R v Randall (Edward Peter)

JurisdictionEngland & Wales
Judgment Date18 December 2003
Neutral Citation[2003] UKHL 69
Date18 December 2003
CourtHouse of Lords

[2003] UKHL 69


The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Steyn

Lord Hobhouse of Woodborough

Lord Scott of Foscote

Lord Rodger of Earlsferry

(Respondent) (On Appeal from the Court of Appeal (Criminal Division))

My Lords,


I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Steyn. For the reasons he has given, with which I wholly agree, I was also of the opinion, announced at the end of the oral hearing of the appeal, that it should be dismissed.


My Lords,


The certified question of law before the House is as follows:

"Where two accused are jointly charged with a crime, and each blames the other for its commission, may one accused rely on the criminal propensity of the other?"

Since this is a position which frequently arises in criminal trials, notably in cases of homicide and other offences against the person, the point is of considerable practical importance.

The Killing.


On the evening of 8 May 2001 in Rickmansworth, Hertfordshire, Michael Barber, aged 55 years, was attacked. His assailant or assailants inflicted nine separate serious injuries to his head. He was found in an unconscious state on a footpath near the home of Susan Rowe. He never regained consciousness. On 12 May 2001 he died of the cumulative effect of his injuries.

The Trial.


In January 2002 and at the Crown Court in St Albans two men stood trial on a charge of the murder of the deceased. They were the respondent, Edward Randall (aged 30 years), and his co-accused, Nicholas Glean (aged 39 years). They had been staying at the house of Susan Rowe, Randall's aunt, some 50 metres from where the deceased was found. The deceased had called at Susan Rowe's address in an intoxicated state. There was a struggle to eject him from the premises and he staggered away. The prosecution case was that Randall and Glean, acting jointly or independently, had attacked the deceased and caused his injuries. Randall and Glean raised cut throat defences: they blamed each other for the death of the deceased. The trial lasted two weeks. On 30 January 2002 the jury returned their verdicts. They found Randall guilty of manslaughter. The judg sentenced him to 8 years imprisonment. Glean was acquitted.

The shape of the trial.


Given the fact that the issue is one of principle, and that the evidence was reviewed in detail by Kennedy LJ in the Court of Appeal, I can describe the shape of the case, so far as it is material, briefly. The deceased had made a nuisance of himself at the home of Susan Rowe. Randall and Glean were at the scene. Each had a motive for attacking the deceased. The background was explained by Susan Rowe. Her evidence is summarised in the agreed statement of facts and issues as follows:

"Susan Rowe gave evidence to the effect that the deceased had arrived at her address at around 10.45pm. [Randall] was not present but Nicholas Glean was. The deceased was visibly drunk and Susan Rowe refused him entry to her home. [Randall] arrived shortly thereafter and he asked the deceased to leave. [Randall] took hold of the deceased's arm and there was a scuffle during which the deceased fell to the ground. Nicholas Glean got between the two men. The deceased shouted 'I'm going now' and left. He then walked off, crossing a dual carriageway nearby. Susan Rowe was concerned and [Randall] agreed to go after the deceased to see whether he was alright. Glean agreed to go too but, according to Susan Rowe, before leaving, went to the back of the house and left as if he was concealing something under his coat. Susan Rowe later discovered a hammer missing. [Randall] and Glean then set off in the direction that the deceased had taken."

She did not witness the attack. But she said that Randall was the first to return to her home. Glean followed moments later saying "he's alright, he's across the road." Randall then went to bed. She said that Glean told her that his jumper needed washing and that she soaked it for him. This was challenged on behalf of Glean. She stated that Glean said that the deceased would not be bothering her again and that it was nothing to do with her or Randall. He later threatened her with violence if she went to the police. This too was challenged.


Karen Parr had a child by Glean. She gave evidence that he had telephoned her on 9 May 2001 and had admitted the attack stating that he had used a hammer. Elaine McGrath was Randall's former girlfriend. She testified that on 9 May 2001 Randall had told her that he thought he may have killed someone.


