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Session 2003 - 04
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Judgments - Regina v. Randall (Respondent)(On Appeal from the Court of Appeal (Criminal Division))


SESSION 2003-04
[2003] UKHL 69
on appeal from: [2003] EWCA Crim 436




Regina v. Randall (Respondent) (On Appeal from the Court of Appeal (Criminal Division))



The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Steyn

Lord Hobhouse of Woodborough

Lord Scott of Foscote

Lord Rodger of Earlsferry




Regina v. Randall (Respondent) (On Appeal from the Court of Appeal (Criminal Division))

[2003] UKHL 69


My Lords,

    1.  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,

    2.  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.

    3.  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.

    4.  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 judge sentenced him to 8 years imprisonment. Glean was acquitted.

The shape of the trial.

    5.  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.

    6.  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.

    7.  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.

    8.  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.

    9.  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.

    10.  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.

    11.  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.

    12.  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.

    13.  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.

    14.  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 defence, the antecedent history of Glean was relevant not only in relation to the truthfulness of Glean's evidence but also because the imbalance between that history and the antecedent history of Randall, in the words of Lord Morris, 'tended to show that the version put forward by one co-accused was more probable than that put forward by the other'. In most cases the situation will be governed by the fundamental principle to which Evans LJ referred in Thompson [1995] 2 Cr App R 589, at 593 but this was an unusual case in which the judge should not have directed the jury as he did in relation to the relevance of the previous offending of Glean, and the violence to which he had been a party. If, as we have held, what was said by the judge was a misdirection, it was clearly a misdirection of considerable significance to Randall's case because of the way in which his case had been presented, and that is why on 11 February 2003 we allowed this appeal and ordered that there be a re-trial."

In R v Thompson Evans LJ had cited the well known statement of Devlin J in R v Miller (1952) 36 Cr App R 169, 171 which was to the following effect:

    "The fundamental principle, equally applicable to any question that is asked by the defence as to any question that is asked by the prosecution, is that it is not normally relevant to inquire into a prisoner's previous character, and, particularly, to ask questions which tend to show that he has previously committed some criminal offence. It is not relevant because the fact that he has committed an offence on one occasion does not in any way show that he is likely to commit an offence on any subsequent occasion. Accordingly, such questions are, in general, inadmissible, not primarily for the reason that they are prejudicial, but because they are irrelevant."

The Court of Appeal therefore endorsed this principle but held that on the facts of the present case the evidence of propensity was relevant.

    15.  The Court of Appeal directed Randall to be retried. That trial is awaiting the outcome of the present appeal.

The general principles.

    16.  Before considering the issue before the House it is necessary to set out three matters which are not controversial. First, it is established practice that, subject to a judge's discretion to order separate trials in the interests of justice, those who are charged with an offence allegedly committed in a joint criminal enterprise should generally be tried in a joint trial: Lobban v The Queen [1995] 1 WLR 877, at 884 B-D. In the present case counsel for Randall did not seek an order for separate trials. Realistically, he appreciated that such an application would have been bound to fail.

    17.  Secondly, section 1(3) of the Criminal Evidence Act 1898 provides:

    "(3) A person charged in criminal proceedings who is called as a witness in the proceedings shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than the one with which he is then charged, or is of bad character, unless-

        (i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of an offence with which he is then charged; or

        (ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or the deceased victim of the alleged crime; or

        (iii) he has given evidence against any other person charged in the same proceedings."

Each accused had given evidence against the other. Each had lost the protection of section 1(3).

    18.  Thirdly, the discretionary power to exclude relevant evidence which is tendered by the prosecution, if its prejudicial effect outweighs its probative value, does not apply to the position as between co-accused. In a joint criminal trial a judge has no discretionary power at the request of one accused to exclude relevant evidence tending to support the defence of another accused: see R v Miller, supra, at 171; R v Neale (1977) 65 Cr App R 304, at 306; Lobban v The Queen, supra, at 887B-889D.

    19.  It is therefore common ground that in the present case the only issue is whether the evidence of Glean's propensity to use and threaten violence, which was placed before the jury, was relevant to the issue whether it was Randall who committed the attack on the deceased.


    20.  The theme that ran through the Crown's case and oral argument was that evidence of Glean's propensity to violence "proves nothing". Taken in isolation that is right. But relevance in cases such as the one under consideration is a more subtle concept: Cross & Tapper on Evidence, 9th ed (1999), 55-56. Article 1 of Stephen's Digest of the Law of Evidence, 12th ed (1936), explains relevance as follows:

    "any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present or future existence or non-existence of the other."

