Edwards & Anor, R. v

Evidence falling within the exclusions in Criminal Justice Act 2003 section 98 is not bad-character evidence and is admissible without passing through a section 101 gateway. A co-defendant may rely on section 101(1)(e) only where there is an important issue between defendants and the evidence has substantial probative value; separate, conflicting accounts may satisfy that test without a classic cut-throat defence.

Section 101 regulates admissibility, not the use or weight of evidence once admitted. The judge must police the statutory gateways and fairness discretion, while the jury decides whether to accept the evidence and what weight it bears. Untested allegations may be bad-character evidence against a defendant, assessed on the statutory assumption that they are true. A stay of related charges does not, in principle, bar relevant allegations from being admitted in a later trial, subject to the fairness discretion.

This was a composite judgment on appeals arising from four Crown Court trials concerning the bad-character regime in sections 98 to 112 of the Criminal Justice Act 2003.

• Ipswich Crown Court: Edwards and Rowlands were convicted of conspiracy to supply ecstasy. Their defences blamed the other for the drugs, and Rowlands challenged the admission of his convictions, a cartridge and an antique firearm.
• Taunton Crown Court: McLean was convicted of two section 18 woundings. His co-defendant relied on McLean’s previous violent offending.
• Newport Crown Court, sitting at Portsmouth: Smith was convicted of gross indecency with a child. The issue was whether allegations underlying counts stayed for abuse of process could nevertheless be admitted as bad-character evidence.
• Luton Crown Court: Enright and Gray were convicted of possession of controlled drugs with intent to supply. Enright challenged the direction on his convictions; Gray renewed her application for leave to appeal against sentence.

1. Disposition. The court dismissed the conviction appeals of Rowlands, McLean, Smith and Enright. It refused Edwards’s and Rowlands’s renewed applications for leave to appeal against sentence. Gray’s renewed application for leave to appeal against sentence was adjourned for hearing by another court.
2. Section 98. Lawful possession of an antique firearm was not evidence of misconduct and therefore was not bad-character evidence. The cartridge fell within section 98(a): it had to do with the alleged facts because it had initially formed a count on the same indictment. Neither item required admission through section 101. The judge had nevertheless erred in admitting Rowlands’s convictions through section 101(1)(g), since that gateway admits only prosecution evidence.
3. Issues between co-defendants. The court held that section 101(1)(e) required examination of the case as a whole. Conflicting accounts can create an important issue between defendants even where neither defendant makes a direct affirmative accusation in the conventional cut-throat form. The evidence must still have substantial probative value. Although the court doubted that Rowlands’s old convictions met that threshold, the careful direction and the strength of the evidence made his conviction safe. McLean’s previous section 18 conviction had substantial probative value on the competing accounts of who committed the violence.
4. Propensity evidence and fairness. In Smith’s case, allegations of earlier sexual misconduct were capable of establishing propensity. Their truth and weight were for the jury, while the judge decided their capacity and probative force. A prior stay did not put Smith on trial again for the stayed allegations. Relevant evidence of them was admissible in principle, subject to the broad fairness discretion in section 101(3), including the time factor in section 101(4). The trial judge had exercised that discretion without error.
5. Use and directions. A section 101 gateway determines admissibility only. Once evidence is admitted, it may be used for any relevant purpose, but the judge must direct the jury accurately on its limited relevance and must prevent it from bolstering a weak case or causing prejudice. Enright’s convictions did not assist on either truthfulness or propensity, but the direction viewed as a whole and the strong prosecution evidence meant that his conviction was safe.

• Court of Appeal (Criminal Division): By this judgment, [2005] EWCA Crim 3244, the court dismissed the conviction appeals and refused the renewed sentence applications of Edwards and Rowlands.
• Crown Court at Ipswich: Edwards and Rowlands were convicted of conspiracy to supply ecstasy and each received ten years’ imprisonment.
• Crown Court at Taunton: McLean was convicted of two counts of wounding with intent and received an automatic life sentence with concurrent determinate terms of five years.
• Crown Court at Newport, Isle of Wight, sitting at Portsmouth: Smith was convicted of five counts of gross indecency with a child and received concurrent terms of 21 months’ imprisonment.
• Crown Court at Luton: Enright and Gray were convicted of possession of controlled drugs with intent to supply and each received concurrent terms of four years’ imprisonment. Gray’s renewed sentence application was adjourned by this court.