R v McAllister (David)

(As approved)

: 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...