Tirnaveanu, R v

Evidence of other misconduct which merely assists to prove identity is evidence of bad character unless it has a sufficient factual and temporal nexus with the alleged offence. Its admission must therefore satisfy a gateway under section 101 of the Criminal Justice Act 2003 and the fairness safeguard.

A jury need not unanimously choose between principal and secondary participation where the alternatives raise no relevant difference in the issues or defence. A unanimity direction is required where alternative factual bases create materially different issues. A single count cannot charge conduct spanning statutory amendments which create different offences.

The appellant was convicted at Canterbury Crown Court, after a two-month trial, of offences connected with providing forged identity documents and assisting Romanian immigrants. He received consecutive and concurrent sentences totalling seven years.

He appealed on three grounds. He challenged the admission and jury directions concerning evidence of other misconduct under the Criminal Justice Act 2003. He contended that the jury required a unanimity direction on counts alleging that he made, or procured the making of, false instruments. He also challenged count 12, which alleged facilitating illegal entry under section 25 of the Immigration Act 1971.

The central issues were the proper statutory route for the other-misconduct evidence, the circumstances requiring a Brown direction, and whether one count could span two versions of section 25 that created different offences.

1. Appeal allowed in part. The conviction on count 12 was quashed. The appeal against all other convictions was dismissed. The concurrent sentence on count 12 did not alter the total term of imprisonment.

2. The evidence concerning other immigrants was highly relevant to the live issue of identity. It was evidence of bad character under sections 98 and 112 of the Criminal Justice Act 2003. The section 98 exclusion for evidence which has to do with the alleged facts of the offence requires a factual and temporal nexus with those facts. It does not encompass separate misconduct merely because it materially assists to identify the offender.

3. The evidence was admissible through section 101(1)(d), as it concerned the important issue whether the appellant, rather than another person using his name, committed the offences. The fairness test in section 101(3) required a broad balancing exercise. In practical effect it was the same mandatory threshold as section 78(1) of the Police and Criminal Evidence Act 1984. The judge correctly admitted the powerful identity evidence.

4. The summing up should have stated simply that the other-conduct evidence could assist on identity, and that the jury had first to be sure of its reliability. The omission did not render the convictions unsafe. The identity purpose was clear throughout the trial and the judge gave adequate general directions. A separate propensity warning was neither appropriate nor necessary because propensity was not in issue.

5. No R v Brown (K) (1984) 79 Cr App R 115 direction was required on the forgery counts. Following R v Giannetto [1997] 1 Cr App R 1, a jury may convict where it is sure that a defendant committed the offence either as principal or by procuring it, provided the alternatives create no relevant or material difference in the issues or defence. Here the alternatives did not do so.

6. Count 12 impermissibly alleged one offence over a period during which section 25 of the Immigration Act 1971 was replaced by a provision creating a different offence. Conduct before and after 10 February 2003 had to be charged in separate counts. The defect was materially different from that considered in Pritchett & Langston [2007] EWCA Crim 586.

• Court of Appeal (Criminal Division) — [2007] EWCA Crim 1239: allowed the appeal only on count 12 and quashed that conviction; dismissed the appeal on all other counts.
• Crown Court at Canterbury — before HHJ Van Der Bijl: the appellant was convicted after trial and sentenced to a total of seven years' imprisonment.