*R v Bowman and another [2014] EWCA Crim 716

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Court of Appeal, Criminal Division

Section 101 of the Criminal Justice Act 2003 provides, so far as material: '(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 Criminal Justice Act 2003 provides, so far as material: '(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.'

In June 2012, the defendants, B and L, together with a third man, R, drove from London to West Yorkshire in a Lexus motorcar. Cameras recorded the journey. Relevant telephone records revealed that for some days prior to their departure from London, L had been in touch with a man, A, who lived in Ravensthorpe, and, more generally, there was evidence of telephone calls and text messages between B, L and A. B, L and R entered A's house. A gunshot was heard. Thereafter, as the three men left the premises, B was seen carrying a gun and they returned to the Lexus motorcar. Before they left the street, B discharged the gun and a bullet struck the windscreen of a Renault that was driven by a man, H. The defendants were arrested and charged with a number of firearm-related offences. The defendants denied any wrongdoing.

The prosecution's case at trial was that the three men had brought the gun from London. It was suggested also that although they had agreed to purchase drugs from A, their real intention had been to rob him. The prosecution further alleged that when B discharged the firearm towards H, he intended to kill. In the alternative it was argued that at the least he intended to endanger H's life. The prosecution relied upon the expert evidence of a firearms specialist 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.

The matter went to trial and towards the close of the prosecution evidence, prosecution counsel sought to adduce the previous convictions of both defendants. In December 2012, the judge gave his reasons for having admitted certain convictions relating to the two defendants.

In the case of B, the judge admitted convictions in 1990 for offences of conspiracy to commit affray, possessing a firearm without a certificate and wounding. B had received an overall sentence of two-and-a-half years' imprisonment. The facts of the offending appeared to be that the gun was thrown from a car in the context of a fight (hence the charges for conspiracy to commit affray and wounding), and all the occupants were liable for the gun on the basis of joint possession.

The prosecution application in relation to B was based on s 101(d) of the Criminal Justice Act 2003 (gateway (d)) and s 101(g) of the Act (gateway (g)). As regards gateway (d), the judge noted that firearms offences were still a rare occurrence in the United Kingdom and, therefore, the rare nature of offences of that 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 submission that questions asked by counsel for B had amounted to an attack on the character of H, who was a prosecution witness. Thus, the threshold of gateway (g) had been crossed and, dependent upon whether or not B would give evidence and the content thereof, it might become necessary to give directions about the relative characters of H and B.

In the case of L, the prosecution sought to adduce, through gateway (d), a 2005 conviction for possession of a firearm with intent to cause fear of violence. The judge decided that the circumstances of the conviction for possessing a firearm demonstrated that L (i) had ready access to firearms, (ii) had a willingness to use firearms when he considered it necessary in the course of other criminal activity and (iii) had an awareness of and knowledge about guns from his own personal experience, all of which were unusual matters. The judge ruled that the previous conviction of L 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 had been brought from London and, if so, whether L had been aware of its presence and whether he had been in joint possession of it.

At the conclusion of the trial, the judge accordingly gave a direction to the jury on the defendants' bad character (See [35] of the judgment). Subsequently, the defendants were convicted of: (i) possession of a firearm with intent to endanger life (count 2); (ii) possessing ammunition without a firearms certificate (count 3); and (iii) possessing a prohibited firearm (count 4). They were sentenced to: 16 years' imprisonment on count 2, 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 each. They appealed against conviction.

It fell to be determined whether the judge erred in admitting evidence of the bad character of the defendants, by way of previous convictions, as evidence of propensity.

The appeals would be dismissed.

(1) It was established that there was no rule of law precluding a single previous conviction giving rise to a conclusion of propensity. Where there was only one previous conviction and especially where it was some time ago, then caution was needed where it was sought to rely upon that previous single offence in order to found a propensity argument (see [58] of the judgment).

In the present case, the judge had addressed the correct questions and he had not erred in exercising his discretion in admitting B's conviction. The judge's directions to the jury were faultless. He had reminded the jury of the defence arguments on the issue and he directed the jury that the evidence went no further than demonstrating a relevant propensity to be associated with firearms and that it did not prove the allegations faced by B on the present indictment. In all the circumstances that previous was properly admitted (see [61]-[63] of the judgment)

R v Brown [2012] EWCA Crim 773 applied.

(2) It was established that, for the purposes of strict admissibility, when resolving whether the evidence was to be admitted as relevant to an 'important matter in issue' the court did not, as a discrete question, need to satisfy itself as to the strength of the prosecution's case as regards the particular 'matter'. The judge had to always consider the strength of the prosecution case. If there was no or very little other evidence against a defendant, it was unlikely to be just to admit his previous convictions, whatever they were (see [64] of the judgment).

There were notable similarities between L's previous offence and the present one. Most particularly, in both cases it was alleged that L 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. The previous offending had occurred about seven years ago before the present offence. The judge had highlighted in his directions to the jury that L 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 L had ready access to firearms and that he was willing to use them in connection with other criminal activity. In all the circumstances, those factors established a proper basis for the judge to admit that conviction, and although not all judges would have made the same decision, the judge had not erred in the exercise of his discretion. In all the circumstances, the judge had approached the prosecution's application appropriately, and he had given the jury a careful direction as to how they ought to approach that evidence and its relevance. The judge carefully weighed the defence submissions on the potential prejudice of those convictions and his decision was, in all the circumstances, entirely sustainable (see [66], [67], [69] of the judgment).

Reproduced with kind permission of LexisLibrary.