Single-Act Propensity

Publication Date01 April 2010
DOI10.1350/jcla.2010.74.2.625
AuthorRoderick Munday
SubjectArticle
Single-act Propensity
Roderick Munday*
Abstract The Criminal Justice Act 2003 expanded the range of situations
in which evidence of defendants’ bad character can become admissible in
criminal trials. In R v Hanson (2005), in the f‌irst appeals brought under the
new legislation, the Court of Appeal supplied general guidance on how
trial courts were to construe the principal provisions. In relation to gate-
way (d) the court declared: ‘there is no minimum number of events
necessary to demonstrate’ an accused's propensity. A single item of mis-
conduct might therefore suff‌ice. When the Act f‌irst came into force, some
prosecutors undoubtedly sought to exploit the bad character provisions to
the full. This article reviews one, admittedly, artif‌icial category of cases,
where the Crown has sought to adduce only single acts of misconduct, in
order to derive some idea of how expansively or restrictively the courts,
and more especially the Court of Appeal, in practice interpret the bad
character provisions.
Keywords Bad character evidence; Propensity; Single act of mis-
conduct; Gateways (d) and (g)
The single recent reform that, incontestably, has done most to transform
the rules governing the admission of evidence of bad character in
criminal trials is s. 101(1)(d) of the Criminal Justice Act 2003, aliter
‘gateway (d)’. This provision states:
[T]he defendant’s bad character is admissible if, but only if . . . it is relevant
to an important matter in issue between the defendant and the
prosecution.1
According to s. 103(1)(a), one such matter in issue between defendant
and prosecution is:
whether the defendant has a propensity to commit offences of the kind with
which he is charged.
Although the species of ‘matter in issue’ the Crown most frequently
invokes, ‘propensity’ is not further def‌ined in the Act. Nor does the Act
attempt to prescribe how much bad character evidence is required in
order to establish relevant ‘propensity’ in any given defendant—or, for
that matter, to address any other ‘important matter in issue’ raised in a
given case. It is left to the court to determine whether the proffered
evidence is capable of so doing, and to the tribunal of fact to decide
* Fellow of Peterhouse Cambridge.
1 Emphasis added. Section 112, perhaps unnecessarily, points up: ‘“important matter”
means a matter of substantial importance in the context of the case as a whole’.
127The Journal of Criminal Law (2010) 74 JCL 127–144
doi:10.1350/jcla.2010.74.2.625
whether in fact it does.2As often as not, propensity evidence tendered
by the prosecution will take the form of previous convictions,3and these
will regularly be offences either of the same description or of the same
category, as def‌ined in the statute.4
From the outset, via the medium of Rose LJs tour d’horizon in R v
Hanson5the f‌irst appellate decision to analyse the bad character provi-
sions, the Court of Appeal busied itself surveying the Criminal Justice
Acts elastic concepts. To this end, Rose LJ advanced a number of general
propositions. In this article, I shall focus upon one of themthe phe-
nomenon I shall term single-act propensity.
1. Inferring ‘propensity’ from single acts of misconduct
Save to the extent that s. 101(3) states that:
[t]he court must not admit evidence under [s. 101(1)(d)] . . . 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,6
and that s. 103(3) provides that propensity evidence ought not to be
admitted
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 [the
defendants] case,
the Criminal Justice Act 2003 provides no further indication of what sort
of, or what minimum quantity of, evidence will suff‌ice to demonstrate a
propensity, or otherwise to illuminate any important matter in issue
between the defendant and the prosecution.
In Hanson, Rose LJ advanced a cluster of broad-brushstroke proposi-
tions, intended to guide courts employment of gateway (d). For in-
stance, he proposed the three questions that a court needs to ask itself
before admitting such evidence;7he warned that the admission of old
convictions, sharing no special feature with the offence charged, was
2Propensity is a slippery concept. In one attempt to analyse the logical structure of
the propensity inference derived from other misconduct, it was said that what is
required is (i) suff‌icient linkage evidence, identifying the defendant as the
individual who committed the other misconduct; (ii) the other misconduct and the
charged allegation must share such a degree of singularity as to suggest that the
defendant committed both deeds; and (iii) the strength of the propensity inference
has to be assessed in the context of the other evidence in the case: D. Hamer, The
Structure and Strength of the Propensity Inference: Singularity, Linkage and Other
Evidence (2003) 29 Monash Univ LR 137. These propositions are not exactly
controversial. But neither are their variable properties in doubt.
3 Although such evidence will almost invariably take the form of previous convictions,
occasionally convictions subsequent to the offence charged may be admissible to
prove a relevant propensity: Rv Adenusi [2006] EWCA Crim 1059, (2007) 171 JP
169.
4 See Criminal Justice Act 2003, s. 103(2) and (4).
6 Section 101(4) adds that in exercising this discretion the court must have regard,
in particular, to the length of time between the matters to which that evidence
relates and the matters which form the subject of the offence charged.
The Journal of Criminal Law
128

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