| CRIME — Evidence — Character — Defendant’s bad character —Evidence admitted to show propensity — Cross-admissibility of evidence relating to two or more counts in same indictment — Appropriate direction to jury — Criminal Justice Act 2003, ss 98, 101(1)(d)
R v Freeman; R v Crawford [2008] EWCA Crim 1863; [2008] WLR (D) 287
CA: Latham LJ, Grigson and Macduff JJ: 8 August 2008
Some care was required in directing a jury when approaching the cross-admissibility of bad character evidence.
The Court of Appeal (Criminal Division) so stated when dismissing: (i) the appeal of Daniel Robert Wallace Freeman from conviction at the Crown Court at Guildford on 10 October 2007 of three counts of indecent assault and two counts of sexual assault of a child; and (ii) the appeal of Jerome Crawford against conviction at the Crown Court at Snaresbrook on 24 April 2008 of two counts of robbery. In Freeman’s case the judge had directed the jury as to how they should treat the evidence of each of the complainants when considering the evidence of the others. In Crawford’s case the Crown had submitted that the methodology in certain earlier convictions was virtually identical and the robberies formed part of a series of similar offences; and the recorder had held that the evidence in relation to each robbery was admissible in respect of the other, and directed the jury accordingly. The grounds of appeal in each case were, inter alia, that the directions given to the jury were insufficient as to the cross-admissibility of such character evidence.
LATHAM LJ, giving the reserved judgment of the court, said that when it was submitted that evidence in relation to one count was admissible in relation to another it might not always be helpful to concentrate on the concept of propensity when the nature of the evidence was such that, in itself, it was capable of being probative in relation to another count, viz in the sense that it made it more likely either that the offence was committed (see R v Chopra [2007] 1 Cr App R 225) or that the defendant being considered had committed the offence: see R v Wallace [2008] 1 WLR 572. In some of the judgments since R v Hanson [2005] 1 WLR 3169 the impression might have been given that the jury, in its decision-making process in such cross-admissibility cases, should first determine whether it was satisfied on the evidence in relation to one of the counts of the defendant’s guilt before it could move on to using the evidence in relation to that count in dealing with any other count on the indictment: a good example was R v S [2008] EWCA Crim 544. However, that was too restrictive an approach. Whilst the jury had to be reminded that it had to reach a verdict on each count separately, it was entitled, in determining guilt in respect of any count, to have regard to the evidence in regard to any other count, or any other bad character evidence if that evidence were admissible and relevant in the way now explained. It might be that in some cases the jury would find it easier to decide the guilt of a defendant on the evidence relating to that count alone; but that did not mean that it could not, in other cases, use the evidence in relation to the other count or counts in order to help it decide on the defendant’s guilt in respect of the count that it was considering. To do otherwise would fail to give proper effect to the decision on admissibility. However, in the instant cases there was nothing to disturb the convictions.
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