R v Bowman & Anor

On 20 December 2012 in the Crown Court at Leeds before His Honour Judge Collier Q.C., The Recorder of Leeds, and a jury the appellants, Michael Scott Bowman (aged 45) and Mark Anthony Lennon (aged 41) were convicted of possession of a firearm with intent to endanger life (count 2), possessing ammunition without a firearms certificate (count 3) and possessing a prohibited firearm (count 4), and on 21 December 2012 they were sentenced to 16 years’ imprisonment on count 3, 4 years’ imprisonment concurrent on count 3 and 8 years’ imprisonment, again to be served concurrently, on count 4 making a total of 16 years’ imprisonment.

On count 1 (attempted murder) the jury acquitted Bowman and Lennon was acquitted on the judge’s direction following a submission of no case to answer.

Before this court they appeal against their convictions by leave of the single judge.

The single but important issue raised on this appeal is whether the judge erred in admitting evidence of the bad character of the appellants, by way of certain previous convictions, as evidence of propensity. The evidence was said to be relevant to an important matter in issue between the defendant and the prosecution under section 101 (1)(d) Criminal Justice Act 2003 (“CJA”).

The relevant statutory provisions are contained in sections 101 and 103 of the CJA. Section 101 provides:

“(1)

In criminal proceedings evidence of the defendant's bad character is admissible if, but only if –

[…]

(d)

it is relevant to an important matter in issue between the defendant and the prosecution.

[…]

(g)

the defendant has made an attack on another person’s character.

[…]

(3)

The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Section 103 of the 2003 Act provides:

(1)

For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include -

(a)

the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;

[...]

(2)

Where subsection (1)(a) applies, a defendant's propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of -

(a)

an offence of the same description as the one with which he is charged, or

(b)

an offence of the same category as the one with which he is charged.

(3)

Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case.”

It was undisputed at trial that on the 10 June 2012 three men, Michael Bowman, Mark Lennon and a third man said by Bowman to be called “Ricky”, drove to West Yorkshire from London in a Lexus motorcar. Cameras that automatically capture the number plates of cars, along with CCTV cameras, recorded their journey as they travelled north. The relevant telephone records revealed that for some days prior to their departure from London, Lennon had been in touch with a man called Mohammed Aslam, who lived at 49 to 51 Clarkson Street in Ravensthorpe, and, more generally, there was evidence of telephone calls and text messages between Bowman, Lennon and Aslam (in the period between 1 June and 10 June 2012).

A gunshot was heard once they had entered Aslam's house. Thereafter, as the three men left the premises, Bowman was seen carrying a gun and they returned to the Lexus motorcar. Before they left the street, Bowman discharged the gun and a bullet struck the windscreen of a Renault Laguna motorcar that was driven by a man called Razwan Hussain. Hussain rang the police and gave them the registration number of the car carrying the man who had discharged the gun. The vehicle was later found in Todwick in South Yorkshire. Bowman’s fingerprints were on a gun holster recovered from the foot well of the car. The two defendants were arrested in a public house called the Red Lion. Having been cautioned, Lennon said “I don’t know what you’re talking about” and Bowman said “I understand but it’s nothing to do with me.” The handgun was discovered in the grass near the vehicle where Bowman had disposed of it. It is a prohibited firearm and it contained two spent and three unspent cartridges.

A man called Wyatt, who lived in Clarkson Street, knew the occupant of 49 – 51 Clarkson Street as “Rhys” (this was Aslam). He saw Aslam and one of his male relatives go into 49 – 51, just in front of three men he had not seen before. Two of the men were black and one was white. One of them was carrying a “crunched up” red and white plastic bag. He then heard a shot before the men emerged from Aslam’s house. The judge summarized Wyatt’s evidence in this regard as "[t]he three came running out and went back down the same way". Wyatt did not see the carrier bag at this stage but he noticed that the white male was carrying a pistol-type weapon in his left hand down by his left leg. Shortly afterwards, Aslam and his relative reappeared. Wyatt heard another shot and he saw the three men getting into a car. The judge made the following observation to the jury in this context “[h]is evidence may be important to you, particularly when you compare and contrast it with the evidence of Bowman because he does not describe anything of other people, as Mr Bowman does, for example the greeting that he says took place between Mark Lennon and one of the people who got out of the Laguna and things like that. Mr Wyatt saw nothing of that at all” (for Bowman’s account in this regard, see below).

Aslam later told or possibly threatened Wyatt, as follows: “You never saw anything; you never heard anything”.

Amanda Parott, a further neighbour, also heard what sounded like a first gunshot at about 7.40pm, which was followed by another a little later.

The prosecution’s case at trial was that the three men had brought the gun from London. It was suggested that although they had agreed to purchase drugs from Aslam, their real intention was to rob him. The Crown alleged that when Bowman discharged the firearm towards Hussain, he intended to kill; however the jury acquitted him on count 1. In the alternative it was argued that at the least he intended to endanger Hussain’s life and, as we have set out above, both men were convicted of count 2. The prosecution relied upon the expert evidence of a firearms specialist (Home) who expressed a view as to the trajectory of the bullet and the pressure required to operate the mechanism, which indicated in his view that there had been an intention to kill.

