England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT WINCHESTER
HIS HONOUR JUDGE BRODRICK
20067081

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/05/2008

Lord Justice Rix (giving the judgment of the court):

1. This appeal concerns the disputed admission, at a trial of the appellant for murder of his long-term partner, effectively his wife, of the evidence of his former girlfriend, Rosie Thorne, concerning their relationship some 20 years or so earlier. In the terms of the Criminal Justice Act 2003, this evidence was admitted as bad character constituting "important explanatory evidence" (section 101(1)(c)), that is to say evidence such that "without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case" and whose "value for understanding the case as a whole is substantial" (section 102).
2. The appellant, Robert Davis, was convicted of murder on 30 March 2007 at the Crown Court at Winchester, before the Recorder of Winchester and a jury, following a plea of guilty to manslaughter which the Crown did not accept. His defence was lack of intention to kill or cause really serious bodily harm, alternatively provocation. The single ground of appeal is that the judge erred in admitting the girlfriend's evidence, and that as a result the conviction is unsafe.
3. The appellant and Joanne Wilson, whom we shall call his wife although they never married, had lived together for 14 years in Horndean, Hampshire. At the time of her death on 20 May 2006, he was 42 and she was 38. Their son, who was 12 at the time, and an older boy of 16, her son by a previous marriage, made up the family.
4. On the Crown's own case, the partnership had been, or at least had appeared to have been, a generally happy and successful one up until at most a few months before the death. Thus the judge's ruling on the admission of Rosie Thorne put the matter in this way (admittedly early on in the trial): "The picture which has begun to emerge from the evidence about the background to the relationship is that serious problems in the relationship between the defendant and deceased did not occur until about one or perhaps the most two months before the death of the deceased". And in his summing up the judge said this: "The evidence in general suggests that it was a happy relationship until a matter of months before May of 2006…". The wife's 16 year old son, two days after her death, told the police: "Well it was all right, because they have been together about, well, I don't know, 13 years now, 14 years, and then recently it must have been about a month and a half ago he started having arguments because he thought she was having an affair".
5. The Crown's evidence about those last months came not only from the son, who described increasing arguments "like every day", but from others. Gary Davis, one of the appellant's brothers, first heard of problems three weeks before the death. He said that things appeared to go downhill very sharply: the appellant was upset and on one occasion wept on his shoulder. The wife's parents had a close relationship with her. Her mother, whom the judge described as a very perceptive woman, spoke of "a few problems" some four to five weeks before her death. Her daughter told her that the appellant thought she was having an affair. A good friend of the appellant, Paul Conway, said that from May 2006 the appellant's appearance started to go downhill and he got very upset and emotional when he talked about matrimonial problems. A work colleague of the wife, Laura MacKenzie, described her as a lively bubbly person, but said that in the time leading up to her death she spoke of violence and bullying from the appellant. A friend of the appellant, Dennis Edmonds, said that the appellant described his wife as his "perfect woman" but that quite a few months before her death he had told him that he would rather see her dead than with another man. A work colleague and good friend of the wife, Julie Payne, said that up to two months before her death she was always happy, the life and soul at work, but that then there was a change and she spoke of the appellant's jealousy. The wife worked nights at Tesco: her manager there, Melvyn Hough, also spoke of her change in the last six weeks of her life from being bubbly to tearful, and late for work for the first time: in the last week of her life she spoke to him of almost daily violence, and the appellant's jealousy, and that he had put a knife to her throat; and that she was suspected of having an affair with him.
6. She was not having an affair with Melvyn Hough, but she was with a lorry-driver, Roy Evans, whom she had known for about three years. He delivered goods to Tesco. Over those years they had become more friendly, but they had not become lovers until April 2006. Sexual intercourse had occurred on about four occasions. this did not emerge until afterwards.
7. The appellant in his evidence also spoke of a change in their relationship, which he put to some two to three months before her death. He noticed changes in her personal care and appearance, and became suspicious and jealous. He thought she was having an affair with Melvyn Hough, her manager at work, whom he actually challenged on the subject, but accepted his assurance that it was not so and shook hands with him.
