R v Owen McGowan & Ors.

Evidence falls outside Criminal Justice Act 2003, section 98 only where it has a sufficient nexus with the facts of the offence charged. Evidence which instead demonstrates a relevant propensity may be admissible under section 101(1)(d), provided its probative value justifies its prejudicial effect.

Under the sentencing guideline for wounding with intent, a life-threatening injury is not every injury which might cause death if untreated. Category 1 harm is reserved for exceptionally serious section 18 cases. A grave injury which is not particularly grave should ordinarily be placed in category 2, although seriousness within that category may justify an upward adjustment.

Four appellants were convicted at the Crown Court at Kingston-upon-Thames of jointly wounding Charlie Hirshman with intent, contrary to section 18 of the Offences against the Person Act 1861. They were acquitted of attempted murder.

McGowan challenged the admission of knife-related evidence and the adequacy of the jury directions. Dawuda-Wodu challenged the use of his conviction for an earlier murder as bad-character evidence. The appeals also challenged the categorisation of harm and aspects of the sentences for the wounding, together with Dawuda-Wodu’s overall minimum term for murder and related offences.

The central issues were whether the convictions were safe and whether the sentencing judges had wrongly treated the victim’s injuries as category 1 harm.

1. Conviction appeals. The court dismissed McGowan’s conviction appeal and refused Dawuda-Wodu leave to appeal against conviction. It held that the knives and internet searches relied on against McGowan lacked the necessary nexus with the charged offence to fall within section 98 of the Criminal Justice Act 2003. The evidence was nevertheless properly admissible under section 101(1)(d). It was capable of showing an interest in, and possession of, large knives, thereby supporting the complainant’s account and rebutting coincidence. Its prejudice was not unfair and was outweighed by its probative value. The prosecution’s failure to make an alternative bad-character application was regrettable but did not render the conviction unsafe.
2. There was no need for a direction of the kind considered in Turnbull. The complainant’s evidence was that the group who attacked him was the group he had just encountered inside the house. Although a fuller consolidation of the reliability warnings would have been preferable, the directions as a whole fairly identified the relevant challenges and did not undermine the safety of the conviction.
3. Dawuda-Wodu’s earlier murder conviction was properly admitted as propensity evidence. Both incidents involved a group knife attack on a lone victim. The alleged circularity did not assist because each jury had been properly directed and there was no basis to suppose that either jury had disregarded its directions.
4. Sentencing. Applying and endorsing the guidance in Attorney General's Reference (R v O'Brien), [2022] 1 Cr App R(S) 53, the court held that category 1 harm is reserved for exceptionally serious section 18 offences. The victim’s injuries were grave but not particularly grave by that standard. Category 2, with a starting point of seven years and scope to move to nine years, was appropriate. The category 1 starting point had made the sentences wrong in principle or manifestly excessive.
5. The findings of dangerousness and the need for extended sentences for McGowan, Baker and Backhouse were upheld. Greater weight should, however, have been given to Dawuda-Wodu’s youth, including by an initial reduction of the murder starting point and greater credit for his guilty plea. The court reduced McGowan’s extended sentence to five years and six months, Baker’s and Backhouse’s to seven years, and Dawuda-Wodu’s life minimum term to 29 years. His concurrent sentences for perverting the course of justice and wounding were reduced to five and seven years respectively.

• Court of Appeal (Criminal Division) Dismissed the conviction appeal and refused renewed leave to appeal against conviction. It allowed each sentence appeal to a limited extent and substituted reduced sentences.
• Crown Court at Kingston-upon-Thames The four appellants were convicted on 29 July 2021 of wounding with intent contrary to section 18 of the Offences against the Person Act 1861. McGowan, Baker and Backhouse received extended sentences in December 2021.
• Central Criminal Court Dawuda-Wodu had separately been convicted of murder and sentenced for that offence, perverting the course of justice, and the wounding offence. The Court of Appeal reduced his minimum term and concurrent sentences.