Leathem & Anor v R [2017] EWCA Crim 42

Case No 201601531/201601626[2017] EWCA Crim 42
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT STAFFORD
HHJ EADES
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/02/2017
Before
LORD JUSTICE McCOMBEMR JUSTICE HADDON-CAVETHE RECORDER OF YORK(HIS HONOUR JUDGE BATTY QC)(sitting as a Judge of the Court of Appeal (Criminal Division))
Between
(1) Aaron LEATHEMAppellants(2) James MALLETTAppellantREGINARespondent
Mr A Jones (Solicitor-Advocate of Cartwright King Solicitors) for Appellant (1) andMr P Brunt (instructed by Vesey & Clarke) for Appellant (2)Mr H Sandhu (instructed by The Crown) for RespondentHearing Hearing date : 26 th January 2017
JudgmentMr Justice Haddon-Cave :Introduction
[1]On 3rd March 2016, in the Crown Court at Stafford, after a trial before HHJ Eades and a jury, the appellants, Aaron Leathem and James Mallett, were convicted of an offence of conspiracy to burgle (count 6 on the indictment in question).[2]On 19th May 2016, Leathem was sentenced by HHJ Eades for that offence to 3 years’ imprisonment. That sentence was ordered to be served consecutively to concurrent sentences totalling 12½ years imposed in respect of the following offences for which he had earlier pleaded guilty in the same Crown Court, firstly, before The Recorder of Stafford (HHJ Tonking) on 26th September 2014 and, secondly, before HHJ Gosling on 17th August 2015: namely, conspiracy to rob, (count 1), conspiracy to burgle (count 2) and conspiracy to steal (count 3). The total sentence therefore passed in respect of Leathem was 15 ½ years’ imprisonment. That sentence was increased to a total of 18 years’ imprisonment on 28th October 2016 on a reference to this court by HM Attorney-General. On that occasion, making allowances for totality, the court (Lloyd-Jones LJ, Jeremy Baker J and The Recorder of Preston) substituted a consecutive sentence of 2 years’ imprisonment (consecutive) for the 3 year sentence imposed for the offence (count 6) with which we are concerned.[3]Mallett was also sentenced by HHJ Eades to 3 years’ imprisonment in respect of count 6 on 19th May 2016.[4]In November 2015, in a trial also conducted before HHJ Gosling, the jury had been unable to agree verdicts (for either appellant) in respect of the offence of which these two appellants were later convicted on the re-trial before HHJ HHJ Eades.[5]Both appellants now appeal against their conviction on count 6 at the second trial by leave of the single judge. In Mallett’s case the leave to appeal granted to him is limited to the same ground upon which Leathem has been granted leave to appeal, namely leave to challenge the judge’s decision that evidence of Leathem’s previous convictions was admissible under s.101(1)(c) of the Criminal Justice Act (CJA) 2003. The single judge refused Mallett leave to appeal on an additional ground relating to an aspect of the summing up which he now renews before us. We deal with these separately below.

The Facts

[6]The facts giving rise to this somewhat complicated procedural picture were as follows.

Indictment No. 3

[7]Between 9th March 2013 and 9th October 2013, Leathem and Edwards together with others, conspired to rob the Superbowl Leisure complex in Nuneaton, Morrisons supermarket in Rugeley, Co-op store in Lichfield and HSBC bank in Sutton Coldfield, with a view to substantial financial gain. Those involved wore balaclavas, wielded crow-bars and tied people up. Leathem and others also conspired to burgle the homes of the owners/drivers of high value vehicles to use in the robberies.

