DM, R v

LORD JUSTICE MOSES: This is an interlocutory application pursuant to section 35(1) of the Criminal Procedure and Investigations Act 1996. The applicant, anonymised in the name of DM, is due to stand trial at a Crown Court on three counts alleging robbery, possession of a firearm at the time of committing an offence and possessing a firearm when prohibited from doing so.

On 18th February 2008 in the course of a preparatory hearing pursuant to section 29 of the Criminal Procedure and Investigations Act 1996, the judge ruled as a point of law that facts relating to the alleged participation of the applicant in a robbery in Banff, Scotland, on 27th November 2006 should be admitted pursuant to Part II, Chapter 1, of the Criminal Justice Act 2003 to prove his guilt of the robbery which he was alleged to have committed three days earlier in Rothwell, Leeds.

The complication in this case is that this applicant had already been tried for the robbery in Banff and the jury in Scotland had returned a verdict of not proven.

The applicant had been driving to Scotland with his partner and two children in a Vauxhall Astra, registered number *******. The route north up the M1 motorway goes near a corner shop in Rothwell. The robbery in Rothwell was committed by a man with a sawn-off shotgun wearing a balaclava. Witnesses said they saw in he vicinity of the robbery a woman and two children in a red Vauxhall Astra and gave statements as to a registered number close to, but not identical with, the number of the applicant's vehicle.

The evidence in relation to his participation is hotly disputed by this applicant, particularly as to the noise the vehicle made when driving away and as to evidence given by the victims of the robbery which suggested that the robber had shortly before been in the shop, indicating that it was not this applicant.

The prosecution sought to adduce evidence of a robbery in Banff some three days later. The robbery took place at ********** and was committed by a man wearing a balaclava and carrying a sawn-off shotgun. It is beyond dispute, and indeed will not be disputed should the evidence be admitted, that the applicant was in Banff,just over 400 miles away from Leeds,at the time of the robbery and left shortly after on his way back south. But, as we have said, the jury returned a verdict of not proven. It is important to record that in Banff there was no evidence of a Vauxhall Astra, let alone of a registered number similar to that of the vehicle driven by the applicant. There was positive evidence that a different car was driven away shortly after the robbery; a Ford Mondeo with a very large silver exhaust. There was also other eyewitness evidence giving descriptions of the robber and of his accent, which differed from those of the applicant. But it has to be observed that the applicant had the misfortune to be in that area at the time of an identical type of robbery, although at a different premises. Moreover, the money was taken from what was known as "the pool of betting money" of which only a regular of the public house would be. The applicant was familiar with the public house.

The judge gave two rulings on separate occasions. We must remark that she approached this difficult issue with a care, for which she should be commended.

The prosecution had sought to adduce the evidence pursuant to Part II of the 2003 Act by notice on two separate grounds. First, that the evidence of the Banff robbery established a propensity to commit robbery and was therefore admissible to prove that he had committed the robbery in Leeds three days earlier. Secondly, as a distinct ground, that looked at as a whole the evidence of both the robberies added to the strength of the evidence against him in relation to the one offence charged in England, namely the Leeds robbery.

The judge in her first ruling declined to admit the evidence in relation to the Banff offence on the basis of propensity. Whilst she concluded that it was capable of amounting to evidence of propensity, she took the view that she should not permit the evidence to be admitted on that basis because it would be unfair to do so. However, she did admit it on the basis that, looked at as a whole, the evidence relating to the Leeds and the Banff robberies strengthened the evidence against him in relation to the Leeds robbery. A further submission was made in the light of R v Chopra [2007] 1 Cr.App.R 16 at page 225, but the judge came to the same conclusion.

We start by considering whether there was any permissible basis upon which the evidence in relation to Banff could be admitted to prove the sole offence which the applicant faced, the Leeds robbery. The starting point must be to acknowledge that the evidence of the offence in relation to Banff was evidence of “bad character” within the definition set out in section 98. It was evidence of misconduct, that is it was not evidence which “had to do with” the alleged facts of the Leeds offence - see section 98(a). Thus, by virtue of section 99 the common law rules governing the admissibility of the Banff evidence were abolished.

The evidence of the Banff robbery was relevant to an important matter in issue between the defendant and the prosecution – (see section 101(1)(d)). This evidence was relevant because if the prosecution could establish that he was guilty of the robbery in Banff, that would make it more likely that he was also guilty of the offence in Leeds. He was present in both places at the relevant time and the two offences had similar features, namely that the robber was wielding a sawn-off shotgun and wearing a balaclava.

We re-iterate that the judge ruled that the evidence in relation to the Banff robbery could be adduced not in order to establish his propensity to commit the offence in Leeds but in order to strengthen other evidence that he had committed the robbery in Leeds. It was sought to adduce the evidence as to Banff to make good the suggestion that it was unlikely that a different person had committed the robbery in Leeds.

