Mukeh Joseph Kawa & Anor v R

Under the Criminal Justice Act 2003, section 101(1)(d) admits a defendant’s bad-character evidence when it is relevant to an important matter in issue, subject to exclusion on fairness grounds under section 101(3). The relevant issue need not be a statutory propensity to commit offences. Past conduct may make it more likely that the defendant possessed a weapon, or knew a co-defendant possessed one, at the time of the alleged offence. Where the prosecution does not rely on propensity, the jury need not first be sure that a propensity is established. Whether an express direction against propensity reasoning is needed depends on the circumstances. An isolated reference to habitual conduct did not make otherwise correct directions unsafe.

Following convictions for murder at the Central Criminal Court, Kawa and Davies sought substantial extensions of time to apply for leave to appeal. Their proposed grounds challenged the admission and treatment of evidence concerning earlier knife possession and a joint purchase of knife blocks. The trial judge admitted the evidence under section 101(1)(d) of the Criminal Justice Act 2003, and also treated part of it as admissible under section 101(1)(g), to assist on whether either applicant carried a knife or knew that the other did. He directed the jury on its permitted use. The central issue was whether the prosecution was in substance relying on a propensity to carry knives, requiring a propensity direction, and whether the directions given were sufficient.

The applications for extensions of time and for leave to appeal against conviction were refused.

1. Section 101(1)(d) of the Criminal Justice Act 2003 makes relevance to an important matter in issue the sole criterion for admissibility through that gateway, subject to the fairness exclusion in section 101(3). Section 103 identifies propensity to commit offences of the kind charged as one possible matter in issue, but does not confine section 101(1)(d) to propensity evidence. The court applied the approach in R v Bowman and Lennon [2014] EWCA Crim 716.
2. There is a distinction between evidence of propensity and evidence of past behaviour which makes it more likely that a defendant acted in a particular way on the occasion charged, although the distinction may be fine. The earlier knife-possession convictions, Kawa’s possession of knives in Davies’s home, and the joint purchase of knife blocks were capable of making it more likely that one or both applicants brought a knife to the scene, or that each knew the other was carrying one. The evidence was therefore relevant to important matters in issue.
3. A direction requiring the jury to be sure of a relevant propensity would have been necessary if such a propensity had been alleged. It was not necessary here because the prosecution had expressly relied on the evidence for a different purpose. The court distinguished R v Mitchell [2016] UKSC 55 on that basis. The need for an express direction that the evidence could not establish propensity depended on the circumstances; in this case such a direction would have risked confusing the jury. The analogous reasoning in R v Okokono and Wilson-Moonie [2014] EWCA Crim 2521 supported that conclusion.
4. The trial judge’s isolated reference to the applicants’ habit of going out armed was an incorrect description of the prosecution case. It did not alter the case advanced, undermine the otherwise correct directions, or render the convictions unsafe. There was no basis for excluding the evidence on fairness grounds.
5. As the proposed grounds were not arguable, no useful purpose would have been served by extending time. The applications for extensions of time and for leave to appeal accordingly failed.

• Court of Appeal (Criminal Division) — In [2023] EWCA Crim 845, the court refused the applications for extensions of time and for leave to appeal against conviction.
• Central Criminal Court — In August 2017, following a trial before HH Judge Leonard KC and a jury, the applicants were convicted of murder and later sentenced to life imprisonment. Neither applicant commenced an appeal at that time.