Indictment No. 5

[8]Between 4th December 2013 and 27th June 2014, whilst on bail for the offences committed between March and October 2013, Leathem together with others conspired to rob supermarkets, convenience stores and a public house using balaclavas, crow-bars and high value vehicles obtained during the course of domestic burglaries. They also conspired to steal vehicle registration plates to be used in an attempt to avoid detection.[9]The subject matter of the appeal related to a discovery which the police made when they searched Leathem’s home address on 4th June 2014 and found a hand drawn floorplan of a house in Chelmsley Wood belonging to a 91 year-old man called Steven Hastings. Mr Hastings held a firearms licence and the location of his firearms cabinet was clearly marked on the floorplan. Mallett’s fingerprints were found on the floorplan and it was established that he had drawn it. Mallett had visited Mr Hastings’ property on 11th April 2014 and then telephoned Leathem the following day. Mallett and Leathem were both arrested and interviewed. Leathem declined to answer any questions. Mallett said that after visting Mr Hastings’ property in his capacity as a gas engineer, he had drawn the floorplan out of ‘concern’ for Mr Hastings. However, he had forgotten to raise his concerns with either Mr Hastings’ family or the police.[10]The prosecution case was that Mallett had given Leathem the floorplan as part of an agreement to burgle Mr Hasting’s house and steal his firearms.[11]The defence case for Leathem was that there was no conspiracy to burgle. He relied on the fact that there was no direct evidence as to when the floorplan entered his house or that he was aware of their existence.[12]The defence case for Mallett was that there was no conspiracy to burgle; he had drawn the floorplans out of concern for Mr Hastings. He believed the floorplans had fallen out of his workbook whilst visiting Leathem but he was unable to explain why Leathem had kept them.[13]The issue for the jury was whether Mallett had given the floorplans to Leathem for the purpose of forming an agreement to burgle Mr Hastings’ house in order to take the firearms and whether there had been a crystallised agreement to commit burglary.

The evidence at the trial

[14]The Crown did not call any live evidence. The Crown relied principally upon the finding of the plan of Mallett’s composition in a “George Foreman” grill appliance at Leathem’s home, a notebook referring to Mr Hastings’ guns, a telephone schedule setting out communication between Leathem and Mallett at the relevant times (see further below). The Crown also relied upon ‘bad character’ evidence in respect of Leathem, admitted into evidence by the judge on the Crown’s application. It is the case of both appellants on these appeals that the judge erred in deciding to admit the ‘bad character’ evidence.[15]Leathem had not answered questions in interview with the police following his arrest and did not give evidence at the trial. Mallett’s evidence in summary was this: He said that, at all material times, he was working as a gas engineer. On 11th April 2014, he was sent to a house in Chelmsley Wood to service the boiler. He got chatting to the owner, Mr Hastings, who showed him around the house and the grounds. This included Mr Hastings showing him his firearms cabinet which was in a cupboard. Mallett said that in light of the fact that he had recently been burgled, he was concerned for Mr Hastings as the cupboard was open and the firing pins were all in place in the guns. So, when he took his lunch break he thought about whether he should tell the police or Mr Hastings’ son about the firearms cabinet and he drew two floorplans of the house whilst it was still fresh in his memory. He put the floorplans inside the front of his workbook for future reference.[16]He said that he used to visit his cousin, Aaron Leathem, several times per week and he believed that the floorplans must have fallen out of his workbook on one of his visits. He was unable to explain why Leathem had kept the floorplans or why they were in the “George Foreman” grill. He accepted that the telephone schedule was correct.[17]We return to the evidence at the trial in more detail below.

The ‘bad character’ application

[18]The Crown applied to adduce into evidence the previous convictions of Leathem on his guilty pleas before HHJ Tonking QC and HHJ Gosling. The Crown also applied at the first trial on the present charge to adduce Leathem’s ‘bad character’ evidence before HHJ Gosling. The application was founded upon CJA 2003 s.101(c) (“important explanatory evidence”) and (d) (“evidence relevant to a matter in issue between the defendant and the prosecution”), including (for the purposes of (d)) the question whether the defendant has a “propensity” to commit offences of the type with which he is charged). HHJ Gosling declined to admit the evidence at the first trial. We have no transcript of his ruling, but we are told that he considered that the admission of the evidence would be “overwhelmingly prejudicial” to a fair trial.[19]The Crown made a similar application in the re-trial before HHJ Eades. There is some discrepancy on the papers before us as to precisely how the Crown application was presented, both initially and ultimately. For Mallett, it is said that, before HHJ Eades, the Crown sought to introduce the evidence only under gateway (d), but subsequently expanded this, at the Judge’s invitation to gateway (c). For Leathem, it is said that the Crown made the application under both gateways as at the first trial. Certainly, the Crown’s written application dated 28th February 2016 appears only to refer to gateway (d) and was confined to an application to admit evidence of Leathem’s conspiracy to burgle offences, not the conspiracies to rob.[20]It is clear from the Judge’s ruling on the point, however, that the matter was put, and ultimately argued, under both gateways and the judge’s final ruling on gateway (d) seems to show that conspiracies to commit robbery had also been put forward for admission into evidence.

