R v Anthony Terence O'Donnell

Evidence of a non-defendant’s bad character is inadmissible under section 100 of the Criminal Justice Act 2003 unless it is important explanatory evidence or has substantial probative value on a matter of substantial importance. Evidence of previous convictions and historic disputes will not meet those conditions where the jury can assess the material events from direct evidence and the defendant did not know of the convictions.

A defendant who is not of full good character may nevertheless adduce relevant evidence of a specific non-violent disposition. Its erroneous exclusion will not render a conviction unsafe if substantially equivalent evidence was before the jury and the prosecution evidence was very strong.

A sentence within the applicable guideline range is not manifestly excessive merely because another judge might have afforded greater weight to mitigation.

The appellant was convicted at the Crown Court at Warwick, before Judge Potter and a jury, of violent disorder arising from a large-scale attack at an amateur youth boxing championship. He was sentenced to two years and eight months’ imprisonment. The Crown Court proceedings were identified as [T20220187].

His case at trial was that he had attended to remove a young relative safely and had used only reasonable force in defence of himself and his family. He challenged the exclusion of evidence concerning the alleged bad character of members of the opposing family, the judge’s intervention during his evidence, and the exclusion of character-reference evidence that he was non-violent. He also challenged the categorisation and length of his sentence.

1. Conviction appeal. The renewed applications for leave to appeal on grounds 1 and 3 were refused. The appeal against conviction was dismissed.
2. Non-defendant bad character. The trial judge correctly excluded evidence of historic incidents and convictions concerning members of the Doherty family. The jury had CCTV evidence showing the conduct of those involved in the incident. There was no evidence that the appellant knew of any specific convictions. The material was neither important explanatory evidence nor of substantial probative value on the real issue: whether the appellant acted unlawfully rather than in reasonable self-defence.
3. Judicial intervention. The judge’s question about whether the appellant had shouted “Come on” was a neutral request for clarification of a matter the jury were likely to consider. It caused no unfair prejudice, particularly because the appellant accepted that he had shouted those words and gave his explanation for doing so.
4. Character evidence and safety. The trial judge erred in excluding the proposed evidence from two witnesses that the appellant was not a violent man. The appellant did not assert full good character and accepted his dishonesty conviction. Nonetheless, he was entitled to rely on relevant evidence that his non-aggressive disposition made unlawful violence less likely and lawful self-defence more likely. The error did not make the conviction unsafe. The proposed evidence added little to the appellant’s unchallenged evidence and the fair direction already given. The CCTV and witness evidence against him was extremely strong.
5. Sentence appeal. Leave to appeal against sentence was granted, but the appeal was dismissed. The offence properly fell within harm category 2 and culpability category B. The large group’s targeting of a much smaller group came close to a category A feature. The appellant’s repeated return to the venue and offending while on licence justified a substantial upward adjustment. Although the 32-month sentence was stiff and another judge might have given more weight to mitigation, it was not manifestly excessive. Immediate custody would in any event have been unavoidable.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 1115, the court refused renewed leave on conviction grounds 1 and 3, dismissed the conviction appeal, granted leave to appeal against sentence, and dismissed the sentence appeal.
• Crown Court at Warwick: Following a jury trial, the appellant was convicted of violent disorder in September 2023 and was sentenced by Judge Potter on 15 July 2024 to two years and eight months’ imprisonment: [T20220187].