Certain aspects of the prosecution’s evidence were of an undoubtedly unsatisfactory nature. Most particularly, Hussain provided statements to the police on 10 and 16 June 2012 that incriminated the appellants, but by the time of trial he was facing serious allegations relating to drugs offences, namely conspiracy to import heroin jointly with Aslam and others, and he was unwilling to answer questions about the present incident. He was treated as a hostile witness and his statements were put to him in detail. Although he began by accepting the truth of certain parts that were read to him, in due course he declined to comment as to whether they represented the truth.

In his statement of 10 June 2012 he stated that at that time he lived in Dewsbury, not far from Aslam’s address in Clarkson Street. When he drove his Laguna motorcar into that road on 10 June 2012 at about 7.45 pm, he saw a blue/grey Lexus car facing him. There was insufficient room for the cars to pass each other, and the drivers began to use their horns. Neither car moved. He suggested that Bowman, who was driving, leaned from the window and told him to move. He then pulled out a handgun and fired it causing something to hit Hussain’s car and the windscreen cracked. He was afraid and drove backwards to escape. He called the police.

In his statement of 16 June 2012 he explained he had been going to see his friend Nasseer, in order to park up and have a smoke. He was unable to provide Nasseer’s surname. En route, he recognised a distant relative, Ashraf Khan, who got in the car, and as a result, Khan was present at the time of the incident. He said he had not mentioned this previously because he believed Khan was an illegal immigrant. As he left the scene he saw another Asian man, “Pecker”, who indicated he had witnessed the incident, and he also got into Hussain’s car and they went together to the police station, although Hussain did not know if his two passengers spoke to the officers.

He denied that he knew the occupant of 49 – 51 Clarkson Road, although he was aware that his name was Aslam and that by reputation he had been involved with police and had previously been in prison. In cross-examination during the trial, Hussain denied the suggestion he was in Clarkson Road that evening by agreement to meet Aslam or that his role was to keep watch outside the address, but he agreed he may have had some telephone contact with Aslam. We interpolate to note that when Hussain and Aslam were arrested as co-conspirators in the drugs offence to which we referred earlier, the evidence gathered for the purpose of that prosecution showed, amongst other things, over 400 telephone calls made between the two men in the period February to June 2012. Hussain explained in evidence that he did not wish to get Aslam involved because he was a bad man. He agreed that between making his two statements, he had been arrested collecting carpets containing heroin from Manchester airport, but denied he had known these contained drugs. At one stage he indicated he had an account to tell but that this would not be revealed until his trial relating to this alleged importation of drugs.

Aslam was arrested on 3 July 2012 in relation to a drugs conspiracy with Hussain and others. He was interviewed under caution and he declined to answer questions. He did not, therefore, provide any account concerning the events of 10 June 2012, and he did not attend as a witness at trial.

The prosecution invited the jury to draw an adverse inference against both appellants on the basis of their refusal to answer questions during their interviews following their arrests, although Lennon gave a “prepared statement” in which he set out that he was unaware of any gun when he travelled up to London with Bowman and Ricky. He said there was a struggle inside the house during which the gun was discharged. Thereafter he heard a gun being discharged in the street but did not see by whom as he had put his head down in fear.

As we indicated at the outset of this judgment, the prosecution also relied on evidence of the bad character of both appellants. The judge’s decision on this issue is the subject matter of this appeal and we have considered the detail of the application below.

Bowman gave evidence. He said he lived in London with his partner and children. He made money by purchasing “snide stuff” such as electrical goods and clothes that were re-sold at a profit. His account was that Lennon had arranged to purchase some iPhones in Ravensthorpe, whereto they travelled on 10 June with another man (“Ricky”) who drove the Lexus. Bowman, who sat in the back, had raised £6,000 to purchase the telephones and together with money raised by Lennon they pooled their resources in the hope of securing a better deal.

When they parked in Clarkson Street, he noticed Hussain’s Laguna coming towards them from the direction of North Road. There were three men inside. Lennon spoke to Hussain (known to Lennon as “Cadge”) who was at the wheel of the Laguna and the two men shook hands. Then Aslam, who appeared to know Lennon, invited them into the house, along with another Asian male, who had pulled up in a silver van. He thought Hussain would be joining them; however he remained outside and then appeared to drive away in his Laguna.

Bowman testified that Aslam said Hussain had gone to fetch the iPhones and asked if they wanted to look at some “gear”, meaning drugs, but Bowman declined. He said he felt uncomfortable, particularly when Aslam produced foil, gloves and a small amount of drugs in a bag, and he reiterated that he was only here to buy the electrical goods. Whilst they waited, Lennon went outside for a cigarette and when he returned, he questioned why Hussain was sitting outside in his car when he was supposed to be fetching the iPhones. Once another Asian male appeared the atmosphere in the room became awkward. The judge’s summary of his evidence thereafter was as follows:

"I was sitting on the chair. I saw him move his jacket round. I saw the holster here on his hip with a gun in a holster. I was petrified. I don't know what I was thinking. I've thought about it so much over the last six months but I thought, 'I'm gonna go for it', so I went for it. I grabbed it with both hands. I remember thinking, 'I can't let this go', and I grabbed the holster and the handle and I remember pulling and Aslam was trying to push my hands away. I remember pulling it back and it went off. It was so loud I think it went off by my ear. I didn't know what was going on all over the place. No-one was hurt. I remember waving it and telling them to get back, and Mark and Ricky were trying to get out the door. The three Asians moved back. I think Ricky went first and me last. I think I shouted in the house, 'Let me out of here'.

