The defendant was a drug user who also sold crack cocaine. He and a young female drug addict were charged with offences relating to obtaining money from an elderly vulnerable man. Whilst on bail, the defendant and a male drug user together entered the home of the deceased, another elderly man, in the early hours of the morning where he was bound, gagged and injured and died as a result of his injuries. The defendant and the male drug user were charged with murder and both denied responsibility. It was the Crown’s case that the defendant and his co-accused acted together to kill the deceased in the course of a financially motivated burglary which had gone wrong. At trial, the Crown applied to adduce the evidence from and about the elderly vulnerable victim as evidence of bad character pursuant to section 98(a) of the Criminal Justice Act 2003. The judge granted leave and gave a brief extempore ruling then detailed written reasons after the trial. He assumed the evidence was that of bad character under section 98(a) without specifically deciding it when he admitted it under (i) section 101(1)(c) as important explanatory material; (ii) section 101(1)(d) as evidence relating to an important matter in issue between the defendant and the Crown, tending to rebut the defendant’s defence that he was at the deceased’s house for an innocent reason and to show the defendant’s propensity to use force to obtain money from vulnerable men; and (iii) section 101(1)(e) as having substantial probative value in relation to an important issue between the defendants namely which one used the fatal violence on the deceased. The judge directed the jury that the relevance of the witness’s evidence-in-chief was limited going only to the defendant’s circumstances at the time and how he might have reacted, before admitting the achieving best evidence interviews. Counsel for the defendant cross-examined the witness to the defendant’s advantage and the defendant denied the allegations he made, contending he had not used violence or threats against him. In written legal directions, the judge gave the standard direction that the fact the witness had been cross-examined over a video link was no reflection on the defendant and irrelevant to the jury’s approach. He reminded the jury that the witness’s evidence (i) had been at odds with his earlier evidence to the police and directed them as to how to approach inconsistent statements; (ii) was relevant to the defendant’s circumstances at the time of the offence and how he might have reacted to them; (iii) could lend support to the co-accused’s case if they thought it might show the tendency or motive contended for. He identified the Crown’s case and told the jury that the evidence could only provide support for it if they were sure it established the tendency or motive alleged and even if they were sure, they should not convict the defendant wholly or mainly for that reason. The defendant was convicted and appealed against conviction on the grounds that the judge had been wrong to allow the evidence to go before the jury and he should have excluded it under section 78 of the Police and Criminal Evidence Act 1984 rather than admit it under section 101(1)(c) or (d). He should not have admitted it under section 101(1)(e) because its probative value was not substantial. Alternatively, the judge erred in directing the jury as to how they could use the evidence to reach verdicts on a charge of murder as it was incapable of supporting either the co-accused’s or the Crown’s case.
On the appeal—
Held, appeal dismissed. The evidence adduced from and about the elderly vulnerable man was of recent events going to motive and to do with the facts of the offence, pursuant to section 98(a) of the Criminal Justice Act 2003. If accepted, its admission needed no justification via any of the section 101 gateways. The judge had been correct that the evidence was probative of a motive by the defendant to commit an acquisitive offence to feed his drug addiction and he reflected that in his written legal directions to the jury, to which defence counsel did not object. Logically, a drug addict who had no readily available resources was more likely to commit acquisitive offences than he was when he had a reliable regular income and losing his income afforded or strengthened a motive for theft or burglary. Taken at its highest, the evidence showed the defendant had become accustomed to obtaining money from a vulnerable old man from whom the funding stream had recently been cut off, which would give the defendant a good reason to take part, with his co-accused, in the burglary of someone like the deceased. The judge had been right not to exclude it. Where the offence charged was murder, the allegations of false imprisonment, use of threats and some violence were not unduly prejudicial because they were scandalous and had little weight (although the same might not be true where the evidence that was not directly related to the offence revealed behaviour more reprehensible than the offence itself). The judge ensured the jury understood the limited role the evidence could play in the overall scheme of things and his propensity direction represented a safeguard for the defendant, providing protection against misunderstanding or over- reliance on the material by the jury. He directed them not to treat the evidence as providing any support for the Crown’s case unless they were sure it established the motive or propensity contended for. There was a rational and sufficient case to be made for the admission of the evidence on the second basis under section 101(1)(d) and (e) as evidence relating to an important matter in issue between the defendant and the Crown, tending to rebut the defendant’s defence that the reason for his presence at the deceased’s house was innocent and to show propensity to use or threaten force to obtain money or other property from vulnerable men. It was admissible under 101(1)(e) as having substantive probative value in relation to an important issue between the two defendants namely who used the fatal violence on the deceased (paras 31–34, 35, 36–37, 40–41).
Sam Green QC (assigned by the Registrar of Criminal Appeals) for the defendant.
Peter Moulson QC (instructed by Crown Prosecution Service, Appeals Unit, Special Crime Division) for the Crown.