8. We come now to the days immediately leading up to her death. There was an incident when the appellant threatened her with a knife (a pen-knife) and stabbed the mattress with it. The appellant spoke of this in his interviews. This led to the police examining the mattress, where they found knife cuts. He accepted having threatened to kill her. He also said that he had cut himself with the knife. The 16 year old son also spoke of this incident: he said the appellant told his mother, "I'll leave, I'll give you everything". On 18 May the wife showed her mother a bruise on her leg, which she ascribed to kicking and punching. She also showed bruises to colleagues at work. She spoke of her unhappiness, and said that she wanted to leave the appellant. Roy Evans urged her to think about leaving sooner than the four years she had previously spoken to him about. A work colleague, Steven Hintze, found the appellant in tears: he told him that he thought the relationship with his wife was finished. Paul Conway, whom we have mentioned above, also found him in tears: he told Mr Conway that his wife had remarked that she never really enjoyed having sex with him, or more precisely, "Every time I have sex I fake it, I don't enjoy it." It was about this time that the appellant had confronted Mr Hough.
9. On Friday 19 and Saturday 20 May things appeared to have calmed down, or so the son thought. On the Friday night, the appellant and his wife had had sex. On Saturday morning, they booked flights for a holiday. They had a meal together. Later on they took out a romantic comedy DVD from a video shop, returning home a little after 6pm. The woman in the video shop thought they were "very much a couple".
10. From this point on, to the wife's death at about 6.40 pm, the evidence came almost entirely from the appellant alone. He said that he put the DVD on, went to give her a cuddle and a kiss, but was pushed away. She said: "I don't love you any more." He asked "Why not?", and started crying, on his knees, begging her to explain. She said: "I hate you"; and then, "I'm taking the boys and I'm leaving you". With that, the appellant ran into the kitchen and took a knife out of the drawer. He said it was to cut himself.
11. At this crisis his phone went: it was his brother Gary, who had left a message, saying "Please call me back". He put the knife down on the stairs. There was a conversation (which it was agreed was at 6.32 pm) in which he told Gary that his wife was leaving, with the boys. Gary told him to come to his home: the appellant said, "I can't, I love her too much". Gary asked to speak to the appellant's wife, but she refused. Gary gave evidence about this phone call: it is the only evidence of the crisis outside that of the appellant himself. Gary said – "I thought it was a straightforward domestic situation", but that towards the end of the conversation he thought Joanne was trying to provoke his brother. He told the appellant: "Don't lay a finger on her". He thought his brother was emotionally messed up. He heard her say: "So what if I'm having a fucking affair, what's it got to do with you?"
12. The appellant's version of this was: "What's it matter if I'm fucking seeing someone else?" To which he replied, trying to cuddle her, "What do you mean, you're seeing someone else?" She pushed him away, saying "I hate you, I hate you, I hate you". He fetched the knife from the stairs. She said: "It just happened, I fell for someone else." He spoke of getting access to his son, and she replied: "You're not fucking seeing him, you're not his father and you're not on the birth certificate". At this, he "lost it" (although, as he was to agree, his son looked just like him; and he did not mention this last comment of his wife in his interviews, explaining that he wanted to protect his son). He stabbed her twice.
13. The appellant wrote a note to his son. It said: "Sorry for what I am about to do bout (sic) has made me so unhappy lately she has been seeing someone at work. I love you so much…'sorry, sorry, sorry'". The wife's blood was found on the notebook paper. In interview the appellant both said that he wrote the note before the stabbing, and that he wrote it afterwards.
14. Within the hour, after a further phone conversation between the appellant and his brother, Gary's wife went to the appellant's home and found the wife's body, covered by a duvet. A police helicopter saw the appellant at Butser Hill. He was found and arrested soon after.
15. He was first taken to hospital, because of concern that he had taken an overdose of Nurofen. During the journey he told a paramedic in the ambulance that his wife had been having sex with a man, that he had got a knife to threaten her, she had slipped and he had fallen on top of her, stabbing her as he fell. In his interviews, his story came out, but not consistently. It was a scare that went too far. It was not supposed to happen. It was a freak accident. It just went wrong. He just lost it. He found difficulty in explaining the second stab. He accepted that he was jealous and bad-tempered, and that both on the day of her death and a few days before he had said that he would kill her if she took the kids away.
16. At trial, his case of provocation was founded on the following matters: his wife's infidelity, his well-grounded suspicion of it, her admission of it, her rejection of him, her statement that their relationship was over, her statement that she would leave immediately and take the children with her, her statement that she had not enjoyed sexual intercourse with him, and her statement that their child was not his son.

