Weir & Ors, R. v

Bad-character evidence is governed by the statutory gateways in the Criminal Justice Act 2003, not by the former common-law similar-fact rules. The specified categories and descriptions of convictions are evidential routes to propensity, but do not exhaust the ways in which propensity may be proved.

Evidence of a defendant’s bad character must be relevant to an important issue and, where exclusion is sought, the court must assess fairness. Evidence which is not bad-character evidence remains potentially admissible at common law if relevant and fair. A non-defendant’s bad character may concern credibility, but must have substantial probative value. Inadmissible evidence will not make a conviction unsafe where an effective direction neutralises any prejudice.

This was a conjoined judgment determining six appeals raising distinct questions under the bad-character provisions of the Criminal Justice Act 2003.

Weir challenged the admission of a caution. Somanathan challenged the admission and use of evidence from other women and a former temple colleague, together with hearsay and expert evidence. Yaxley-Lennon challenged the admission of a defence witness’s caution. Manister challenged convictions for indecent assault and the admission of evidence concerning his relationships with two other girls. Hong Qiang He and De Qun He challenged the admission, at a co-defendant’s instance, of evidence of earlier incidents involving them.

The central issues were the statutory scope of bad character, the survival of common-law relevance where conduct was not misconduct, fairness, and the safety of the resulting convictions.

1. Disposition. The appeals of Weir, Somanathan and Yaxley-Lennon were dismissed. Manister’s appeal was allowed on Count 2 only, and that conviction was quashed; his remaining conviction and sentence appeals were dismissed. Hong Qiang He’s and De Qun He’s appeals were allowed because their convictions were unsafe.

2. Weir. Under the Criminal Justice Act 2003, proof by convictions of the same description or category is permissive, not exhaustive. A caution for an offence outside the prescribed category could therefore still prove propensity by another route. The caution was properly admitted through section 101(1)(d), subject to the fairness assessment in section 101(3).

3. Somanathan. Section 99 abolished the former similar-fact rules. The statutory scheme makes defendant bad-character evidence admissible through a gateway; the former general rule of exclusion subject to exceptions no longer applies. The evidence of a pattern of sexually charged behaviour, and of dishonesty and conduct at the former temple, was relevant to important issues and was fair to admit. The defendant’s positive claims about his reputation could also open the false-impression gateway. His attack on the complainant’s character opened the section 101(1)(g) gateway. The jury directions, the expert evidence and the admission of the unavailable witness’s statement were adequate.

4. Yaxley-Lennon. Credibility may be a matter in issue for section 100. The witness’s cocaine caution nevertheless lacked substantial probative value and was inadmissible. The judge’s forceful direction to disregard it meant that the majority verdicts remained safe.

5. Manister. A lawful sexual relationship between an adult and a 16-year-old was not, without additional reprehensible features, bad-character evidence. It could nevertheless be admitted at common law because it was relevant and fair evidence of sexual interest in girls substantially younger than the defendant. The Count 2 conviction could not stand: once prosecution for unlawful sexual intercourse was time-barred, indecent assault could not be left as an alternative to rape.

6. Hong Qiang He and De Qun He. Earlier incidents which did not amount to misconduct could not be used as relevant propensity evidence merely because a co-defendant sought to rely on them. Their admission may have undermined the appellants’ self-defence cases, rendering the convictions unsafe.

• Court of Appeal (Criminal Division). In [2005] EWCA Crim 2866, the court dismissed the appeals of Weir, Somanathan and Yaxley-Lennon; quashed Manister’s Count 2 conviction but dismissed his other appeals; and allowed the appeals of Hong Qiang He and De Qun He.
• Crown Court. The underlying convictions were entered at Manchester, Croydon, Luton, Bristol and Southwark Crown Courts, as applicable to the individual appellants.