The defendant had been convicted of posing as a solicitor in order to commit frauds. He appealed, saying that the court had wrongly admitted evidence of his dealings with illegal immigrants.
Held: The evidence admitted was highly relevant as evidence of bad character. The section has to be applied after a fact-specific exercise. The court found no significant difference between the effects of the words in section 78(1) of the 1984 Act and section 101(3) of the 2003 Act. In this case it had been correctly admitted.
Thomas LJ gave the following analysis of section 98 of the 2003 Act: ‘Was the evidence ‘to do with the alleged facts of the offence’?
Section 98 of the CJA 2003 excludes from the definition of bad character, misconduct on the part of a defendant which has ‘to do with the alleged facts of the offence with which the defendant is charged’. The contention of the prosecution was that the evidence was ‘to do’ with the offences with which the appellant was charged. The consequence of that argument was that, if the evidence was within the exclusion, then it was not for the purposes of the statutory provisions evidence of bad character and, as this court said in Edwards and Rowlands (at [1(i)]) (as qualified in R. v Watson [2006] EWCA Crim 2308 at [19]), the evidence ‘may be admissible without more ado’.
There is very little authority on the extent of this exclusion. In R. v Machado [2006] EWCA Crim 837, the defendant charged with robbing a victim wished to use evidence that the victim had taken an ecstasy tablet shortly before the attack and immediately before the attack had offered to supply him drugs. This court held that the matters were in effect contemporaneous and so closely connected with the alleged facts of the offence, and so were ‘to do’ with the facts of the offence. In Edwards and Rowlands, this court observed at [23] that the term was widely drawn and wide enough to cover the finding of a pistol cartridge at the home of one of the defendants when it was searched in connection with the drugs offences with which the defendants were charged. In R. v McKintosh [2006] EWCA Crim 193, this court held that a matter immediately following the commission of the offence was ‘to do with the offence’. In Watson, an assault committed was held to do with the charge of rape committed upon the same person later in the day. Professor J.R. Spencer, Q.C. in his useful monograph, Evidence of Bad Character at para.2.23 suggested that it clearly covered acts which the defendant committed at the same time and place as the main offence and presumably covered acts by way of preparation for the main offence and an earlier criminal act which was the reason for the main crime.
The basis on which it was contended before us by the prosecution that the evidence which they sought to adduce was ‘to do’ with the facts of the alleged offence was that it was evidence which was central to the case in that it related to proving that the appellant was the person who had committed the offences charged in the various counts. We do not accede to that submission. As counsel for the prosecution accepted, if his submission was right, then in any case, where the identity of the defendant was in issue (including, by way of example, cases of sexual misconduct), the prosecution would be able to rely on this exclusion to adduce evidence of misconduct on other occasions which helped to prove identity. It seems to us that the exclusion must be related to evidence where there is some nexus in time between the offence with which the defendant is charged and the evidence of misconduct which the prosecution seek to adduce. In the commentary in the Criminal Law Review to R. v T [2006] EWCA Crim 2006; [2007] 1 Cr. App. R. 4 (p.43); [2007] Crim. L.R. 165, it was argued that the court in Machado and McKintosh had taken too narrow a view of s.98 thereby permitting prejudicial evidence to be admitted on the threshold test of relevance alone with no gateway having to be satisfied. We do not agree-the application of s.98 is a fact-specific exercise involving the interpretation of ordinary words.
We respectfully agree with Professor J.R. Spencer, Q.C. Evidence of Bad Character at para.2.23, where he suggests that there is a potential overlap between evidence that has to do with the alleged facts of the offence and evidence that might be admitted through one of the gateways in s.101(1) . As he observes in relation to the example he took of prior misconduct being the reason for the commission of the offence, such evidence could be admitted either as ‘to do’ with the offence or as important explanatory evidence under s.101(1)(c): ‘In practice nothing of any legal significance depends on which of these two routes it is by which the evidence comes in.’
Judges:
Thomas LJ, Penry-Davey J, Wyn-Williams J
Citations:
[2007] EWCA Crim 1239, Times 02-Jul-2007
Links:
Statutes:
Criminal Justice Act 2003 98(a) 101(3), Police and Criminal Evidence Act 1984 78(1)
Jurisdiction:
England and Wales
Cited by:
Cited – Lunkulu and Others v Regina CACD 7-Aug-2015
Request for leave to appeal out of time against convictions for murder and against sentence. Much evidence had been circumstantial, and the defendants alleged bias in the summing up, and complained of the admission of bad character evidence.
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 11 July 2022; Ref: scu.252550