Rosie Thorne's evidence

17. The evidence that Rosie Thorne had to give, and was permitted to give under the judge's ruling, related to her relationship with the appellant in the 1980s, when she was 17 and the appellant was 20. She said the relationship had lasted five years. At first it was alright, but then it changed and the appellant became controlling. He told her to keep her eyes lowered when she went out, and also what to wear. This led to bad arguments. He was jealous and accused her of having affairs, while having affairs himself. There came a time when she said she had had enough, and he said that if she left him, he would kill her. That was during a car journey in the country, and he drove into a telegraph pole at sixty miles an hour. She was injured, but the relationship continued. One moment he was loving and attentive, and the next moment jealous and controlling. He would hit her, and she would hit him back. On another occasion, he tried to ram painkillers down her throat. He ended up taking them himself. On yet another occasion, he visited her in the office where she worked and stabbed a knife into the chair covering. There was another occasion when he held a Stanley knife to her throat and said: "If you leave me I'll kill you and no one else will have you." He said that if they had children and left him, he would kill her. In the end she left him and went to stay with her father. He accepted it, but used to park outside her father's house and draw his finger across his throat.
18. The appellant disputed most of this evidence. He said the relationship only lasted two and a half years, that he did not love her, or want children by her, and that he had not behaved as she had described. As for his car hitting a telegraph pole, that was an accident, caused by another car.

The judge's ruling

19. The Crown applied to introduce Rosie Thorne's evidence as bad character under two of the gateways of section 101(1) of the 2003 Act, viz gateways (c) and/or (d). The defence submitted that the statutory criteria had not been met and that in any event the evidence should have been excluded under section 78 of the Police and Criminal Evidence Act 1984 ("PACE").
20. The 2003 Act provides:

"101.–(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.

(4) On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged.

102. 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.

103.–(1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include –

(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;

(b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect.

(2) Where subsection (1)(a) applies, a defendant's propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of –

(a) an offence of the same description as the one of which he has been charged, or

(b) an offence of the same category as the one with which he has been charged.

(3) Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it apply in his case."

21. It will be observed that admission under gateway (d), where it is disputed, requires the court to consider the effect on the fairness of the proceedings, in particular by reference to the age of the bad character in question. Such considerations do not apply to gateway (c). That is because its legitimacy is established by reference to its own rationale and purpose, that is to say the necessity for such evidence, since without it the jury would find it "impossible or difficult" properly to understand other evidence in the case. The additional requirement, that its value for understanding the case as a whole is substantial, is a further hurdle for its admissibility.
22. The judge accepted the Crown's case under gateway (c), while leaving the position under gateway (d) unresolved. Indeed, the judge said that "I remain to be persuaded" that Rosie Thorne's evidence could be admitted under section 101(1)(d) and section 103.
23. The judge's reasoning proceeded as follows. He said that there were both similarities, on which the Crown relied, as well as differences as between the two relationships: as for the latter one of the most important was that the appellant's jealous and aggressive conduct appears to have occurred throughout the earlier relationship, whereas in relation to his wife it appears to have been confined to the last one or two months.
24. The judge referred to the objections raised by Mr Mousley QC who appeared at trial on behalf of the appellant, as he does again on this appeal. He listed them as follows: (1) the evidence in question related to conduct some twenty years before, when the appellant was a much younger man; (2) Rosie Thorne's evidence was disputed, raising the risk of satellite litigation; (3) it would be difficult for the appellant to trace witnesses to support his side of the disputed relationship; (4) there was no question of any provocation on the part of Rosie Thorne; (5) there was a substantial difference between Rosie Thorne's account of difficulties throughout the earlier relationship and the position in relation to the wife, where difficulties only arose at the end of a lengthy partnership; and (6) the evidence did not meet the statutory test of important explanatory evidence, nor did it amount to admissible evidence of propensity.
25. The judge addressed these six points seriatim. He said: (1) there was only a four year gap between the end of the relationship with Rosie Thorne and the beginning of the relationship with the appellant's wife. In any event, "much more significant" was the "extent of the similarity" in the way that the appellant had treated both Rosie Thorne and his wife. In that context the time difference was not a significant consideration. (2) The risk of satellite litigation was, however, a significant consideration, but the "degree of similarity" between Rosie Thorne's evidence and the evidence of the way in which the appellant had treated his wife in the later stages of their relationship meant that the risk that the jury would be diverted from the real issues was relatively slight. He was satisfied that that risk would be outweighed by the benefit of enabling the jury to assess Rosie Thorne's evidence and "to draw conclusions from it". (3) He could not assess the appellant's difficulties in tracing witnesses with a view to contradicting Rosie Thorne's account, but he would keep that under review. He treated (4), (5) and (6) together, by addressing the statutory requirements of sections 101(1)(c) and 102. He reasoned the matter as follows:

"In relation to provocation the first question which the jury will have to consider is whether they feel sure that nothing was said and nothing was done which was capable of amounting to provocative words and/or conduct. In the absence of Rosie Thorne's evidence the jury may be tempted to say to themselves we accept the evidence about the way in which the defendant behaved towards the deceased, but we think it is unlikely that he would have behaved in that way unless something had been said and or done prompting him to do so. On the other hand if the jury knew about the evidence of Rosie Thorne and accepted it, it seems to me that such a line of reasoning is much less likely because the evidence of Rosie Thorne is capable of leading the jury to conclusion that the defendant behaved in a broadly similar way without any provocative words or conduct on her part. In other words it would be difficult for the jury properly to understand the evidence of the defendant's conduct towards the deceased without having Rosie Thorne's evidence and on that basis it seems to me that the value of her evidence for understanding the case as a whole is substantial, provided of course that the jury accept her evidence.

The second question in relation to provocation is whether the prosecution can make the jury feel that the defendant did not suffer a sudden and temporary loss of control as a result of the alleged provocative words and/or conduct. The evidence of Rosie Thorne is capable of showing that the defendant lost control in relation to her without being subjected to any provocative words and/or conduct. In my judgment, that shows that Rosie Thorne's evidence is important explanatory evidence within the statutory definition. It is almost always difficult for a jury to assess what happened in the moments before a killing because they are almost always left with only one account of what took place; namely the account given by the defendant. In my judgment, in the absence of the evidence of Rosie Thorne it will be difficult for the jury to assess the defendant's account of what happened in relation to the deceased. It follows that the value of Rosie Thorne's evidence for understanding the case as a whole is substantial, again provided of course that it is accepted.

I am, therefore, satisfied in general terms that the statutory criteria are met under Section 101(1)(c) and Section 102. That was the main basis on which Mr Vere-Hodge QC put the case for the Crown. While the other way in which it has been put has not been fully argued under Section 101(1)(d) and Section 103, I remain to be persuaded that the evidence of Rosie Thorne would be admissible under those provisions."

The submissions

26. On this appeal Mr Mousley has submitted that the judge erred in principle and that the conviction is accordingly unsafe. It was neither in dispute that the 14 year relationship of the appellant and his wife had been broadly happy, nor that the last month or so had been marred by violence and aggression. The appellant had admitted such in his interviews. He had admitted hitting his wife and also threatening her with his pen-knife and stabbing it into the mattress. There was no need for evidence from some twenty years before to enable the jury to understand that he was a man capable of acting in such a way. The judge was in any event wrong to minimise the age and differences of the former relationship. The judge had wrongly admitted evidence of propensity, viz a propensity to act with jealous aggression even in the absence of any provocation, under the guise of important explanatory evidence, when the evidence did not meet the statutory criteria for the latter gateway, and the judge had not considered nor been persuaded by reference to the additional statutory protections built into the former gateway.
27. To the contrary, on behalf of the Crown, Mr Vere-Hodge QC has submitted that the judge was right for the reasons which he gave. He submitted that "whilst on the surface [the relationship] appeared to be happy nonetheless the Appellant was a controlling and jealous man". The level of violence used in the last month or two was in dispute. The appellant's account of the death was the only one available. The purpose of Rosie Thorne's evidence was to show "that the Appellant had a personality defect in that when he perceived that he was losing control of of a relationship with a woman he resorted to unprovoked violence." The judge was entitled to have regard to similarities, such as the violence to and threatening of Rosie Thorne with a knife. It was important not to second-guess the judge's "feel" for the case.
28. In any event the conviction was safe.