Defence submissions

[21]For Leathem, the application was resisted on a number of grounds, set out in Mr Jones’ written advice and grounds of appeal, summarised as follows: i) the convictions did not establish a propensity to commit burglaries to steal firearms and did not therefore fall under CJA 2003 s.101(1)(d) and the evidence does not amount to “important explanatory evidence” under s.101(1)(c) (as defined in s.102); ii) this would be a major departure by Mr Leathem in his weapon of choice for offending and Mr Mallett was not a party to the other conspiracies in which Mr Leathem took part; iii) the evidence in the case would not be difficult or impossible to understand without knowledge of the convictions; at the first trial the convictions were not introduced and the jury understood the evidence, but failed to reach a verdict; iv) the value of the bad character evidence in understanding the whole case was not substantial and to adduce it would be “overwhelmingly prejudicial” to a fair trial (as ruled by HHJ Gosling); v) admission of bad character as propensity would have such an adverse effect on the fairness of the proceedings that the court must not admit it (s.101(3)); vi) if the bad character was adduced under s.101(1)(c) only, there would be an overwhelming risk that the jury would use it as propensity and such a risk could not be cured by a direction of law; vii) bad character should not be introduced under s.101(1)(c) where the intended use was to show propensity (R v Davis (Robert) (2009) Cr App R.17); viii) the real issue for the jury was whether the defendants entered into an agreement to burgle the premises and steal the weapons, not the purpose to which the weapons may be subsequently used;[22]For Mallett, it was submitted that the test for “important explanatory evidence” under s.101(1)(c) was not satisfied and, pursuant to PACE 1984 s.78, the prejudicial effect on the trial of Mallett outweighed the probative value of the co-defendant’s convictions. Judge’s ruling[23]The Judge acceded to the Crown’s application under s.101(1)(c) in respect of all of the convictions. The judge rejected the application under s.101(1)(d). In his ruling, the judge addressed the evidence before the jury at the stage at which the application was made in these terms:
“The jury, at the moment, have in the context of the evidential scenario I have described, no knowledge of Leathem at all. Therefore, all they know is that a gasfitter was employed at a given address to carry out repairs to a gas fixture. In the course of that, he discovered certain information like firearms, and then passed it on to another person about whom they know absolutely nothing. In that context, the defence submission that I imagine Mr Brunt is going to put forward at some stage to the jury, if it is left as it is, that this was an unformed agreement and it was simply the passing on of information is, on the face of it, difficult to rebut.”
[24]He continued as follows:
“What, in my view, is important here is, firstly, whether the information was transferred in the way the prosecution allege and it seems to me that it is more likely than not at the moment that a jury would construe that it was conveyed in the way the prosecution assert and, secondly, whether the transference of that information was part of a crystallised agreement to steal the firearms rather than simply the passing of information. The issue of crystallisation, in my view, depends in part upon the context of what each of the defendants knew and what each was about at the relevant time. In this context, therefore, what Leathem was actively involved in is potentially of great relevance.”
[25]From this flowed the judge’s conclusion on the issue:
“In my view, that evidence is capable of demonstrating a) that Mallet was passing potentially valuable information to an active and serious crime group of which Leathem was a member and b) that this information was of value to Leathem and it explains or is capable of explaining why it was that he chose to keep that information at his home address, hidden inside the George Foreman griller and c) it is capable of rebutting Mallet’s defence that he was acting in a publicly spirited and altruistic way when he came to draw his plans in that his motive was to alert either the police or the householder’s son and, secondly, that the pages that found their way into Leathem’s grill were innocent, as opposed to being a case of him deliberately passing the information onwards. If you tie all those together, it seems to me that this evidence is capable of proving -- it is, of course, not for me to decide whether it does or doesn’t -- that there was a crystallised contingent agreement to steal the firearms in the course of a burglary if the perceived nature of those firearms arms arose.”