In R v Kilbourne [1973] AC 729, Lord Simon of Glaisdale put the position more simply, at p 756 D - E:

    "Evidence is relevant if it is logically probative or disprobative of some matter which requires proof . . . relevant . . . evidence is evidence which makes the matter which requires proof more or less probable."

A judge ruling on a point of admissibility involving an issue of relevance has to decide whether the evidence is capable of increasing or diminishing the probability of the existence of a fact in issue. The question of relevance is typically a matter of degree to be determined, for the most part, by common sense and experience: Keane, The Modern Law of Evidence, 5th ed (2000), at 20.

    21.  Counsel for the Crown argued that in the passage from the judgment in Miller, supra, Devlin J had enunciated the proposition that propensity never proves anything. That is a misreading of the careful and measured dictum. Devlin J merely held that such evidence is "normally" and "generally" irrelevant. And Kennedy LJ expressly adopted that general principle.

    22.  It is difficult to support a proposition that evidence of propensity can never be relevant to the issues. Postulate a joint trial involving two accused arising from an assault committed in a pub. Assume it to be clear that one of the two men committed the assault. The one man has a long list of previous convictions involving assaults in pubs. It shows him to be prone to fighting when he had consumed alcohol. The other man has an unblemished record. Relying on experience and common sense one may rhetorically ask why the propensity to violence of one man should not be deployed by the other man as part of his defence that he did not commit the assault. Surely such evidence is capable, depending on the jury's assessment of all the evidence, of making it more probable that the man with the violent disposition when he had consumed alcohol committed the assault. To rule that the jury may use the convictions in regard to his credibility but that convictions revealing his propensity to violence must otherwise be ignored is to ask the jury to put to one side their common sense and experience. It would be curious if the law compelled such an unrealistic result.

    23.  Counsel for Randall rightly pointed out that Randall might have been tried alone. In that event Randall would have wanted to deploy evidence of Glean's propensity to violence as part of his defence. Since Glean would not have been before the court the evidence could only have been admitted if it was relevant to an issue. One is then entitled to question whether in such a case the judge could have directed the jury that Glean's propensity is irrelevant to the likelihood that it was Glean rather than Randall who committed the attack. At first counsel for the Crown appeared to argue that this is a different situation. But he ultimately accepted that he must argue that in such a case too the evidence of propensity is wholly irrelevant. This preserved the consistency, if not the plausibility, of his argument.

    24.  Elsewhere in the criminal law and practice the possible relevance of the propensity of an individual is recognised. Archbold, Criminal Pleading Evidence and Practice 2003 ed, 8.244, at 1161 states:

    "Cross-examination of - typically - the investigating police officer to establish the bad character of a person who is neither a party nor a witness commonly occurs in practice. The most obvious example is in cases of homicide. Where questions as to character are put to a witness (especially if he is the defendant), the standard view is that their relevance is to credibility. The reality, however, is that where the defence to a charge of murder is self-defence and it is elicited that the deceased had a series of convictions for serious offences of violence, the relevance of this evidence is that it goes to disposition (and see R v Lee, 62 Cr App R 33, CA - evidence admitted, on charge of burglary, of bad character of persons not called who had had access to premises). If the charge were only one of wounding with intent, contrary to section 18 of the Offences against the Person Act 1861, and similar matters were put to the alleged victim, it is submitted that they should be regarded as relevant both to disposition and credibility."

This is a good example of the potential relevance of a propensity of an individual to the issues in a criminal case.

    25.  My noble and learned friend, Lord Bingham of Cornhill, also raised with counsel for the Crown the rules requiring a judge, in appropriate cases, to direct a jury that the good character of an accused is relevant not only to credibility but also to the likelihood that he would commit the offence in question: R v Vye [1993] 1 WLR 471; R v Aziz [1996] AC 41. Why then should the bad character in the form of a propensity to violence of a co-accused always be irrelevant? Acknowledging the force of the point counsel for the Crown said that this was simply one of the illogicalities of the criminal law. It is much more. The point demonstrates that the character of a co-accused, depending on the evidence, may be logically relevant.

    26.  While the case before the House does not involve similar fact evidence, the rules permitting the leading of such evidence by the Crown in certain circumstances provides some assistance. In Director of Public Prosecutions v P [1991] 2 AC 447 the House held that the essential feature of evidence under this heading is that its probative force is so great as to make it just to admit it notwithstanding that it is prejudicial to an accused in that it shows that he committed other offences. It is no answer to admitting such evidence that it is evidence of the propensity of the accused to commit certain crimes. On the contrary, that is often the very reason for admitting such evidence. While these rules are not applicable in this case their rationale illustrates that propensity to commit certain crimes may sometimes be relevant to the fact in issue.