The summing up

29. No criticism has been made of the summing up. Nevertheless, it is relevant to look to it to see how, if at all, the evidence of Rosie Thorne was there deployed.
30. The judge referred to it three times. Once was of course in his recitation of her evidence. It occupies some six pages of the transcript. Before that, in his directions of law, he had told the jury why they had heard her evidence. He had previously defined the issues for the jury as involving a number of questions, questions 3 and 4 of which were: "(3) Do we feel sure that nothing was said and/or done which was capable of causing a sudden and temporary loss of self-control on the part of the defendant?" and "(4) Do we feel sure that the defendant did not suffer a sudden and temporary loss of self-control?" As to question 3, he suggested to the jury that they might think it appropriate "to look at that in the overall context of the relationship but the critical factor is the impact of anything said or done by the deceased immediately before the defendant gets the knife and does the stabbing". As to question 4, he told the jury that loss of self-control meant that the defendant was not the master of his own mind, rather than mere loss of temper. It was in relation to these questions 3 and 4 that the judge said this as to the "limited use" which they could make of Rosie Thorne's evidence. He said:

"If you are satisfied about her truthfulness and reliability then it has this limited relevance, and the relevance is in connection with the issue of provocation, it is relevant to that issue and that alone, and you would be entitled but not bound to take it into account when considering…question 3 and/or question 4; that is the extent to which it is of any legitimate assistance to you."

31. The third reference to Rosie Thorne in the summing-up came during the judge's treatment of the appellant's evidence, at the point where the appellant had described fetching a knife from the kitchen during the immediate run-up to her death just after she had said she was leaving with the children. The judge said:

"Well now, members of the jury, you may want just to pause there. Is that a mere coincidence of no significance that what appears to trigger going to the kitchen to the knife drawer and getting the knife is Joanne saying, "I'm going to leave and take the boys with me", or is this the first stage in the process of carrying out the threat which Rosie Thorne previously had made and which Joanne said he made namely, "Leave me and I'll kill you"? A matter for you to decide. I simply raise the two basic possibilities so that you have an opportunity to consider them."

32. We would observe that these references to Rosie Thorne's evidence suggest that it was being used as evidence of the appellant's propensity for jealousy and aggression. It is not clear how the appellant's inability to react without violence to the threat of being left by his partner or wife impacts on the defence of provocation. The judge here was not doubting, but relying on the appellant's account. Of course, it was for the jury to consider, as part of the defence of provocation, what was said or done and what impact that might have had on the appellant. But was the judge suggesting, as the logic of his ruling might have indicated, that the appellant's jealousy might be triggered merely by the threat of being left, and by nothing more? The summing-up itself gives no insight into that. The jury would not of course have been privy to the judge's ruling, but, even after the appeal hearing, it remained obscure to us how the Crown deployed the evidence of Rosie Thorne in final speeches. We must assume however that it was deployed in the way in which the Crown successfully addressed its argument to the judge at the time of his ruling.

