R v Kevin Horswill

Non-defendant bad character evidence is admissible only through a statutory gateway. Important explanatory evidence requires both that, without it, the jury would find it difficult properly to understand other evidence and that its value for understanding the case as a whole is substantial. Under the substantial probative value gateway, the court must identify the issue, assess its importance in the context of the case, and evaluate the evidence alongside the other evidence available. Untested hearsay allegations will rarely satisfy that threshold. A defendant may give evidence of a belief about another person’s character without necessarily adducing bad character evidence, and may sometimes provide a factual foundation for that belief. The judge must prevent state-of-mind evidence from circumventing an exclusion ruling and may take proportionate steps to do so.

The appellant was convicted of murder at the Crown Court at Chelmsford on 25 January 2025. His case was that he had acted in self-defence after the deceased attacked him. The defence sought to adduce evidence of the deceased’s alleged violence, drug dealing and reputation for continuing confrontations. The trial judge excluded the disputed evidence under the Criminal Justice Act 2003, while allowing two incidents by agreement, and later limited the appellant’s evidence about the deceased’s reputation and its effect on his state of mind. The jury convicted by a majority of 11 to 1. The appeal concerned whether the rulings on non-defendant bad character and state-of-mind evidence were legally wrong, and whether any error rendered the conviction unsafe.

The appeal was dismissed.

1. Under section 100(1)(a) of the Criminal Justice Act 2003, important explanatory evidence must satisfy both statutory limbs. Without it, the court or jury must find it impossible or difficult properly to understand other evidence, and its value for understanding the case as a whole must be substantial. The disputed material did not satisfy either limb.
2. The substantial probative value gateway in section 100(1)(b) required the court first to identify the issue to which the evidence was directed, then to determine whether that issue was of substantial importance in the context of the case as a whole, and finally to assess whether the evidence had substantial probative value. The assessment had to take account of the evidence already available. The court applied the guidance in R v Braithwaite [2010] EWCA Crim 1082, including its caution that untested hearsay allegations would rarely have substantial probative value.
3. The judge was entitled to exclude the disputed propensity evidence. The material was affected by age, different subject matter, lack of detail, hearsay, absence of contemporaneous complaints and evidence of mutual aggravation. The proposed inference from alleged drug dealing to a propensity for confrontation or violence had no substantial probative value.
4. Evidence of a defendant’s belief about another person’s character does not necessarily constitute that person’s bad character. Where relevant, the defendant may also seek to adduce evidence providing a factual foundation for the belief. That distinction, recognised in R v Hussain [2008] EWCA Crim 1117, is not always straightforward. The judge must remain alert to an attempt to use state-of-mind evidence to circumvent an earlier exclusion ruling. On the facts, the judge took proportionate steps by permitting evidence of the deceased’s reputation for continuing confrontations and its particular significance to the appellant’s concern for his partner and daughter.
5. The proposed additional challenge to the summing-up was not realistically arguable. No evidence showed that the appellant knew of the admitted incident or relied on it as affecting his state of mind, and no objection had been made at trial.
6. The appellate court would in any event have dismissed the appeal under section 2 of the Criminal Appeal Act 1968. The forensic evidence, CCTV evidence, the appellant’s threats, the parties’ relative size, the deceased’s defensive injuries and the appellant’s flight supported the safety of the conviction. There was no criticism of the self-defence direction.

1. Court of Appeal (Criminal Division): The appeal against conviction was dismissed and the conviction upheld. [2026] EWCA Crim 181
2. Crown Court at Chelmsford: The appellant was convicted of murder on 25 January 2025 before HHJ Loram KC.