Then they headed back to the Lexus and when I got to the Lexus I realised I had the holster in my right hand. It's a dodgy hand". He demonstrated his third finger where the tendon's gone and that he cannot move, so he said, "If I hold on to something, I have to hold on really tight. "As I got in the car I heard Mark shout, 'He's got a gun' about somebody in the Laguna, and I got a clear view of the Laguna. Somebody in the rear of the Laguna, if they had not got a gun, was trying to make it look like he had a gun. He had his arm out and I thought they were all over us. "I'd say that the front driver's headlight was about level with the front of the Lexus". That is the relation of the cars, as it were, facing each other. "It was not directly in front but it was level with it and if Ricky had wanted to drive he wouldn't have been able to do so and I think he beeped the horn. "I got out the passenger door. I hadn't even shut it. I heard Asian males behind me and I felt surrounded at one stage. I came round the back of the car and looked up the street at the Asians outside the house. I was looking round the side of the Laguna cos I wasn't sure if he had a gun. I remember I put the gun in my right hand and I'd thrown the holster to the floor. I thought, 'What am I going to do now?' I thought I'd scare them to get out of the way so we could go. I remember saying, 'Get out of the fucking way' and waving my arms around, indicating, gesturing to move the car out of the way. I think he shouted something. I think it was the guy in the back who was dictating, shouting the loudest, but the car came forward slightly. I could hear screaming and shouting behind me. I remember thinking, 'They're not going to move and so I'm going to have to scare them', so I aimed down at the passenger headlamp and it was about the distance from me", he said, where he was in the witness box, to the front of your Jury box. He said, "I fired the gun with my right hand. I shouldn't have done it", he said, "but I just wanted to get out and get back to my kids. I didn't want to hurt anyone. I'm charged with attempted murder but if he'd been killed, it wouldn't make sense. We wanted to get out of there. All I thought was to scare them and they'd move and they did. "When I fired, the car came forward and I jumped back. Then it went back. I think he stalled it and by then I was getting back into the Lexus. The Laguna moved out of the way and drove off towards North Road. I heard another car starting. Aslam and others, I don't know where they went. Then Ricky drove off. It was a nightmare. It was still going on. We got round the corner. There were cars chasing us. I think Ricky was pretty scared driving and the police took up the chase later and we ended up at Todwick”.

Lennon did not give evidence.

The defence relied upon the bad character of the prosecution witnesses Aslam and Hussain, first to correct any assumption that Aslam was incapable of behaving as Bowman suggested; second, to support the contention that Aslam behaved as alleged by the defence; and, third, to support the contention that Hussain was connected with the events of 10 June 2012. Aslam had convictions for conspiracy to rob, robbery, assault on police officers and violent disorder. He had served terms of imprisonment but had never been convicted of firearms offences.

As a footnote to this narrative, the third man “Ricky”, whose real name is Warren Green, was arrested and tried following the convictions of these appellants. He was acquitted, although he admitted an offence of perverting course of justice (he had maintained that the Lexus motor car that belonged to his girlfriend had been stolen).

Towards the close of the prosecution evidence, prosecution counsel sought to adduce the previous convictions of both appellants. In a reserved ruling handed down on 13 December 2012 the judge gave his reasons for having admitted certain convictions relating to the two appellants.

He admitted Bowman’s convictions at the Central Criminal Court on 17 October 1990 for offences of conspiracy to commit affray, possessing a firearm without a certificate and wounding, for which he received an overall sentence of 2 ½ years’ imprisonment. From the information counsel provided to the judge, it appears that the gun was thrown from a car in the context of a fight (hence the charges of conspiracy to commit affray and wounding), and all the occupants were liable for the gun on the basis of joint possession. It appears it was not discharged.

The judge summarized the case against Bowman in the present trial in his ruling as follows:

“17.

In relation to MB the prosecution case is that the jury can infer that the gun was brought by MB to West Yorkshire from London from the following circumstances:”

(i)

The planning of the visit over several days - the first contact ML to MA was on 6.6.12 (visible from the telephone traffic and text messages, and where MB fits into that chronology);

(ii)

The circumstances of what happened in Clarkson Street (both in the house and on the street - there being no evidence at this stage of the trial of the gun being in the possession of anybody other than MB or of the holster being visible in the hand of MB when he went back past Wyatt's house);

(iii)

The gun was retained in the car until they abandoned it in Todwick;

(iv)

The gun was thrown away in Todwick by MB when the car was abandoned;

(v)

The recovery of the holster from the foot well of the car (M B's fingerprints were found on the holster).”