Randall and Glean gave evidence. Each blamed the other for the infliction of the fatal injuries. Randall's case was that he left the house and followed the deceased in order to ensure that he was actually leaving the area. He said the deceased attacked him. He admitted striking the deceased and knocking him to the ground. He admitted kicking him once whilst on the ground as he feared the deceased was about to regain his feet. He denied that he was in any way responsible for the infliction of the fatal injuries. As he returned to Susan Rowe's house he saw his co-accused Glean heading towards where the deceased was lying on the ground.


Glean's case was that although he accepted leaving Susan Rowe's home, he did so after Randall in order to see what was happening. He denied going anywhere near where the deceased lay and said that he had no contact with him whatsoever. After a short while he returned to Susan Rowe's home arriving back before Randall. He claimed that when Randall returned Randall said to Susan Rowe words to the effect that "I really fucking hurt him, I've stamped on his head." This was challenged by Randall.


Each accused gave evidence against the other. In the result it was common ground that each had lost the protection of section 1 of the Criminal Evidence Act 1898. Counsel for each accused elicited his previous convictions during evidence in chief. Randall had relatively minor convictions for driving offences and disorderly behaviour. On the other hand, Glean had a bad record. Apart from convictions for theft and going equipped for theft he had 9 separate convictions for burglary. The most recent involved a burglary by a gang of a domestic dwelling house. The occupier was threatened by one of the burglars with a hammer. Glean was armed with a screw driver.


Randall was cross-examined about alleged assaults on Elaine McGrath. It was suggested that he was a Jekyll and Hyde character who had a propensity to use violence. Glean was cross-examined on the basis of his propensity to use violence. Counsel for Randall elicited that about a month before the deceased's death Glean was involved in a robbery committed by a gang. All the robbers were armed with knives. One of the robbers held a knife to the throat of one of the victims. The gang tied up the two victims with telephone wire. Glean admitted threatening one of the witnesses by saying "if they get me for this I will get you". At the time of the deceased's death Glean was "on the run" from the police for this robbery.


In speeches to the jury counsel for each accused emphasised to the jury the propensity of the other accused to use violence as being relevant to the likelihood of that accused having committed the attack.


In his summing up, however, the judge directed the jury to regard the bad character of Glean as relevant only to his credibility and stated that convictions and character were irrelevant to the likelihood of him having attacked the deceased. This is how he put it:

"So the issue I want you to grasp now is this, that you have heard about those previous convictions because they may assist you when you come to judge the truthfulness of this defendant, Nicholas Glean's evidence, when he gave evidence before you in this court earlier this week. It is important that you remember that it would be utterly wrong for you automatically to assume that either he is guilty of murder or has not been telling you the truth just because he has those previous convictions, grave though they are and grave though it is, the matter which he has admitted to you, though he has not yet been convicted in a court about it. So those convictions are not relevant to the likelihood of his having committed this offence of murder, nor are they evidence that he did commit this offence of murder. Their relevance is to allow you to assess whether you believe what he has told you on oath. You do not have to allow those convictions to affect your judgment. It is for you to decide the extent to which, if at all, those previous convictions and what he has told you about his character help you as you reach your true verdict according to the evidence in this case."

The proceedings in the Court of Appeal.


On appeal to the Court of Appeal counsel for Randall argued that the evidence of Glean's bad character was relevant to the issue who, as between Randall and Glean, was more likely to have inflicted serious violence on the deceased. Accordingly, he submitted, that the judge misdirected the jury in a material respect. The Crown submitted that, except in cases of similar fact evidence, evidence of the propensity to violence of a co-accused can never be relevant to the issues between the Crown and the other accused.


Relying in particular on the decision of the Privy Council in Lowery v The Queen [1974] AC 85 and the Court of Appeal in R v Bracewell (1978) 68 Cr App R 44, the Court of Appeal upheld the submission made on behalf of Randall: R v Randall [2003] 2 Cr App R 442. Kennedy LJ observed, at p 451, para 29:

"We agree, and accordingly in the particular circumstances of this case, where there was a cut throat...

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