The judge continued:

“My view is that without the evidence that the prosecution are seeking to put in about Leathem’s activities at the time, both immediately before, during and after the alleged conspiracy, the jury would only have a partial and potentially grossly misleading picture of what was afoot. In my view, it is important for me to emphasise that this criminal activity that the Crown are seeking to place before the jury is activity that was actually current and, as I say, covers in brackets the time of the alleged conspiracy and that it is not simply referred back to some past conduct. In other words, it places the conspiracy that the jury are having to consider into a specific context of Leathem’s then current activity. In my view, without this evidence the jury would find it difficult properly to understand the other evidence that they have, as I have already explained, and that its value for understanding the case as a whole is substantial. Therefore, I am prepared to grant leave to the prosecution under (c) to place this evidence in front of the jury.”
[27]Leathem’s previous convictions were then put before the jury and appear in the “Further Agreed Facts” that went to the jury following the judge’s ruling.

Grounds of appeal

[28]It is argued in the present appeal, on behalf of both appellants, that the judge was wrong to accede to the application to admit Leathem’s ‘bad character’ evidence. The main arguments advanced by the Appellants in this appeal included the following.[29]First, it was argued by Mr Brunt on behalf of Mallett, that a reasonable judge should have concluded that it was possible for a jury properly to understand the case, i.e. “the other evidence in the case”, without knowing of Leathem’s antecedents; the proof of that is that HHJ Gosling, a reasonable judge, considered that so. The argument was put rather differently by Mr Jones on behalf of Leathem, who argued simply that the judge failed to identify what other evidence the jury would find “difficult or impossible to understand” (see s.102 of the Act).[30]Second, it was submitted that the admission of the evidence was, in effect, an illegitimate use of gateway (c) in order to show Leathem’s “propensity” to commit offences of the type with which he was charged (c.f.Archbold 2017, paragraph 13-36). The effect was to undermine the protection afforded to a defendant by s.101(3), which does not apply to gateway (c).[31]Third, it was argued that the evidence created an “overwhelming prejudice” adverse to both defendants, as HHJ Gosling was said to have found at the first trial. Analysis Prosecution evidence

Analysis

[32]Initially, the Jury had the following evidence put before them in support of the Prosecution case of conspiracy between Mr Mallett and Mr Leathem to burgle Mr Hastings’ house and steal his guns:(i) a manuscript document comprising plans of Mr Hastings’ house (“the Plan”);(ii) a page torn from a lined manuscript spiral notebook which referred to five guns in a cupboard which had two locks (“the Notebook”);(iii) evidence that Mr Hastings was old (91), infirm and vulnerable and lived in a semi-rural isolated location and had guns in a gun cabinet in the location shown in the Plan;(iv) evidence that the Plan and Notebook had been created by Mr Mallett;(v) evidence that the Plan had been found in Mr Leathem’s house in a “George Foreman” grill; and(vi) evidence of a close relationship between Mr Leathem and his cousin Mr Mallett and frequent telephone contacts between them and visits by Mr Mallett to Mr Leathem’s house during the period in question.[33]The Crown submitted that the Plan was, on its face, a ‘blue-print’ for a burglary. Plainly on its face it was. It comprised a detailed drawing of Mr Hastings’ house, its floor plan and downstairs rooms, its entrance and exit, the location of a particular cupboard in one of the rooms, the location of the house in Blackfirs Lane and the location of his son’s house. The extract from the Notebook was an equally compelling document. It recorded in manuscript as follows:
“GUNS x 5 in CABINET IN BACK MEDECINE [sic] CUPBOARD (2 locks on safe) Son lives 2 doors down”
MEDECINE [sic] CUPBOARD (2 locks on safe) Son lives 2 doors down”

MEDECINE [sic] CUPBOARD (2 locks on safe)

