R v Mitchell (Angeline)

A jury does not need to be satisfied of the truth of each incident when considering propensity; they should consider on all the prosecution evidence if they are satisfied that there is propensity.

In October 2010 Angeline Mitchell was convicted of the murder of her ex- partner, Anthony Robin. In her trial, the prosecution sought to adduce evidence of her previous bad character to show that she had a propensity to use knives violently. However, none of these previous incidents resulted in convictions.

The prosecution and defence agreed statements for two incidents. The prosecution was also allowed to adduce the evidence of five further incidents. During her evidence, however, Ms. Mitchell disputed the way each incident was alleged to have happened. The trial judge did not direct the jury on whether they needed to be satisfied the evidence was true, or whether they had be satisfied that it established the propensity alleged.

Ms. Mitchell appealed her conviction on the basis that the judge had failed to direct the jury properly about the bad character evidence. The Court of Appeal stated that the jury should have been directed to only rely on non-conviction evidence if they were sure of its truth, an approach endorsed by Archbold 2015 para 13-68, and the Court of Appeal suggested this was supported by the authorities of R v Lafayette [2009] Crim LR 809 and R v Campbell [2009] Crim LR 822. The conviction was quashed and a re-trial ordered.

The following question was certified for the Supreme Court:

"Is it necessary for the prosecution relying on non-conviction bad character evidence on the issue of propensity to prove the allegations beyond a reasonable doubt before the jury can take them into account in determining whether the defendant is guilty or not?"

Held:

The proper question to be posed is whether the jury is satisfied that a propensity has been established. That assessment depends on an overall consideration of the evidence available, not upon a segregated examination of each item of evidence in order to decide whether it has been proved beyond reasonable doubt.

It is necessary to emphasise, however, that propensity is, at most, an incidental issue. It should be made clear to the jury that the most important evidence is that which bears directly on the guilt or innocence of the accused person. Propensity cannot alone establish guilt.

In the particular case the Judge's directions had been lacking, in any event, and it was correct the conviction was not upheld.

On the general point, however, Lord Kerr stated that the specimen directions in the current Bench Books in England and Wales, as well as Northern Ireland, may need revisiting in regards to this issue insofar as they are now out of line with this judgement.