He highlighted the defence submission that this was only one conviction, from “a very long time ago”; that there was a lack of detail about the circumstances in which the offence was committed; and that it involved a conspiracy.

The prosecution application in relation to Bowman was based on section 101 (d) CJA (“gateway (d)”: it is relevant to an important matter in issue between the defendant and the prosecution) and section 101 (g) CJA (“gateway (g)”: Bowman had attacked the character of another person). As regards gateway (d), the judge noted that firearms offences are still a rare occurrence in the UK and therefore the rare nature of offences of this kind could properly be set against the significant time gap between the previous conviction and the current allegation. As to gateway (g) the judge agreed with the Crown’s submissions that questions asked by counsel for Bowman had amounted to an attack on the character of the prosecution witness Hussain, in that “[i]n short it was being put that he was a part of MA's entourage who were intent on ripping off the visitors who had come on an innocent expedition to buy phones”. Thus, the threshold of gateway (g) had been crossed and, dependent upon whether or not Bowman gave evidence and the content thereof, it may become necessary to give directions about the relative characters of Hussain and Bowman.

Lennon had a more extensive record culminating in July 2005 with a conviction for possession of a firearm with intent to cause fear of violence (the appeal in that case is reported as AG Ref 89 of 2005 2006 1 Cr App R (S) 128, p.744; [2005] EWCA Crim 3031). In the instant trial, the case against Lennon was put on the basis of joint enterprise, and a conviction in his case was only possible if the jury had convicted Bowman. Therefore, the case against Lennon depended, inter alia, on the jury concluding that he knew Bowman had taken the gun to Ravenshorpe from London.

The prosecution sought to adduce this conviction pursuant to gateway (d) (the evidence related to an important matter in issue) and it was accepted that gateway (g) did not arise in Lennon’s case because his counsel had not attacked the character of any witness.

The judge decided that the circumstances of the conviction for possessing a firearm demonstrated (i) he had ready access to firearms, (ii) he had a willingness to use firearms when he considered it necessary in the course of other criminal activity and (iii) he had an awareness of and knowledge about guns from his own personal experience, all of which were unusual matters.

The judge noted the concession that was made by Lennon’s counsel that the admissibility threshold had been crossed and therefore the real issue was whether it was fair to admit the conviction. He summarised the arguments thus:

“36.

The particular points […] about fairness were that

(i)

the prosecution shouldn't be allowed to prove that MB pulled out a gun by reference to ML's previous conviction;

(ii)

the use of this conviction was out of all proportion to the issue and what it could provide by way of assistance to the jury;

(iii)

inevitably it will prejudice the jury against the defendants.”

The Learned Judge ruled that the previous conviction of Lennon amounted to material that the jury could use if they thought fit, to help them resolve the issue between the parties, namely whether the gun was brought from London and if so whether Lennon was aware of its presence and whether he was in joint possession of it.

The judge gave the following direction to the jury:

“Now we come to the two defendants. You have heard about each of them, that he has a conviction for an offence in relation to firearms and you have been told a little of the circumstances, first of all surrounding the conviction that Bowman had in 1990 at the Old Bailey for conspiracy to commit affray, possessing a firearm without a certificate and wounding contrary to Section 20 of the Offences Against the Person Act, and you have been told about the conviction recorded against Lennon in 2005 at Kingston Crown Court for possessing a firearm with intent to cause fear of violence. The law permits the Prosecution to put this material before you if it is relevant to an important matter in issue between the defendants and the Prosecution.

A very important issue in this case between both defendants and the Prosecution is whether this gun was brought from London by the defendants and taken into the house by Bowman or whether it was produced in the house by Aslam and taken from him by Bowman. Another important issue, assuming you conclude the gun was brought from London, is whether Lennon knew about it and its intended use.”

In deciding that matter, the Prosecution say that, so far as they are both concerned, the possession and use of firearms is a rare occurrence. Many offences are committed without any type of weapon being used. Some are committed by people carrying weapons. Only a few are committed by people carrying real and loaded firearms.

So far as Bowman is concerned, the Prosecution say that, although it is a long time ago, it shows that he was prepared to be involved in a group of people who between them had a firearm in the boot of the car when they were conspiring to commit an affray. They, that is the Prosecution, say it shows a propensity which means a tendency, on his part to use firearms to commit offences.

So far as Lennon is concerned, the Prosecution say it shows he was in possession of a firearm for which he was convicted of using with the intention of causing people to fear he would use violence against them. You should note that it was not suggested that this was a case of joint possession, as in Bowman's case. That conviction, they argue, shows ready access to firearms, a willingness to use them in connection with other criminal activity, on that occasion making threats of violence and so a likely awareness of a firearm being used in connection with a criminal enterprise.

What do the Defence say? The Defence say, in relation to Bowman, it is a very long time ago, it was a joint offence involving a large number of youths, it was a weapon in the boot of a car, there was no ammunition, it was not used and that, given those matters, this cannot amount to a propensity. Furthermore, they say, he pleaded guilty to what he had done. As for Lennon, Mr Nathan argues, "This does not help you because there is no case to answer and the starting point for using this information would be that there is evidence to which this can be added; it does not provide evidence itself of his guilt in these offences".

