconnected with the alleged debt enforcement or criminal relationship, is merely evidence of violence and cannot be admitted for that purpose under the Criminal Justice Act 2003.

A wrongful admission of evidence does not render convictions unsafe where it added nothing material to the prosecution case, caused no significant prejudice, and the remaining evidence was compelling. A special direction is not required merely because a 12-year-old defence witness gives an account capable of ordinary jury evaluation.

Milne and Barnard were convicted at Lewes Crown Court of two murders and an attempted murder arising from a deliberately started house fire. Milne was also convicted of possessing a prohibited weapon. The prosecution case relied principally on CCTV, DNA evidence linking the applicants to items at the scene, vehicle and telephone evidence, and evidence of Barnard's admission.

The trial judge admitted evidence intended to show motive, including evidence that Milne had assaulted Nicholas Mann six months after the fire. Both applicants renewed applications for leave to appeal after a single judge had refused leave. They challenged the admission of the Mann evidence. Milne also challenged the summing-up of a 12-year-old defence witness. The central issue was whether any error in admitting the Mann evidence rendered the convictions unsafe.

1. Renewed applications refused. The convictions were not unsafe. The independent evidence against both applicants was compelling. It included CCTV, DNA evidence linking them to the petrol container and lighter, communications and vehicle evidence, and Barnard's confession to Sherwood. The jury could properly conclude that the applicants started the fire and intended to kill its occupants, whether or not the alleged drug-debt motive was proved.
2. The Court agreed that the admissibility of the motive evidence could properly be considered both under section 98 and, alternatively, under section 101(1) of the Criminal Justice Act 2003. It also held that post-offence conduct is not automatically excluded merely because of timing. R v Sule [2012] EWCA Crim 1130 did not impose such a temporal bar.
3. However, the Mann assault had no evidential relevance to motive. It occurred six months later, and there was no evidence that Mann owed a debt to Barnard or anyone involved in his drugs business. It did not explain the alleged relationship between Barnard and Milne. It showed, at most, violent behaviour by Milne. No admissible general-propensity case had been advanced. The trial judge therefore erred in admitting it.
4. That error did not make the convictions unsafe. The evidence neither strengthened the prosecution case nor significantly prejudiced Milne. The jury had been directed that the assault was not connected to Barnard, so it could not prejudice Barnard.
5. No special direction was required concerning the 12-year-old defence witness. Her account of what she observed was capable of ordinary jury assessment, including its inconsistency with the CCTV evidence. The summing-up was brief but fair.

• Court of Appeal (Criminal Division): renewed applications for leave to appeal against conviction were refused in [2022] EWCA Crim 753.
• Single judge: applications for leave to appeal against conviction were refused.
• Crown Court at Lewes: before Whipple J and a jury, Milne and Barnard were convicted of two murders and attempted murder. Milne was also convicted of possessing a prohibited weapon. Both received life sentences with long minimum terms.