When the prosecution relies on a defendant’s earlier misconduct to show a propensity to behave in a particular way, the jury must be sure that the propensity itself has been proved. It need not, however, decide each past allegation in isolation and find every one proved beyond reasonable doubt. Angeline Mitchell’s conviction for murder was nevertheless properly quashed, because the trial judge had not directed the jury adequately on that question.
The killing and the trial
Ms Mitchell fatally stabbed her former partner. At her murder trial the prosecution relied on earlier incidents involving knives as evidence of a propensity relevant to the charge.
She admitted stabbing him but disputed the circumstances and the intent required for murder.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
On 20 October 2010 a jury at Belfast Crown Court convicted her of murder.
The earlier incidents
The prosecution was allowed to introduce evidence of earlier misconduct which had not resulted in any conviction. Its purpose was to show a propensity, meaning a tendency, to use knives to threaten and attack others. Bad character evidence is evidence of misconduct other than the offence charged. Under the Criminal Justice (Evidence) (Northern Ireland) Order 2004 it is admissible only through specified routes. Article 6(1)(d) allows it where it is relevant to an important issue between the defendant and the prosecution. Article 8 includes, as such an issue, a propensity to commit offences of the kind charged, unless that propensity would make guilt no more likely.
The jury heard agreed statements about two earlier incidents. Ms Mitchell disputed the allegations when she gave evidence.
Despite having authorised the agreed statements, Ms Mitchell did not accept in evidence that the events had happened as described. The judge told the jury that the evidence might or might not help, that they could take it into account or leave it out, and that they must not assume from those events that she was guilty of murder or had the necessary intent. He did not tell them whether they had to be sure the evidence was true, or sure that it established the propensity alleged. Counsel did not ask for such a direction.
The appeal and the question for the Supreme Court
More than three years later, Maguire J gave leave to appeal on one ground: that the judge had failed to direct the jury properly on the purpose of the bad character evidence, or on the standard to which they had to be satisfied before taking it into account. The Court of Appeal allowed the appeal on that ground, quashed the conviction and ordered a retrial. Gillen LJ adopted a statement in Archbold that, where disputed non-conviction evidence is used to establish propensity, the jury must be directed not to rely on it unless sure of its truth. The Court of Appeal certified whether the prosecution must prove such allegations beyond reasonable doubt before the jury may take them into account in deciding guilt.
The retrial took place in April 2016. Ms Mitchell pleaded not guilty to murder on the ground of diminished responsibility and guilty to manslaughter. She was acquitted of murder and sentenced to ten years’ imprisonment.
Propensity and the individual allegations
Lord Kerr, with whom Lord Clarke, Lord Hughes, Lord Toulson and Lord Hodge agreed, said that the Archbold statement failed to separate two questions: whether the facts of each incident were true, and whether a propensity existed. Ms Mitchell argued that, before the 2004 Order, disputed bad character had to be proved beyond reasonable doubt and that the Order had preserved that approach. The prosecution argued that propensity evidence should not be isolated from the rest of the evidence, and that the Order did not require each incident to be proved beyond reasonable doubt.
Lord Kerr held that the common law had contained no clear rule requiring every disputed similar-fact allegation to be proved beyond reasonable doubt. The Order abolished the old admissibility rules and allows evidence of a mere propensity, but it is silent on the standard of proof. That silence does not require every incident to be proved separately. Nor does it mean that propensity may be used without itself being proved to the ordinary criminal standard.
The jury’s question is whether they are sure that the propensity has been proved. Where only one earlier incident is relied on, being sure of the propensity may require being sure that the incident happened as alleged, because otherwise there is no basis for it. Where several incidents are relied on, they should be considered together. The improbability of several similar allegations all being false, and the support which similar incidents may give one another, can properly inform that decision. Each item should be examined, but propensity is decided on the evidence as a whole, not by asking whether every incident has been proved in isolation. Jurors need not be unanimous about propensity, but a juror who takes it into account must be sure that it has been proved.
Propensity is at most incidental. It is not evidence of the events charged, and it cannot by itself establish guilt or replace evidence of involvement in the crime. The jury should focus on the offence charged and be reminded that the defendant is not on trial for the earlier allegations. Article 6(3) also requires the judge to exclude bad character evidence where its admission would adversely affect the fairness of the trial. That can result from the sheer weight of disputed evidence about uncharged allegations, even if the jury will later consider propensity cumulatively.
Application to Ms Mitchell
The Supreme Court treated the evidence as plainly admissible under article 6(1)(d). Ms Mitchell did not contend that it had been wrongly admitted. The defect was the direction. The judge had not explained how the jury should decide whether propensity had been proved. For that reason the conviction was unsafe. Lord Kerr did not agree with the Court of Appeal so far as it required each incident itself to be proved to the criminal standard. He also said that Bench Book directions which might suggest that every propensity allegation must be found true before it can be considered were misconceived.
Verdict: The Supreme Court unanimously dismissed the prosecution’s appeal. The original murder conviction remained quashed because the jury had not been properly directed on proof of propensity. The retrial had already ended with an acquittal of murder and a guilty plea to manslaughter.
