Nelson, R v

Under section 101(1)(g) of the Criminal Justice Act 2003, an attack on another person’s character need not concern a prosecution witness. Admission of bad-character evidence nevertheless remains subject to fairness. It will usually be unfair where the sole attack concerns a person who is neither a witness nor a victim.

An imputation made in interview cannot properly be introduced merely to create a gateway for bad-character evidence. A direct allegation that a prosecution witness has conspired to fabricate evidence is, however, an attack on that witness’s character. A jury should be told that bad character does not itself prove guilt. Omission of that direction will not render a conviction unsafe where the evidence and verdicts demonstrate that the jury did not reason in that way.

The appellant was convicted of affray after a four-day trial in the Crown Court at Woolwich. He was sentenced to 10 months’ imprisonment and acquitted of assault occasioning actual bodily harm.

The prosecution case was that he swung a machete near Dale Kinvig and later assaulted him in a lift. The defence alleged that Kinvig and the appellant’s neighbour had fabricated the allegations following a dispute. The trial judge admitted previous drug convictions as bad-character evidence under section 101(1)(g) of the Criminal Justice Act 2003.

On appeal, the issues were whether the statutory gateway and fairness requirements had been correctly applied, and whether an omission in the jury direction on the permitted use of bad-character evidence made the affray conviction unsafe.

1. Appeal dismissed. The direct cross-examination allegation that Kinvig had conspired with the appellant’s neighbour to invent false evidence was an attack on Kinvig’s character. It independently satisfied section 101(1)(g) of the Criminal Justice Act 2003.

2. The wording of section 101(1)(g) extends beyond attacks on prosecution witnesses. It may therefore encompass an imputation against a non-witness. However, section 101(3) preserves the requirement of fairness. It would ordinarily be unfair to admit a defendant’s bad character solely because of an attack on a person who is neither a witness nor a victim.

3. An imputation made in interview may amount to an attack under section 106(1)(c) only where evidence of it is given at trial. The appellant’s assertion that the non-witness neighbour used drugs was irrelevant to the issues and could not properly be admitted merely to establish the section 101(1)(g) gateway. That error did not affect the ruling because the attack on Kinvig was an independent and sufficient basis for admission.

4. The judge was entitled to find that admission of the non-violent drug convictions was fair. The credibility of Kinvig and the appellant was central. The potential prejudice was limited, particularly because police evidence had already placed the appellant’s use of cannabis before the jury.

5. The jury should have been expressly directed that bad character alone cannot prove guilt, consistently with [2005] EWCA Crim 824 and [2005] EWCA Crim 1813. The omission was regrettable but did not render the affray conviction unsafe. There was substantial independent evidence, and the acquittal on the assault count showed that the jury had not treated the previous convictions as proving guilt.

• Court of Appeal (Criminal Division): By [2006] EWCA Crim 3412, dismissed the appeal against the affray conviction.
• Crown Court at Woolwich: On 1 September 2006, following a four-day trial before Judge Carroll, convicted the appellant of affray, sentenced him to 10 months’ imprisonment, and acquitted him of assault occasioning actual bodily harm.