Discussion and decision

33. Gateway (c), important explanatory evidence, no doubt reflects the common law rule which permitted background or explanatory material where the account otherwise to be placed before the court would be incomplete and incomprehensible: R v. Pettman (unreported, 2 May 1985) and R v. Fulcher [1995] 2 Cr App R 251. Illustrations of the doctrine are set out in Archbold 2008 at paras 13-29ff and also in Professor Spencer's book, Evidence of Bad Character, 2006, at para 4.9. They seem to us to be far from the present case. The common law doctrine was not necessarily limited to evidence of bad character, and could relate, for instance, to motive. Whatever be the precise limits of that common law doctrine in a time when the admissibility of evidence of prior bad character was limited, the gateway is now governed by the new statutory language and has to be seen in its overall setting.
34. That setting permits evidence of propensity under gateway (d) where it is "relevant to an important matter in issue", but subject to the additional safeguards of section 101 (3) and (4) and (where appropriate) section 103(3). That would suggest that evidence of propensity should not readily slide in under the guise of important background evidence, and that evidence which is admitted under gateway (c) should not readily be used, once admitted, for a purpose, such as propensity, for which additional safeguards or different tests have first to be met. Similarly, evidence may be admitted under gateway (f) "to correct a false impression given by the defendant" subject to the requirements of section 105, and it would seem odd if such evidence should be admitted under gateway (c) qua background, where its real importance was to correct a false impression, without meeting the requirements of section 105. A similar point could be made in relation to gateway (g), which requires an attack on another person's character, where the additional safeguards of section 101(3) and (4) again apply. However, evidence can of course be admitted via more than one gateway, and evidence admitted under the more stringent conditions of gateway (d) as "relevant to an important matter in issue" might well thereafter be available for more general purposes.
35. This latter point is well illustrated by R v. Campbell [2007] EWCA Crim 1472, [2007] 2 Cr App R 28. Campbell was charged with false imprisonment of and assault occasioning actual bodily harm on his partner. He had previous convictions, when he had pleaded guilty, which showed a propensity to commit similar acts of violence towards women. These were admitted under gateway (d). The judge directed the jury that they could also take them into account when deciding whether he had been truthful in his evidence. The issue on appeal was whether evidence admitted under gateway (d) as showing a propensity to violence could also be used in the guise of a propensity to be untruthful as throwing light upon the accused's credibility. It may be observed that both propensities arise under gateway (d) and section 103. This court, in a judgment given by Lord Phillips of Worth Matravers CJ, dismissed the appeal. Two points were emphasised. One was that once evidence had been admitted through a gateway, it was open to the jury to attach significance to it in any respect in which it was relevant (at paras 25/26, applying Lord Woolf CJ in R v. Highton [2005] EWCA Crim 1985, [2006] 1 Cr App R 7 at para 10). The other was that, while juries should be directed in a simple and common sense way as to why the character evidence may be relevant, which would necessarily encompass the gateway by which the evidence was admitted but not necessarily in the terms of the statute, directions should not become overcomplicated. Otherwise, to direct the jury that they could have regard to the evidence for one purpose but to disregard it for other purposes "would be to revert to the unsatisfactory practices that prevailed under the old law". The important thing was to explain the relevance of the evidence with reference to the particular facts which made the matter in issue important (at paras 25, 37/39). All that was said in the context of gateway (d); and it may be observed that Highton was concerned with gateway (g).
36. It is not clear, however, that such an approach is easily applied to gateway (c). Since evidence admitted under this gateway is admitted generally as "important explanatory evidence" whose value is substantial for understanding the case as a whole, it would seem difficult to think that the jury should be limited in its use (as the judge purported to limit the jury in this case, but without objection on this appeal). On the other hand, there must be a danger in admitting such evidence merely as "explanatory", however important, if the use to which it is really intended to put it is as evidence of propensity, where the statutory tests and safeguards are different. We consider that such considerations require that the statutory test for gateway (c) should be applied cautiously where it is argued to overlap with a submitted case of propensity. Alternatively, section 78 might well require such evidence to be excluded where it really amounts to evidence of propensity which would not be admitted as such: however, the role of section 78 in relation to gateway (c) is possibly controversial, see Evidence of Bad Character, at paras 1.21/28 and especially para 1.28.
37. We think that these matters are illustrated by the following authorities on gateway (c). In R v. Chohan, one of the cases dealt with under the report of R v. Edwards [2005] EWCA 1813, [2006] 1 Cr App R 3, Chohan was charged with robbery and firearm offences. The issue was identification. The identifying witness, Donna Marsh, had picked him out at an identification parade over a year after the robbery. She knew Chohan well, because she had seen him almost every other day for the year before the robbery as her heroin supplier. She had not wished to admit that at the time of the parade, saying only that she had known him from seeing him around and in a pub, but she made an additional witness statement putting the matter straight. It was that additional evidence which the Crown wished to have admitted under gateway (c). This court, in a judgment given by the Vice-President, Rose LJ, upheld the judge's ruling admitting this evidence under gateway (c) as being explanatory of her evidence as to identification. Rose LJ said (at para 75):

"Only if that was done, as it seems to us, would it be possible for her sensibly to explain, not least, in the face of the different defences emanating from the defendant, the basis of her ability to identify him in the circumstances which she did."