[34]The combination of the two read together, the Plan and the Notebook, was on its face compelling evidence against the Appellants. The Crown submitted that the Jury could draw reasonable inferences from the Plan and Notebook together with the other evidence set out above and be sure that Mallett and Mr Leathem were preparing to burgle Mr Hastings’ house and steal his guns.[35]Mallett admitted that the Plan and the Notebook were his and had been drawn and written by him. He put forward innocent explanations as to(a) why he had drawn up the Plan and the Notebook and(b) how the Plan had somehow ended up in Leathem’s house. In summary, as presaged above, Mallet said that he had drawn up the Plan because he had become ‘concerned’ for Hastings’ welfare and the Plan must have ‘slipped’ out of his notebook whilst he was visiting Leathem’s house, who he asserted he did not know that well.[36]Common sense would suggest that Mallett’s explanations for the existence of the Plan and the Notebook were highly implausible to the point of being incomprehensible. A rational Jury could have been forgiven for saying “We simply don’t understand”. His explanations raised as many questions as they answered. Why would concern for the occupier’s safety cause him to draw up what was obviously a burglary plan? How could a page from a spiral notebook fall out and end up hidden conveniently in the “George Foreman” grill in Leathem’s house? Why did the extract from the Notebook identify precisely the location of the guns and how they were locked up and where Mr Hastings’ son lived? Surely Mr Hastings’ son, who lived two doors down, would know his father kept guns and where they were located? Why were he and Mr Leathem in such regular contact if they were not close associates?

The ‘bad character’ evidence

[37]The ‘bad character’ evidence which the Crown then sought successfully to admit was particularly stark: it showed Leathem was a serious criminal operating at the time, together with a gang, to commit a series of burglaries and robberies in the Midlands. Leathem and the gang committed a spree of violent robberies wearing balaclavas and wielding crow-bars using high performance cars as getaway vehicles during various periods between March 2013 and June 2014. During the same periods, Leathem and the gang committed a series of related burglaries. The burglaries and the robberies were related because the gang needed the ‘tools of the trade’ to commit the robberies, in particular high performance cars as well as other equipment such as angle-grinders (to remove cash machines). The gang’s modus operandi was to commit burglaries in order to ‘tool up’ and garner the kit necessary to commit the robberies. Thus, as the Crown said in opening, the burglaries of homes with high performance cars were committed with the express intention that those vehicles would be used in the commission of the commercial robberies (see paragraphs 45 and 46 of Prosecution’s Opening Note for Sentence).

Application of gateway (c) (“important explanatory evidence”)

(c) (“important explanatory evidence”)

[38]Section 101 provides inter alia as follows:
“101 Defendant's bad character (1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if— … (c) it is important explanatory evidence, (d) it is relevant to an important matter in issue between the defendant and the prosecution, … … (3) The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” (1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if— … (c) it is important explanatory evidence, (d) it is relevant to an important matter in issue between the defendant and the prosecution, … … (3) The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”
[39]The term “important explanatory evidence” in gateway (c) is defined by s.102:
“102 “Important explanatory evidence”
For the purposes of section 101(1)(c) evidence is important explanatory evidence if – (a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and (b) its value for understanding the case as a whole is substantial.” (a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and (b) its value for understanding the case as a whole is substantial.” ‘Impossible or difficult to see without it’[40]In R v. Lee [2012] EWCA 316, Hughes LJ gave helpful guidance as to the application of the s.102 definition in practice. The issue in the case concerned the judge’s observations when allowing in the ‘bad character’ evidence which included “to exclude would leave a lacuna in what happened”. Hughes LJ said at paragraph [12]:
“All those observations may well be true, but none of them makes the evidence without which the other evidence in the case could properly be understood. To say that evidence fills out the picture is not the same as saying that the rest of the picture is either impossible or difficult to see without it. On the facts of this case the rest of the evidence was not difficult to see without it.”
[emphasis added][41]In our view, paraphrasing Hughes LJ’s words, it would be “impossible or difficult” for the Jury in the present case to see the rest of the picture of the case without the ‘bad character’ evidence. In particular, it would be “impossible or difficult” for the Jury to understand how and why a ‘burglary blue-print’(a) came into existence and(b) came to be hidden in Leathem’s house, without the background evidence as to Leathem’s gang’s campaign of burglary and robbery. Mallett’s explanations provided no real or rational answer for the Jury to these important questions. The Jury would, therefore, be left in difficulties without this evidence.