How should you approach and use this information about these two defendants? First, you must be very careful not to draw any conclusion such as, "Well, because he has done those things in the past, he must be guilty of this offence now". The use you may make of the information is limited.

Before you can make any use of it in deciding whether the Prosecution have established the ingredients that are in issue in proving any of the offences, you must decide whether you are sure that they show the defendant whose case you are considering has what is called a propensity, which means a tendency, to use or be associated with firearms.

If you are not satisfied that the person whose case you are considering has such a tendency, you should disregard their convictions in relation to deciding whether he acted as the Prosecution allege. On the other hand, if you are sure those convictions show he had such a tendency, you may have regard to them when deciding whether you are sure he behaved as the Prosecution allege in the case of Bowman or that he had the knowledge that the Prosecution allege in the case of Lennon.

However, it is very important you bear in mind that those convictions are not evidence that either of them was, whether solely or jointly, in possession of a firearm. It is certainly not evidence that Bowman or Lennon committed any offence and you must be very careful not to give them disproportionate weight in your assessment of matters. You need to go through the steps I have just outlined in deciding whether you are sure the convictions do establish a propensity to be associated with firearms and, if so, then you can decide how far that helps you in deciding the other matters you have to decide.

Members of the Jury, there you are.”

The arguments for Bowman advanced during the appeal departed radically from the written grounds of appeal. The appellant’s earlier contentions, based on what the judge was alleged to have said (and not said) on the issue of propensity during his ruling, were abandoned. Instead, in oral argument before this court Mr Sherrard Q.C. emphasised that the present offences were allegedly committed on 10 June 2012 with the trial ending on 20 December 2012, and the convictions relied on related to events on 17 October 1990, a considerable number of years earlier. It is stressed that the judge had scant information, summarised above, as to the circumstances in which those offences had been committed.

Against that background, it is contended that the judge erred in acceding to the prosecution’s application under gateways (d) and (g). In the event, the case was not left to the jury under gateway (g), and Mr Sherrard submitted that later events proved the judge had been wrong to admit the conviction on this basis (the attack on the character of Hussain) because Hussain later pleaded guilty to the drugs offence which was the issue about which the questions as to his character had been directed. It is suggested that rather than his character having been attacked, the questions simply related to whether he was telling the truth about his involvement with Aslam and his participation in the events of 10 June 2012.

Turning to whether the appellant’s 1990 convictions, which included an offence of possessing a firearm without a certificate, should have been left to the jury on the basis that they were relevant to a matter in issue between the prosecution and the defence, Mr Sherrard suggested that gun crime is not as uncommon in the part of the country where this offence was committed as the judge remarked. It is argued that this is not in any sense an unusual event.

Additionally, Mr Sherrard submitted that the prosecution had been unable to provide sufficient meticulously accurate information about the 1990 convictions. In this regard he relied on R v M [2012] EWCA Crim 1588; [2012] 2 Cr. App. R 25, page 316. In that case bad character evidence was admitted concerning a number of robberies. However, there was an issue as to whether the prosecution had proceeded against the appellant through to conviction as regards all of the robberies on which the prosecution sought to rely. Accordingly, although the prosecution had a summary of the circumstances of the alleged offences, there was a live issue as to whether they were previous convictions at all. It would appear that later investigations demonstrated that the appellant may have been correct in his assertion that he had not been convicted of the entirety of the offences relied on by the prosecution. It was against that background that the Lord Chief Justice, Lord Judge, observed:

“15.

When such an issue arises it is imperative that the judge is supplied with meticulously accurate information about a defendant’s previous convictions and that, whatever other considerations may apply, the jury should not be misinformed in any way which might suggest that the defendant’s previous convictions are worse, and more serious, than in truth they are. That is what happened here.”

In summary, it is submitted that these are convictions from a considerable time ago, in relation to which the prosecution had little information, and there was only one previous firearms offence. It is additionally suggested that it was unfair on Bowman for Lennon’s conviction to have been admitted.

For Lennon, Mr Winter QC (who did not appear at trial) also suggests the judge erred in his decision. He has advanced a number of separate points.

“An important matter in issue”

First, it is contended that the appellant’s trial counsel should not have conceded that the admissibility threshold under gateway (d) had been crossed. It is suggested that the appellant’s trial counsel had been confused on this issue, in that he wrongly accepted that the conviction was prima facie admissible, and that he erred in limiting his submissions to the sole issue as to whether it should be excluded as an exercise of the judge’s discretion. It is argued that the requirement of section 101(l)(d) CJA, that the bad character is "...relevant to an important matter in issue between the defendant and the prosecution" means that the prosecution must adduce primary evidence of the alleged matter so as to establish factually the 'issue between the defendant and the prosecution", before any question of the admission of bad character arises. It is only when the issue has been demonstrated in this way that the jurisdiction under section 101(l)(d) to admit evidence of bad character is triggered. It is contended that as a matter of law and logic the fact that someone has been convicted of a previous crime is incapable of itself of proving that he committed the crime in relation to which he is on trial.