In the present case, by comparison, one might well ask of what other evidence Rosie Thorne's evidence was "explanatory" and find it difficult to answer.

38. By contrast, in R v. Smith, one of the cases dealt with under the report of R v. Edwards and Rowlands [2005] EWCA 3244, [2006] 2 Cr App R 4, Smith was charged with indecent offences against young girls and the Crown sought to adduce evidence of earlier indecent acts with other girls. The judge refused to admit this evidence under gateway (c) but allowed it under gateway (d). This court, in a judgment given by Scott Baker LJ, said that the judge rightly rejected the application under gateway (c) (at para 73) and went on to uphold his exercise of discretion under gateway (d). Scott Baker LJ concluded with a "word of caution for the future about the general undesirability of the jury being required to explore satellite issues one stage removed from the charges they are trying unless this is really necessary" (at para 86).
39. In R v. Beverley [2006] EWCA Crim 1287, [2006] Crim LR 1064 the issue was whether Beverley was a knowing participant in a cocaine importation conspiracy, the existence of which was not disputed. Beverley's case was that he was just doing his friend, Y, a favour by giving him a lift. Beverley had two previous convictions, one for possession of cannabis with intent to supply and the other for simple possession. Beverley pleaded guilty to both. The judge had admitted evidence of these convictions under both gateways (c) and (d). As for (c), this was wrong because the jury would not have been disabled or disadvantaged in understanding any of the evidence allegedly connecting Beverley with the crime of which he was accused without having these convictions before them. As for (d), it was doubtful whether on the facts the propensity to commit cannabis offences made it more likely that he had participated in the alleged conspiracy. The conviction was therefore unsafe and the appeal allowed. The commentary in the Criminal Law Review approves this decision as illustrating the need for the importance of a careful assessment of the relevance of any evidence sought to be introduced through the gateways. The commentary in Archbold (at para 13-35) submits that a long line of authority from customs prosecutions would have supported admission under gateway (d) as going to the important issue of Beverley's knowledge. Neither commentary criticises this court's treatment of gateway (c).
40. In R v. M [2006] EWCA Crim 3408, [2007] Crim LR 637 the accused was charged with possession of a firearm with intent to cause fear of violence. The critical issue at trial was one of identification. Evidence of his conviction 20 years earlier of an offence of possession of a firearm without a certificate was admitted under gateway (d). This court, in a judgment given by Keene LJ, allowed the appeal, holding that the evidence had been wrongly admitted. The admission of evidence was not a matter of judicial discretion, but more properly an exercise of judgment, and in this case the judge had patently erred. One conviction from twenty years before might establish a propensity, but only where there was some special and distinctive feature. Gateway (c) was not involved, but we refer to this authority as illustrating the danger of allowing evidence under one gateway when its real role, if it can be justified, lies under another. Thus Keene LJ said this about the possibility that the conviction might have been admitted instead under gateway (g):

"It is right, as Miss Purnell contends, that the 1984 conviction might have gone before the jury through gateway (g), once there had been an attack upon the character of the police witnesses, but the judge would have had to apply his mind to that, which he never did, and Mr Saunders argues, it seems to us with some merit, that the defence case might have been conducted in a different way, had the appellant's character not gone in at the outset of the trial under gateway (d) as it did. Moreover, we bear in mind that if it had gone in under that gateway (gateway (g)) rather than gateway (d), the directions given by the judge to the jury would have been different. In the circumstances of this case the judge specifically posed to the jury the question: "Did he [that is to say the appellant] have a propensity to have sawn-off shotguns?" That would not have been a question which would have been appropriate for the jury to consider in the circumstances, had this gone in under gateway (g), unless the judge had concluded that it was capable of showing a propensity which, as we have indicated, in our judgment it was not."