Important ‘background’ evidence

[42]The ‘bad character’ evidence could equally be viewed as important ‘background’ evidence. There are numerous examples in the authorities of evidence as to a defendant’s role, conduct or activities being admitted under gateway (c) as important explanatory ‘background’ evidence, viz. e.g. R v Chohan [2005] EWCA Crim 1813 (heroin dealer), R v Kessediou [2005] EWCA Crim 2931 (harassment conduct), R v MckIntosh [2006] EWCA Crim 193 (possession of a gun and behaviour causing fear) and R v Mubarak [2008] EWCA Crim 1386 (dishonest trading).[43]In the present case, the evidence as to Leathem’s active role and involvement in a gang carrying out a campaign of linked burglaries and robberies (see above) could be said to be important ‘background’ evidence admissible under s.101(1)(c) because it helped explain how and why the ‘burglary blue-print’ was drawn up and came to be hidden in Leathem’s house. There was, as Mr Sandhu for the Prosecution put it, an escalating pattern to Leathem’s robberies, both in terms of seriousness and the tools used (crow-bars and then knives) which meant that the Jury could easily infer that the obtaining of guns by stealing them from Mr Hastings’ house would further their criminal enterprise. Guns would be very valuable ‘tools’ for a criminal gang such as Leathem’s who were engaged in a spree of violent robberies but, as yet, only had the use of crow-bars and knives. The acquisition of guns would have enabled Leathem and his gang to up their game to a new level.

Defence submissions

[44]We reject, therefore, Mr Jones’ and Mr Brunt’s general submission that gateway (c) should not have been utilised by the judge. We turn to deal with their other submissions.[45]Mr Jones and Mr Brunt submitted that the Prosecution were impermissibly seeking to admit evidence of “propensity” by the back door. We reject this argument. The ‘bad character’ evidence in this case was akin to evidence of gang affiliation and activities which are regularly held to be admissible under s.101 (see R v. Awoyemi [2016] EWCA Crim 668 and R v. Garfield-Stewart [2016] Crim 447; and see generally R v. Myers [2016] AC 314 at common law). The mere fact that ‘bad character’ evidence might also be evidence of “propensity” does not de-legitimise its admissibility under gateway (c) or (d).[46]Mr Jones and Mr Brunt submitted that the probative value of the ‘bad character’ evidence was significantly outweighed by its prejudicial effect, particularly Mr Brunt emphasised in relation to Mallett. However, in our view, the evidence of Leathem’s on-going gang criminal activities in which guns would be useful is likely to have struck the jury as highly significant and probative in the context of the case. It was, in effect, the missing piece of ‘the jigsaw’, which revealed “the rest of the picture” (to paraphrase, again, Hughes LJ’s words). The trial judge was in the best position to weigh the balance the probative value of the evidence on the one hand and its prejudicial effect on the cases of Leathem and Mallett and we see no reason to interfere with his judgment. The fact that he took a different view from HHJ Gosling is not to point. He was entitled to come to the view that he did. This is one of those cases where the ‘prejudice’ of the ‘bad character’ evidence can be said to be concomitant with, or part and parcel of, its essential probative value.[47]Mr Jones and Mr Brunt further submitted that there was a ‘circularity’ in the Prosecution argument, namely that the Prosecution case for the admissibility of Leathem’s ‘bad character’ evidence under gateway (c) as “important explanatory evidence” pre-supposed knowledge on the part of Mallett of Leathem’s criminality. We reject this argument. The flaw in it is that, as we have elucidated above, the Plan and the Notebook combined with the other evidence (see above) raised serious questions which cried out for a rational and innocent explanations which was not forthcoming from either Mallett or Leathem.[48]Mr Jones and Mr Brunt also submitted that, if the Plan was so obviously a ‘burglary plan’, there was ex hypothesi no need for any further explanatory evidence. We reject this argument, which seeks to make a virtue out of a necessity. The fact that Plan was obviously a ‘burglary blue-print’ merely points to the possibility of it being used for a nefarious purpose but does not answer the important questions of how and why the Plan came into existence and came to be hidden in Leathem’s house.[49]We, therefore, reject all the Defence submissions.

Conclusion

[50]For the above reasons, in our judgment, the Judge was right to hold that the ‘bad character’ evidence was admissible under s.101(1)(c) as “important explanatory evidence”. As Mr Sandhu for the Prosecution put it, without it, the Jury would be operating in something of a vacuum without this explanatory background evidence.[51]In any event, in our view, there was nothing unsafe or unsatisfactory about this conviction. The Plan and Notebook and evidence of close collaboration between Leathem and Mallett raised an overwhelming circumstantial case which would have entitled a reasonable jury to convict them both.