    27.  There is, however, authority directly in point to which I must now turn. It is the decision of the Privy Council in Lowery v The Queen [1974] AC 85 on appeal from a decision of the Supreme Court of Victoria. A young girl was sadistically murdered. Lowery and King, the two accused, were present when she was murdered. The crime was committed by one or the other, or by both acting in concert. Each accused adduced evidence of the unlikelihood that he could have committed the murder. Lowery emphasised his good character and said that because of fear of King he had been unable to prevent the murder. King said that he had been under the influence of drugs and had been powerless to prevent Lowery from killing the girl. Despite Lowery's objection, counsel for King was allowed to call the evidence of a psychologist as to their respective personalities and, on that evidence, to invite the jury to conclude that it was less probable that King was the killer. They were both convicted and Lowery unsuccessfully appealed to the Supreme Court of Victoria on the ground, inter alia, that the psychologist's evidence ought not to have been admitted.

    28.  The Privy Council held that the evidence of the psychologist was relevant in support of King's case to show that his version of the facts was more probable than that put forward by the appellant. Accordingly the Privy Council dismissed the appeal. The reasons for the Board's judgment were delivered by Lord Morris of Borth-y-Gest.

    29.  Those reasons raise difficulties in two respects. The first is in regard to the observation (at 101E) that the evidence of the expert was "not related to … criminal tendencies". It is true that the evidence was tied in directly to King defending himself against the Crown's case against him. On the other hand the evidence demonstrated Lowery's potential aggressiveness. It is therefore difficult to accept the statement that the evidence did not relate to criminal tendencies. Secondly, the judgment placed emphasis on the fact that Lowery put his character in issue at 101 - 102. But there must be cases in which the propensity of one accused may be relied on by the other, irrespective of whether he has put his character in issue: Blackstone's Criminal Practice, 2003, F12.20, at 2172. Subject to these minor points, Lowery is high authority for the proposition that evidence of a co-accused's propensity may be relevant. This was demonstrated by the following passage in the judgment of the Privy Council, at p102D-G:

    "In reference to this matter the Court of Criminal Appeal said, and in their Lordships' view rightly said:

    'It is, however, established by the highest authorities that in criminal cases the Crown is precluded from leading evidence that does no more than show that the accused has a disposition or propensity or is the sort of person likely to commit the crime charged; …'

    and further:

    'It is, we think, one thing to say that such evidence is excluded when tendered by the Crown in proof of guilt, but quite another to say that it is excluded when tendered by the accused in disproof of his own guilt. We see no reason of policy or fairness which justifies or requires the exclusion of evidence relevant to prove the innocence of an accused person.'"

Lowery is therefore precedent for the view that, in the circumstances of the present case, the propensity to violence of a co-accused may be relevant to the issues between the Crown and the accused tendering such evidence.

    30.  On the material point Lowery has been followed by the Court of Appeal in R v Bracewell, 68 Cr App R 44. Whatever doubts exist about the admissibility of expert evidence on propensity falls beyond the scope of my opinion: compare R v Turner [1975] QB 834.

    31.  Not surprisingly there are decisions on the other side of the line to which counsel for the Crown drew attention. A good illustration is R v Neale, 65 Cr App R 304. Neale and Burr were jointly charged with arson and manslaughter. Counsel for Neale wanted to adduce evidence, either by cross-examining prosecution witnesses or leading evidence himself, that Burr had admitted that he had started fires himself on four other occasions. The Court of Appeal upheld the ruling of the trial judge that the evidence was irrelevant and therefore inadmissible. Scarman LJ observed (at 306):

    "The view that he took was that this was evidence of propensity or disposition only, and contained nothing which bore upon the defence which was that the applicant was elsewhere and did not therefore do it. We have come to the conclusion that the learned judge was right and that it really is, in the circumstances of this case, a non sequitur to deduce from the existence of a propensity in Burr to raise fires that Neale was not there or participating when this fire, which did the damage and caused the death, was raised. Mr Hillman really revealed or exposed the logical fallacy in his argument, when in the course of a succinct and extremely well developed submission he submitted that evidence of Burr's propensity to commit wanton and unaided arson was needed in order to support the defence that the applicant Neale was not there at the time the fire was raised. In our judgment this is a non sequitur."

Later Scarman LJ continued:

    "There is a clear general principle, that, in general, evidence of propensity to commit a crime is not evidence that the man with that propensity committed the crime on the particular occasion, but of course in the present case the logical gap is greater. Hence the relevance of the evidence has to be borne in mind by reference to the defence, which was, 'I was not there.'"

One wonders how Neale would have been decided if the accused had admitted that he was on the scene. In any event, the case appears to me to be very much a borderline decision.