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Delivering the unanimous judgment of the five-judge Court, Lord Kerr held that bad character evidence showing propensity could not establish guilt on its own, and that the trial judge failed to give adequate directions to the jury in this regard.

Belfast Crown Court

On 20 October 2010 in Belfast Crown Court, Angeline Mitchell was convicted of the murder of her former partner Anthony Robin.

At the trial, she did not dispute that she had stabbed Mr Robin, but said she had acted in self-defence, that she had been provoked, and that she did not have the intention to kill or cause him serious harm.

The prosecution applied to adduce evidence of Ms Mitchell’s previous bad character for the purpose of showing that she had a propensity to use knives in order to threaten and attack others. The evidence related to two incidents in 2003 and 2007 in which she was said to have threatened and stabbed others with knives, but had not resulted in a conviction.

The judge directed the jury to take the evidence into account or leave it out of account as appropriate, but not to make any assumptions based on it as to Ms Mitchell’s guilt. Notably, the judge did not direct the jury on whether they were required to be satisfied of the truth of the evidence, nor did he indicate to the jury that they had to be satisfied that the bad character evidence established Ms Mitchell’s propensity to use knives to threaten or attack.

On appeal, Ms Mitchell argued that the trial judge failed to direct the jury properly on the purpose of the bad character evidence, or the standard of proof to which the jury had to be satisfied before they could take it into account. The Court of Appeal allowed her appeal, quashed the conviction, and ordered a re-trial.

The Supreme Court

The prosecution appealed to the Supreme Court against the quashing of the murder conviction, questioning whether it was necessary, relying on non-conviction bad character evidence on the issue of propensity, to prove the allegations beyond reasonable doubt before the jury could take them into account in determining whether the defendant was guilty or not.

The prosecution argued that evidence in relation to propensity did not call for any special examination by the jury – and that in particular, “it should not be placed in a special compartment requiring consideration in isolation from other evidence in the case”.

Furthermore, it was argued that “all relevant evidence should be assessed by the jury so as to allow them to determine whether they had been brought to the point of conviction of the defendant’s guilt. It was inimical to that fundamental aspect of jury trial that a particular issue be segregated from the generality of the evidence and a pre-emptive decision be made in relation to that issue, before the question of the guilt or innocence of the accused was tackled”.

Counsel for Ms Mitchell argued that facts supporting the claim that she had a particular propensity had to be proved beyond reasonable doubt, and it was inconceivable that a jury could have reasonable doubt as to the accuracy or veracity of the evidence said to underpin such a propensity, and accept that evidence as sufficient to establish its presence.

The Criminal Justice Order

The law before the enactment of the Criminal Justice (Evidence) (NI) Order 2004 was that the prosecution was required to prove to the criminal standard the truth and accuracy of evidence said to constitute similar facts or propensity.

The 2004 Order abolished the common law rules governing the admissibility in criminal proceedings of evidence of bad character, and significantly expanded the circumstances in which bad character evidence could be admitted.

Mere propensity to commit offences of the kind charged are now admissible, which may be proved by convictions for offences of the same description or category, but also by other evidence, such as that of complainants or observers, or by past admissions where there has not been a conviction.

The difficulty in Ms Mitchell’s case was that the legislation concerning the admission of bad character evidence is silent on the question of whether that evidence must meet the requirement of proof beyond reasonable doubt before it can be taken into account.

Conclusion

In summing up, Lord Kerr acknowledged a distinction between proof of a propensity and the individual underlying facts said to establish that a propensity exists; the proper issue for the jury was whether they were sure, beyond reasonable doubt, that the propensity had been proven.

Lord Kerr emphasised that propensity could not alone establish guilt, and that the trial judge failed to give adequate directions as to how the question of propensity should be approached by the jury, therefore the conviction was unsafe and had been properly quashed