UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Dévante Gravesande-Smith and Rebecca Khan (Matrix)

Propensity evidence – standard of proof – non-conviction propensity evidence

In a judgment handed down on 19th October 2016 by Lord Kerr, the Supreme Court considered the correct approach to directing a jury on the issue of propensity evidence based on misconduct that has not resulted in convictions or findings of guilt.

Background

On the 20 October 2010, Ms Mitchell was convicted of murder in the Crown Court at Belfast. It was accepted that Ms Mitchell had obtained a knife and stabbed her partner, Mr Robin. At trial, Ms Mitchell claimed that she had acted in self-defence, had been provoked and did not have the requisite intention for murder.

By a combination of agreement and ruling by the trial judge, evidence of the Defendant’s bad character was admitted for the purpose of showing a propensity to use knives in order to threaten and attack others. None of those 7 incidents had resulted in a conviction. During the course of the trial Ms Mitchell denied that the incidents had happened, or had happened in the way alleged.

The trial judge did not direct the jury on whether they needed to be satisfied as to the truth of the evidence or whether the evidence established the particular propensity.

Court of Appeal

The Court of Appeal (N. Ireland) quashed the conviction and a re-trial was ordered.

Gillen LJ, giving judgement, indicated that the correct position was as stated in Archbold, namely that where non-conviction evidence was relied upon to establish propensity, the jury must be directed not to rely on it unless sure of its truth.

The question for the Supreme Court

On appeal, the Supreme Court identified the issue as:

Should the jury be directed that they have to be satisfied beyond reasonable doubt of the veracity and accuracy of the individual facts?

or

Alternatively, is the real issue not this: what requires to be proved is that the defendant did have a propensity?

On examining the authorities relied upon in the Court of Appeal (R v Ngyuen [2008] EWCA Crim 585 and R v O’Dowd [2009] EWCA Crim 905), the Court did not consider that there was any clear definitive statement on the issue now raised.

The Appellant argued that evidence in relation to propensity did not call for any special examination by the jury and should not be considered in isolation from other evidence. Further, there was nothing in the Criminal Justice (Evidence) (Northern Ireland) Order 2004 (an exact mirror of the bad character provisions in the Criminal Justice Act 2003) that required incidents relied on to establish propensity to be proved beyond reasonable doubt.

The Respondent argued that prior to the 2004 Order, disputed bad character evidence had to be proved beyond reasonable doubt. This principle had not been abolished by that order and it was a function of the jury to evaluate the evidence of bad character in the conventional way.

The correct approach

The Supreme Court unanimously dismissed the appeal, agreeing that the failure to direct the jury rendered the conviction unsafe. However, the Supreme Court did not agree with the interpretation of the Court of Appeal that each incident capable of demonstrating propensity was required to be proved to the criminal standard.

In particular, in cases where several incidents were relied upon to show propensity, it was not necessary to:

 prove beyond reasonable doubt each incident had happened in the precise way alleged; or

 consider each individual incident in isolation [paragraph 39].

The proper issue was whether the jury were sure that propensity had been proved.

In reaching this decision, they were not required to be convinced of the truth and accuracy of each aspect of those instances as alleged, but were entitled to and should consider propensity evidence in the round [para 43].

The Court noted two reasons for favouring this approach:

 the improbability of a number of similar incidents being false is a consideration that should naturally inform a jury’s deliberation; and

 obvious similarities in various incidents may constitute corroboration for each other.

Conclusions

A jury should be directed that, if they are to take propensity into account, they should be sure that it has been proved. This exercise does not require each item to be proved to the criminal standard, but that all material touching on the issue should be considered when reaching a conclusion as to whether they are sure propensity has been proved [para 44].

Of note, the Court also stressed the following:

The jury is not being asked to return a verdict on previous misconduct and should be reminded of that [para 53];

Propensity is at most, an incidental issue. It cannot be regarded as a satisfactory substitute for direct evidence. Excessive recourse to past incidents may skew the trial and distract attention from the central issues [paras 53 and 55]. It was noted that O’Dowd, a trial lasting 6 ½ months, revealed the practical difficulties of dealing with each individual instance.

Finally, on the decision in Ngyuen, the Court stated that it was significant that it related to a single previous incident. It was not surprising that that there was a need to be convinced that incidents had taken place as alleged in those circumstances, otherwise there would be no factual basis to find that propensity existed [para 42].

Originally written in 2KBW’s Winter Newsletter which can be downloaded here.