Therefore, it is argued that on the facts of this case the prosecution needed to adduce primary evidence that the Appellant was in possession of the gun when he left London before the court could consider the issue of admissibility.

In support of this argument Mr Winter has reminded the court of two oft-quoted passages from the judgment of Rose LJ (VP) in R v Hanson [2005] 2 Cr App R 21; [2005] EWCA Crim 824, that "[e]vidence of bad character cannot be used simply to bolster a weak case, or to prejudice the minds of a jury against a defendant" [18] and "[t]he starting point should be for judges and practitioners to bear in mind that Parliament' s purpose in the legislation, as we divine it from the terms of the Act, was to assist in the evidence based conviction of the guilty, without putting those who are not guilt y at risk of conviction by prejudice " [4].

Mr Winter contends that there was no evidence as regards the gun sufficient to establish a relevant issue between the defendant and the prosecution, and in the event it is argued his convictions served no greater purpose than to create the risk of a conviction founded simply on the basis of prejudice.

Put shortly, it is argued that there was no evidence that the appellant was in possession of the gun until he left 49 - 51Clarkson St, at which stage there was undoubted evidence – indeed it was admitted – that Bowman was holding it. It is argued that there was no proper basis for the jury to have concluded that he had been in possession of it when he left London.

Therefore, the appellant submits that the one of the essential triggers for section 101(1)(d) was absent and there was no proper basis for the judge to admit the evidence of his previous conviction, given the prosecution only sought a conviction of the appellants if Bowman had taken the gun into 49 – 51 Clarkson Street. Indeed, it is suggested that Mr Nathan should have submitted there was no case for the appellant to answer (although no ground of appeal has been advanced on this basis).

Finally on this point, it is observed that this was not an issue to which the judge gave any consideration during his ruling when he concluded that the appellant's previous conviction was "material which the jury could if they thought fit use as some additional material to help them decide this matter in issue between the parties, namely whether the gun was brought from London and if so whether [the Appellant ] was aware of its presence and if so whether he could be said to be jointly in possession of it".

As quoted above, the judge directed the jury that they could conclude from the evidence of the previous conviction that the appellant had a propensity to use or be associated with firearms so as to make it more likely that he was in possession of it on this occasion. Mr Winter argues that this particular previous conviction did not establish propensity on the part of the Appellant to commit a crime such as that alleged in this case.

In this context also, Mr Winter relies on the judgment of this court in Hanson. Rose LJ set out guidance for determining propensity as follows:

“7.

Where propensity to commit the offence is relied upon there are thus essentially three questions to be considered:

(1)

Does the history of conviction(s) establish a propensity to commit offences of the kind charged?

(2)

Does that propensity make it more likely that the defendant committed the offence charged?

(3)

Is it unjust to rely on the conviction(s) of the same description or category; and, in any event, will the proceedings be unfair if they are admitted?

8.

In referring to offences of the same description or category, s.103(2) is not exhaustive of the types of conviction which might be relied upon to show evidence of propensity to commit offences of the kind charged. Nor, however, is it necessarily sufficient, in order to show such propensity, that a conviction should be of the same description or category as that charged.

9.

There is no minimum number of events necessary to demonstrate such a propensity. The fewer the number of convictions the weaker is likely to be the evidence of propensity. A single previous conviction for an offence of the same description or category will often not show propensity. But it may do so where, for example, it shows a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged (compare Director of Public Prosecutions v P (1991) 93 Cr.App.R. 267 at 279, [1991] 2 A.C. 447 at 460E to 461A). Child sexual abuse or fire setting are comparatively clear examples of such unusual behaviour but we attempt no exhaustive list. Circumstances demonstrating probative force are not confined to those sharing striking similarity. So, a single conviction for shoplifting, will not, without more, be admissible to show propensity to steal. But if the modus operandi has significant features shared by the offence charged it may show propensity.

10.

In a conviction case, the decisions required of the trial judge under s.101(3) and s.103(3) , though not identical, are closely related. It is to be noted that the wording of s.101(3) —“must not admit”—is stronger than the comparable provision in s.78 of the Police and Criminal Evidence Act 1984 —“may refuse to allow”. When considering what is just under s.103(3), and the fairness of the proceedings under s.101(3) , the judge may, among other factors, take into consideration the degree of similarity between the previous conviction and the offence charged, albeit they are both within the same description or prescribed category. For example, theft and assault occasioning actual bodily harm may each embrace a wide spectrum of conduct. This does not however mean that what used to be referred to as striking similarity must be shown before convictions become admissible. The judge may also take into consideration the respective gravity of the past and present offences. He or she must always consider the strength of the prosecution case. If there is no or very little other evidence against a defendant, it is unlikely to be just to admit his previous convictions, whatever they are.”

It is submitted that the admission of the evidence of the previous conviction did not fall within that guidance. Instead, the conviction established that the appellant, having been assaulted in a public house, then went away and later returned with a gun in order to exact revenge against his assailants and others who were in and near the public house. It is said it did not establish that he had a propensity to take a firearm with him when concluding a drug, mobile phone or other illegal deal.

