Mitchell, Regina v: SC 19 Oct 2016

Appeal against conviction for murder. Evidence was agreed with her representatives as to previous acts using knives, but was presented despite withdrawal by her of her consent. The prosecution now appealed against the quashing of the conviction.
Held: The conviction had been unsafe and correctly quashed: ‘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 and it must not be regarded as a satisfactory substitute for direct evidence of the accused’s involvement in the crime charged.’
‘the existence of a propensity must be proved to the conventional criminal standard. I do not accept the appellant’s argument that it does not call for ‘special’ treatment, if by that it is meant that the existence of a propensity need not be established beyond reasonable doubt. This issue stands apart from the evidence which speaks directly to the defendant’s guilt or innocence of the offences charged. Evidence about a propensity or tendency to commit a specific type of crime or engage in a particular species of misconduct is not in pari materia with testimony that touches on the actual events said to constitute the particular crime involved. It is right, therefore, that the jury should be directed that before they take this into account, they must be convinced that propensity has been proved. That is not to say that the jury must be unanimous on the question of whether it exists. As the judge said in Ngyuen, jurors are at liberty to follow their own evidential track. But the jury should be directed that, if they are to take propensity into account, they should be sure that it has been proved. This does not require that each individual item of evidence said to show propensity must be proved beyond reasonable doubt. It means that all the material touching on the issue should be considered with a view to reaching a conclusion as to whether they are sure that the existence of a propensity has been established.’


Lord Kerr, Lord Clarke, Lord Hughes, Lord Toulson, Lord Hodge


[2016] UKSC 55, [2016] 3 WLR 1405, [2016] WLR(D) 541, [2017] AC 571, UKSC 2015/0122


Bailii, Bailii Summary, WLRD, SC, SC Summary


Northern Ireland


CitedNgyuen, Regina v CACD 18-Mar-2008
The court considered the use of bad character evidence based upon one previous alleged incident from which no prosecution had followed. The appellant had been convicted of murder in a public house in Woolwich. He struck the victim in the neck with a . .
CitedDM, Regina v CACD 21-Apr-2008
The accused appealed after the admission of bad character evidence in respect of allegations for which he had not faced prosecution. Moses LJ said that a jury would need ‘to consider with as much detail and concentration all the facts’ in relation . .
CitedLafayette, Regina v CACD 18-Dec-2008
The defendant appealed against his conviction for murder. He had claimed self defence. A main issues for the jury was who had produced the knife which caused the fatal injuries. The appellant had previous convictions for, other offences of violence . .
CitedO’Dowd v Regina CACD 12-May-2009
The defendant appealed against his conviction for serious sexual offences. The trial was very lengthy after the prosecution introduced bad character evidence from other allegations from some 17 years or more before. . .
CitedCampbell, Regina v CACD 12-Jun-2009
Where non-conviction evidence is being relied on to establish propensity and the evidence is disputed, the jury must be directed not to rely on it unless they are sure of its truth. . .
At CANIMitchell, Regina v CANI 30-Apr-2015
Appeal from conviction for murder. The conviction had been obtained after evidence was led as to previous occasions on which the defendant was said to have used knives in violent encounters as evidence of bad character.
Held: Leave to appeal . .
CitedMakin v Attorney-General for New South Wales PC 12-Dec-1893
The accused had been charged with the murder of an infant who had been given into their care by the child’s mother after payment of a fee. They appealed after admission of evidence that several other infants had been received by the accused persons . .
CitedRegina v Armstrong HL 1922
The defendant was charged with the murder of his wife by giving her arsenic. His defence was that he had not administered the poison, although he admitted that he had arsenic which, he said, he used as a weed killer. He claimed that his wife had . .
CitedMoorov v HM Advocate 1930
Corroboration evidence. . .
CitedRegina v Kilbourne HL 1973
The respondent was convicted of sexual offences against two groups of boys. The trial judge directed the jury that they would be entitled to take into account the uncorroborated evidence of the second group as supporting evidence given by the first . .
CitedRegina v Boardman HL 1974
The defendant appealed the admission of similar fact evidence against him. Acts of buggery were alleged by a schoolmaster with boys in which the accused was the passive partner.
Held: In order to be admissible similar facts must bear a . .
CitedRegina v Scarrott 1978
Scarman LJ referred to the need for similar fact evidence to be ‘believed’ and the need for the jury ‘to accept the evidence’: ‘Positive probative value is what the law requires, if similar fact evidence is to be admissible. Such probative value is . .
CitedDirector of Public Prosecutions v P HL 1991
The defendant faced specimen counts of rape and incest against each of his two daughters. The trial judge refused an application for separate trials in respect of the offences alleged against each daughter. The defendant was convicted.
Held: . .
CitedRegina v Z (Prior acquittal) HL 22-Jun-2000
The defendant on a charge of rape had been tried and acquitted of the rape of different women on three previous occasions in three separate trials. The prosecution wished to call those three complainants to give similar fact evidence in support of . .
Lists of cited by and citing cases may be incomplete.


Updated: 17 June 2022; Ref: scu.570162