We emphasise that point because from time to time in the submissions both before the judge and before us we detect an error which is not uncommon, namely a confusion between those cases in which it is sought to adduce evidence of the commission of other offences because it shows a propensity and those in which it is sought to adduce such evidence because it strengthens other evidence tending to establish guilt. In both type of case such evidence is described as “bad character” evidence, in both type of case the evidence if of “misconduct” within the meaning of s.98(a).

Asking a jury to look at evidence relating to a number of allegations as a whole in order to cast light on the evidence relating to an individual offence is not asking a jury to consider a propensity to commit an offence; on the contrary, it is merely asking the jury to recognise that the evidence in relation to a particular offence on an indictment may appear stronger and more compelling when all the evidence, including evidence relating to other offences is looked at as a whole. In other words, the evidence is adduced not as evidence of a propensity but rather to explain and augment other evidence of guilt. Such evidence may loosely be described as “similar fact” evidence, although attaching labels in this area of the law, as in so many others, aggravates the confusion.

The contrast between evidence as to propensity and evidence to establish the unlikelihood of coincidence, may be demonstrated by reference to three cases. The first, the well-known case of R v Hanson [2005] 2 Cr.App.R 21 at page 299 was a case which concerned propensity in the proper sense, in other words a case where the prosecution sought to show that by reason of the guilt of the defendant in relation to previous offences he was more likely to be guilty of the offence under consideration. That is explained by the Vice President, Rose LJ, particularly at paragraph 9 where he points out that a single previous conviction will often not show a propensity.

That type of case is to be distinguished from a case such as Wallace [2007] 2 Cr.App.R 30 page 397 in which the prosecution sought to rely on all the evidence which, taken together, strengthened the case in relation to each individual charge. In Wallace there were four robberies charged, with certain features in common, such as the use of an iron bar. There was fingerprint and DNA evidence against the appellant in relation to some of those robberies ; the evidence to show the appellant’s involvement in them all was stronger if the evidence was not looked at in isolation in relation to each charge, but was looked at as a whole –( see paragraphs 27 and 39). Scott Baker LJ said:

Scott Baker LJ pointed out that that amounted to evidence of bad character within section 98 but was not evidence of a disposition or propensity to commit offences. All the evidence looked at as a whole pointed to the defendant’s guilt in relation to all the offences.

We venture to suggest, as Scott Baker LJ pointed out, that that situation must be carefully distinguished from a case where the prosecution is intending to adduce evidence of other misconduct in order to show a propensity. That is particularly important because, as Scott Baker LJ said ( at paragraph 44), the safeguards which a defendant must be afforded by way of directions in relation to propensity make no sense in a case in which the jury is asked look at the evidence as a whole in considering the strength of the evidence in relation to each particular offence.

Another example, we suggest, of a case in which evidence relating to all the offences charged, taken together, tended to prove guilt in relation to each is R v Chopra (to which we have already referred). It is of note that the editors of Archbold( 2008 Edition) in dealing with that case do not suggest that Chopra is properly described as a case where the prosecution sought to adduce evidence of propensity. Rather, it is a case in which the prosecution sought to adduce the evidence of all the complaints to make good its reliance on “the unlikelihood of coincidence” [13.40].

In that case a dentist faced three charges of indecently assaulting teenage girls whom he was treating. The prosecution relied on the argument that it was unlikely that a number of girls with no previous association should make similar accusations in similar circumstances. In order to adduce the evidence of similar complaints, the prosecution was compelled to rely upon Part 11 of the 2003 Act and section 101(1)(d), under the rubric of “ Evidence of Bad Character”. But the prosecution was not seeking to adduce evidence of bad character, as it would be understood in a non-statutory sense, nor to show a propensity. The judge correctly directed the jury that absent evidence that the witnesses had colluded, or that their evidence had been contaminated by gossip, they were entitled to deploy the fact that a number of different complainants had made similar accusations.

Chopra demonstrates the danger of attaching a wrong label to a case. If Chopra is catagorised as a case of propensity, then the necessary Hanson-type directions would have to be given. But it is not. It is merely a case, as we have said, in which a complaint in relation to one allegation strengthed the cogency of the evidence in relation to the other offences. A true propensity case requires the prosecution to prove the defendant’s guilt of another offence (which may or may not be the subject of another conviction).Once the jury is satisfied that a defendant is guilty of that other offence (or disreputable conduct), it may deploy that conclusion as tending to show he is more likely to have committed the offence on the indictment. But that is not the position either in Wallace, or in Chopra, in which the jury was required to look at all the evidence and then reach a conclusion in relation to each particular offence.

We have stressed this point because we understand there has been difficulty as to the appropriate direction which should be given in a case like Chopra which should not be regarded as a case of propensity.

We acknowledge that from time to time the court in that case did use the shorthand of describing it as a case in which the prosecution sought to establish a propensity - see in particular Hughes LJ at paragraph 15:

He referred in other paragraphs to propensity (e.g.para.21). However, for the reasons we have given it is, we would respectfully suggest, it is better to avoid references to bad character or to propensity in cases such as Chopra. The question was not whether the evidence which tended to establish a propensity to commit offences of the kind charged but rather whether by reason of the complaints of similar offences on different occasions it was likely that the defendant was guilty of the offences with which he was charged. We also suggest that in Wallace the court (at para. 32) was wrong to describe the issue in Chopra as propensity.