Therefore, it is argued that this single conviction for possessing a firearm in markedly different circumstances was not capable of establishing propensity on the appellant’s part to conduct drug, mobile phone or other unspecified illegal deals whilst in possession of a firearm.

It is suggested the judge failed to consider the strengths, or more importantly the weaknesses, of the prosecution case in deciding whether to admit the evidence. It is argued that he therefore failed to comply with the requirement to do so set out at paragraph 10 of Hanson: "[the judge] must always consider the strength of the prosecution case. If there is no or very little other evidence against a defendant, it is unlikely to be just to admit his previous convictions, whatever they are. "

Section 101(3) of the CJA prohibits the admission of evidence of bad character under subsection (l)(d) if the admission of the evidence would have such and adverse effect on the fairness of the proceedings that the court ought not to admit it. It is suggested that in light of the lack of evidence that the appellant had been in possession of the gun when he left London, the evidence that he had previously been in possession of a gun with intent to endanger life was significantly prejudicial. It is submitted this explains why the jury convicted him.

It is argued that it follows that the prejudice was overwhelming such that it adversely affected the fairness of the proceedings.

It is contended that these submissions apply equally in relation to the admission of Bowman’s previous conviction, in that the combined effect of the convictions of both appellants significantly aggravated the effect of the bad character evidence. Once the jury knew that both men had previous convictions for possessing firearms a fair trial was impossible.

As set out above, the judge explained to the jury that the “very important issue in this case between both defendants and the Prosecution [was] whether this gun was brought from London by the defendants and taken into the house by Bowman or whether it was produced in the house by Aslam and taken from him by Bowman. Another important issue, assuming you conclude the gun was brought from London, is whether Lennon knew about it and its intended use.” Against the background that in the judge’s assessment it is a rare event for offences to be committed by individuals carrying loaded and working firearms, the judge directed the jury that as regards Bowman his conviction potentially established that he was prepared, albeit a long time ago, to be involved with a group of people who between them had in their possession a firearm in the boot of the car when they were travelling to commit an affray. The judge indicated that the suggested relevance of this evidence was that it demonstrated a propensity or a tendency on Bowman’s part to use firearms to commit offences.

Although this earlier offending occurred in 1990, in the earlier case and in the present trial there was the distinctive feature that the gun was allegedly carried in a motorcar in order to enable the occupants to commit another offence (viz. affray and robbery). The question is whether it was an impermissible exercise of discretion for the judge to admit this suggested evidence of bad character. In R v Brown [2012] EWCA Crim 773, this court upheld a trial judge’s decision to admit a single conviction for dangerous driving that had been committed a number of years before when the defendant was charged with dangerous driving when he was attempting to flee from the police. Gross LJ, giving the judgment of the court, observed that the principal question in situations such as the present on appeal is whether the judge’s conclusion was soundly based in law, recognising the wide discretion given to trial judges in this area. He observed:

“25.

[…]We repeat that which has been said before, that there is no rule of law precluding a single previous conviction giving rise to a conclusion of propensity. Obviously where there is only one previous conviction and especially where it is some time ago, then caution is needed where it is sought to rely upon that previous single offence in order to found a propensity argument. We do not, with respect, read the observations of the Vice President in Hanson at paragraph 9, to which Mr Ley drew our attention, as going any further than that. Similarly, with regard to the decision in the case of R v M [2006] EWCA Crim. 3408, [2007] Crim.L.R 637, the decision goes no further than saying that this court will interfere where a judge was plainly wrong and thus by inference proceeding outside the ambit of a proper discretion in admitting a previous conviction. It may be noted that almost nothing was known in that case about the single previous conviction and it was some 20 years old. Here, in a case where the appellant gave a version of the facts along the lines that we have already summarised, we do see a proper basis for the judge having admitted the 2002 conviction. As Miss Purnell summarised it, in both cases he had driven at excessive speed, lost control and damaged property. As we have already observed, some judges might have declined the prosecution application; this judge did not and we cannot say she was in error in the course she adopted.”

In this regard we refer also to the recent decision of this court in R v Burdess [2014] EWCA Crim 270. In that case this court upheld the trial judge’s decision to permit the prosecution to introduce a single previous conviction for rape when the previous rape and the index offence had in common a distinctive and unusual feature, namely that “that sexual intercourse took place in circumstances where there was an acute risk of immediate discovery if the man was committing rape rather than participating in consensual sexual intercourse” [12]. In the present case, for the reasons we have already rehearsed, we consider that there are relevant distinctive features in common between the two incidents. The older case of R v M [2006] EWCA Crim 3408 serves to highlight a more restrictive approach. However, it is recognized that judges have a broad discretion in this regard, with which this court will only interfere if the judge erred in his decision. Rose LJ in Hanson stressed that “If a judge has directed himself or herself correctly, this Court will be very slow to interfere with a ruling […] as to admissibility […]” [15].

In our judgment, notwithstanding the submissions of Mr Sherard, the court had been provided with the critical background facts as regards the 1990 offence, in the kind of detail that frequently is put before the jury when previous convictions are admitted. Given the circumstances of the earlier offence had been explained by the appellant, the problems that had occurred in R v M (2012) were not present: it was accepted that these were convictions and the basic facts of the firearms offence were before the court.