41. In our judgment, we think that the judge, highly experienced as he is, nevertheless in our case erred, and did so clearly, when he was persuaded that Rosie Thorne's evidence was admissible as important explanatory evidence on the ground that without it the jury would find it impossible or difficult properly to understand other evidence in the trial. The evidence of the wife's killing and the issue of provocation were in our judgment entirely comprehensible to the jury without their knowing of Rosie Thorne. The killing by the appellant was admitted. He admitted doing it, with a knife taken from the kitchen, striking two blows. The immediate conversation leading up to the stabbing might, save for the aspects arising out of the telephone call involving the appellant's brother Gary, come entirely from the appellant himself, but certainly nothing that happened between him and Rosie Thorne some twenty years earlier could throw any light on it, let alone amount to important explanatory evidence, whose value for understanding the case as a whole was substantial, without which the jury would find it impossible or difficult properly to understand other evidence in the case. A case of provocation needs an intense focus on the events leading immediately to the death, as the judge himself had directed the jury. The judge's reason for admitting the evidence under gateway (c) appears, on the other hand, to have been his concern that a man with a jealous, aggressive and controlling personality might persuade a jury that he had reacted to things said or done by his wife which had not been said or done at all. But if so, that must depend on the evidence in relation to the long relationship with the wife and in particular to the events leading up to her death, and not on Rosie Thorne. As it was, the jury were assisted with a great deal of evidence as to the appellant's relationship with his wife and to its sudden deterioration and its causes. It was not in dispute that that long relationship changed dramatically for its last month or two, and that the reason for that was the appellant's conviction (which turned out to be true, even if his suspicions lay in the wrong direction) that his wife was having an affair. It was not in dispute that in the last week or so the appellant used violence on his wife and threatened her with a pen-knife. If in such circumstances, his jealous and controlling nature led him to that violence, and even to her death, what need was there for Rosie Thorne's evidence to make the difference between the jury's comprehension or incomprehension of the evidence in the case? In any event, Rosie Thorne left the appellant and he suffered that loss without killing her, even though their relationship for its five years had always been stormy and tempestuous.
42. In such circumstances, the judge quite properly had difficulties with a submission that he should admit the evidence under gateway (d). And yet, the real purpose of its admission under gateway (c), it seems to us, was to inform the jury that the appellant had a propensity for violence and aggression, including at least the threats of death, even in the absence of provocation. As Mr Vere-Hodge submitted to us: "Whilst on the surface it [the appellant's long relationship with his wife] appeared happy nonetheless the Appellant was a controlling and jealous man" and "the appellant had a personality defect" etc (see para 27 above). That is not important explanatory evidence, it is evidence of a propensity, or evidence to meet the appellant's case of provocation by seeking to show that he could kill (even though he never before had) without provocation. It seems to us that however hard one presses the word "properly" in the statutory test of "impossible or difficult properly to understand" it is illegitimate to press it as far as admitting the evidence of Rosie Thorne simply on the ground that it might possibly go a certain distance to meet the appellant's case at trial. The evidence of Rosie Thorne was not intended to explain or help the jury to understand the other evidence in the case, but to contradict the appellant's case, from a distance of some twenty years, as to the dynamics of his relationship with his wife and the circumstances leading up to her death. A fortiori it is difficult to see that Rosie Thorne's evidence had a "substantial" value for understanding the case as a whole.
43. Moreover, even where evidence is admitted under gateway (d) and its additional safeguards, the typical case of previous convictions at least provides the most solid of evidence as to previous bad character. In the present case, the appellant disputed the evidence of Rosie Thorne and had to do so, on an ancillary or satellite matter, over a distance of some twenty years. That might not be directly relevant in relation to gateway (c) as distinct from gateway (d), but it illustrates the importance of keeping gateway (c) within its proper bounds.
44. We therefore consider that the judge should have refused to admit the evidence of Rosie Thorne under gateway (c). We also consider that the conviction was therefore unsafe. It was admitted on the basis that it was important to the proper understanding of the case as a whole, and that it was in some respects vital to the jury's proper understanding. The jury were told that it was relevant to aspects of the defence of provocation. It was used by the judge in his summing-up, at a critical point of the appellant's account, to suggest that it could somehow be in the Crown's favour, in relation to the appellant's account of his wife's death, that the appellant had reacted badly (but not murderously) to being told that he would be left by Rosie Thorne.
45. These are the reasons for which, at the conclusion of the hearing, we allowed the appeal, directing a retrial.