Gateway (d) (“an important matter in issue”)

(d) (“an important matter in issue”)

[52]We note that there was an alternative route by which the ‘bad character’ could have been admissible and admitted, namely under gateway (d) under section 101(1)(d) as evidence relevant to “an important matter in issue” between the Prosecution and Defence. The “important matter in issue” between the Prosecution and Defence were as to how and why the Plan(a) came into existence and(b) came to be hidden in Leathem’s house. Mallett gave an innocent explanation (with Leathem remaining silent). The Prosecution gave another explanation which was a) obvious and b) non-innocent. The ‘bad character’ evidence as to Leathem’s gang activities was highly relevant to this central issue in the case between the prosecution and defence. Admissibility under s.101(1)(d) is, of course, subject to the ‘fairness’ safeguard in s.101(3). However, for the reasons given above, we would not have interfered with the judge’s ruling on this basis if he had taken this alternative route.

Mallett’s additional ground

[53]We turn to Mallett’s further proposed ground of appeal in respect of which he was refused leave to appeal by the single judge. As we have said, he renewed that application before us. The point arises out of the manner in which the indictment was framed. As originally drafted this count had been framed in the following terms:
“JAMES MALLETT and AARON EDWARD LEATHEM between 1st day of April 2014 and 5th day of June 2014 conspired together to enter as trespassers [property named] and steal therein.”
[54]On the first day of the first trial that formulation was amended to read:
“Between 1st day of April 2014 and 5th day of June 2014, AARON EDWARD LEATHEM and JAMES MALLETT conspired together and with others unknown to burgle [property named].”
[55]Mr Brunt submitted that this amendment changed the nature of the prosecution allegation to widen the ambit of the participants in the conspiracy alleged. Mr Brunt says that, in his closing address to the jury, he submitted that the Crown had set out to prove that the conspiracy was between the two appellants and others. We disagree.[56]In summing up the matter to the jury,

the judge said this:

“Now, in this case, as you know, the Particulars of the Offence read: “That Aaron Edward Leathem and James Mallett conspired together and with others unknown to burgle”, and Mr Brunt has made a point about the fact that the prosecution have to prove that others were involved; they don’t’. That phrase is commonly used by the prosecution where they recognise that others may have been involved. They do not have to prove that others were actually involved and, on the evidence that you’ve heard in this case, it seems to me, given that all the evidence is to do with Mallett and Leathem, that the agreement is really between those two people, the prosecution are alleging and there is either an agreement between the two or there isn’t, and so your verdict is going to be the same in each defendant’s case because if there’s no agreement they’re both not guilty. If there is an agreement that’s proved between the two of them, then they’re both guilty. Do you follow? Right, so that’s why (indistinct) I’m summarising the issues. I’m now going to turn to some more general legal principles, if I may.”
[57]Mr Brunt submitted to us that the judge’s summing up on this aspect was unfair as it invited the jury to convict on the basis that was not the case on trial and which it was understood the defence had to answer.[58]We do not accept that submission. The judge correctly pointed out to the jury that the indictment was framed in a manner simply in order to indicate that others might have been involved. The evidence presented was that the agreement that it was sought to prove was between Leathem and Mallet, even if others may have been involved, either before or afterwards. The judge’s direction correctly confined the jury’s attention to what (if anything) had been agreed between these two appellants. If they were not sure anything had been agreed between those two, then they would acquit both. It did not leave the possibility, well open otherwise and potentially very prejudicial to Mallett as author of the plan and the notebook entry, that he was in conspiracy with persons other than Leathem to burgle Mr Hastings’ property.[59]In our judgement, the judge’s admirably clear direction dealt with the real issue in the case – an alleged agreement between these two appellants to burgle Mr Hastings, whoever else might have become involved at any other stage. Either both were guilty or neither were. We can see nothing in the direction which imperils the safety of the conviction in this respect. Summary[60]For these reasons, we dismiss the appeals of both appellants and we refuse the renewed application for leave to appeal on an additional ground presented on behalf of Mallett.

Postscript

[61]The Court was disappointed that Counsel did not take us to any of the various authorities mentioned above, notwithstanding the fact that in advance of the hearing we had invited their specific attention to the passage in Blackstone’s Criminal Practice 2017, which provides references to some of the cases and a customarily helpful introduction to the topic in issue.