We readily accept that some judges may have reached a different decision, but in our judgment the judge addressed the correct questions and we do not conclude that he erred in exercising his discretion in admitting this conviction.

The judge’s directions to the jury were faultless, and we particularly stress that he reminded the jury of the defence arguments on this issue and he directed the jury that this evidence went no further than demonstrating a relevant propensity to be associated with firearms and that it did not prove the allegations faced by the appellant on the present indictment.

In all the circumstances this conviction was properly admitted and we dismiss Bowman’s appeal against conviction.

We are unable to accept Mr Winter’s suggested approach to the “important matter in issue”, namely that the prosecution should first have adduced primary evidence that the appellant was in possession of the gun when he left London before the court could properly consider admitting his previous conviction. The CJA does not contain such a precondition. Section 101(1)(d) is not directed at evidential sufficiency but instead it principally concerns the relevance of the evidence that it is proposed should be introduced, and particularly it focuses attention on the issue of whether the bad character evidence will throw light on the real issue or issues in the case. In R v Bullen [2008] EWCA Crim 4; [2008] 2 Cr App R 25, at paragraph 29, this court emphasised the centrality of relevance in this regard: “Nevertheless, for all the change in the law, the test is still relevance: see s. 101((1)(d) itself, and the introductory language of s.101 itself: ‘is admissible if, but only if … (d) it is relevant to an important matter in issue …’” (see also paragraph 33). We repeat, the statute does not create the additional admissibility hurdle of requiring that the important matter in issue has been made out by prima facie evidence. The time to test the sufficiency of the evidence is by way of a dismissal application (schedule 3 Crime and Disorder Act 1998), a submission of no case to answer or when considering the “fairness” provisions (section 78 Police and Criminal Evidence Act 1984 or sections 101(3) or 103(3) of the CJA). Therefore, for the purposes of strict admissibility, when resolving whether the evidence is to be admitted as relevant to an “important matter in issue” the court does not, as a discrete question, need to satisfy itself as to the strength of the prosecution’s case as regards the particular “matter”. We are fortified in this conclusion by the decision in Hanson, in that the court in that case only considered the consequences of evidential weakness in the context of applying sections 101(3) and 103(3) rather than when addressing section 101(1)(d) (see paragraph 10 of the judgment set out at [50]): “(the judge) must always consider the strength of the prosecution case. If there is no or very little other evidence against a defendant, it is unlikely to be just to admit his previous convictions, whatever they are”. We address hereafter whether this was a weak case against Lennon.

The appellant’s conviction in 2005, following a trial, concerned an incident in which Lennon was ejected from a public house after a disturbance: he was assaulted and received head injuries. Shortly afterwards, he returned carrying a handgun. At least one shot was fired. He then left the public house and approached two customers, and he behaved in a threatening manner towards them. He then re-entered the bar, still holding the gun.

Although there are obvious differences between the two offences (principally the earlier offence did not involve a drugs robbery), there are also notable similarities. Most particularly, in both cases it was alleged that the appellant was prepared to carry and discharge a loaded firearm in public and he behaved in an entirely reckless and violent manner, with no attempt to hide his identity. We note also that the previous offending occurred about 7 years before the instant offence. As the judge highlighted in his directions to the jury, in the earlier case Lennon had been in possession of a firearm with the intention of causing people to fear he would use violence against them. That conviction tended to demonstrate that Lennon had ready access to firearms and that he was willing to use them in connection with other criminal activity.

In all the circumstances, in our judgment these factors established a proper basis for the judge to admit this conviction, and although not all judges would have made the same decision, the judge did not err in the exercise of his discretion. Put otherwise, this single conviction may properly have helped the jury resolve an important matter in issue in the case – given the similarities in circumstances – namely whether the gun was brought from London by the defendants and taken into the house by Bowman or whether it was produced in the house by Aslam and taken from him by Bowman.

This was not a weak case. Even prior to Bowman giving evidence, there was sufficient evidence for the jury to be sure that Bowman brought the gun to West Yorkshire from London. This was the result of the combined effect of the apparent careful planning of the visit over several days; the events in Clarkson Street, both in Aslam’s house and on the street (in this context it is important to bear in mind there was no evidence – until Bowman gave evidence – of the gun being in the possession of anybody other than Bowman); the retention of the gun in the car until they abandoned it in Todwick, when it was thrown away and the car was abandoned; and the recovery of the holster from the foot well of the car carrying Bowman’s fingerprints. There was a clear case to answer on that basis, and once Bowman gave evidence, if the jury rejected his account, that would have added a further platform on which the jury would have been entitled to be sure that Bowman had brought the gun from London, as part of a joint enterprise robbery.

In all the circumstances, the judge approached the prosecution’s application appropriately, and he gave the jury a careful direction as to how they should approach this evidence and its relevance. The judge carefully weighed the defence submissions on the potential prejudice of these convictions and his decision was, in all the circumstances, entirely sustainable.

We dismiss Lennon’s appeal against conviction.