In the instant case the judge admitted the evidence relating to Banff not to establish a propensity, but rather to enable the prosecution to include the evidence relating to the Banff robbery to strengthen the evidence relating to the Leeds offence. This creates a particular difficulty in relation to the process of reasoning available to the jury.

As Mr Gioserano points out, the jury would be entitled to consider both robberies at the same time. But if they are to deploy the Banff material in any fair or proper way they would have to be directed as to the correct process by which they should do so. They would be entitled to look at the evidence as a whole, including the evidence relating to the subsequent robbery in Leeds in deciding whether it was a mere coincidence that he was present in both Banff and then Leeds at the time of two similar shot-gun robberies. It was a curious misfortune that the applicant should be in Banff and later in Leeds at the time of two similar robberies in both places, 400 miles apart.

The evidence of the robbery in Banff and the presence of the applicant at the time it was committed is evidence of bad character pursuant to section 98 and is relevant to an important matter in issue between the defendant and the prosecution, namely whether he was the robber in Leeds,. If the jury concluded that the defendant had committed the robbery in Banff, it would also amount to evidence of a propensity, in the trial for the Leeds robbery, pursuant to section 103(1)(a). Wisely the judge excluded that consequence as an over-complication.

However, in our judgment to admit the evidence of the robbery at Banff would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it ( s.101(3)).

Firstly, the evidence in relation to Banff was only ruled admissible to demonstrate that it was not a mere coincidence that the defendant was in Leeds at the time of that subsequent robbery. If there had been no trial in Scotland, the prosecution might, subject to a second difficulty to which we turn shortly, have adduced the evidence relating to the Banff robbery to show it was an unlikely coincidence that he was present at the time of two similar robberies and, thus as tending to prove the Leeds robbery. Had Banff been in England, the defendant might have been tried for both robberies and the evidence in relation to both might have strengthened the cogency of the particular evidence in relation to each.

If the facts showed that the defendant was not responsible for the Banff robbery then the evidence in relation to Banff was irrelevant to proof of guilt in relation to Leeds. His presence in Banff would be a mere coincidence. Therein arises the difficulty.

There has already been a verdict in Scotland by which the jury found that the case against him was not proven. Mr Gioserano concedes that it would be unfair for the judge to have to direct the jury in England as to what that meant since he would have to explain that that verdict was not the same as a finding of not guilty. The jury would have to conclude that the Scottish jury was wrong before it deployed the evidence in relation to Leeds.

Further, the evidence in relation to Banff involves a very large number of witnesses all of whom (as is almost inevitable in a robbery of this kind) give different accounts of the participant and different accounts of the circumstances. There is, as Mr Johnson has pointed out, evidence of a taxi driver which tends to suggest the robber could not have been this applicant. In short, the jury would be compelled to consider all the facts in relation to the Banff robbery with as much attention to detail as they would in relation to the one offence with which this applicant is charged, namely the offence concerning Leeds.

We take the view that the previous finding of not proven, despite the concession of the prosecution, and the necessity to examine and scrutinise in detail all the evidence in relation to the alleged participation in the Banff robbery, combine to provide a paradigm of a satellite trial which a trial judge ought to avoid, lest the focus of the jury should be diverted and deflected. We take the view that those two particular circumstances do have such an adverse effect on the fairness of the proceedings that the court ought not to admit evidence relating to Banff.

We recognise, as we must, that the primary decision-maker in relation to the admissibility of such evidence and the judgment to be exercised under section 101(3) is that of the trial judge, to whose rulings we have already drawn attention. But we have to say that whilst it is true that she ruled that she did not consider the admission of the Banff evidence would have such an adverse effect on the proceedings and their fairness as to require exclusion, she does not give her reasoning for reaching that conclusion. We thus feel free, exceptionally, to reach a contrary view. We appreciate that it must be rare for this court to substitute its view for that of the judge, but in the particular circumstances of this case we take the view that it is right to do so. We thus allow the application and the appeal and reverse the order in relation to the admissibility of the evidence in relation to the Banff robbery.

We must make clear the limits of that ruling. There is evidence the prosecution seeks to adduce in relation to the finding of a wire brush that appears to have been associated with firearms at premises occupied by this applicant shortly before in Scotland and also an alleged request by him for cartridges which on the face of the evidence he could have used, had he wished, in a shotgun. Both of those pieces of evidence, as Mr Johnson accepts, are admissible in relation to the Leeds robbery and our ruling does not affect the admissibility of those two items.

MR JOHNSON: My Lord, do forgive me. I am not entirely sure if I have a representation order. Could I have one if I do not?

LORD JUSTICE MOSES: If you have you not, you may.

MR JOHNSON: I am most obliged.

LORD JUSTICE MOSES: I make an order pursuant to section 37(5) that the prohibition in subsection (1) shall not apply to any report, provided the report is made anonymous by way of the parties in the case, the Crown Court and the judge.