Wallace v R

Where several substantive offences are tried together, evidence linking a defendant to one count may technically be evidence of bad character when used on another count under Criminal Justice Act 2003, sections 98 and 112(2). It must therefore pass through a section 101 gateway.

Evidence may nevertheless be admitted under section 101(1)(d) where, viewed with the other circumstantial evidence, it is relevant to the important issue of the defendant’s participation in each offence. Its technical statutory classification does not require a bad-character direction where its true evidential use is as circumstantial evidence. The jury should instead receive a clear direction to draw an adverse inference only where it is irresistible and no sensible alternative explanation exists.

The appellant was convicted at Nottingham Crown Court of three robberies, attempted robbery, possession of imitation firearms and unlawful wounding. The prosecution case was circumstantial. It alleged that the appellant organised, and in one instance attended, a series of linked armed robberies.

He appealed on the grounds that the charges should have been dismissed, the case should have been withdrawn from the jury, the summing-up was defective, and evidence concerning the other robberies had been admitted without the statutory bad-character procedure. The central issue was whether evidence connecting him with one charged robbery was bad-character evidence when used on another count, and whether any procedural failure rendered the convictions unsafe.

1. Appeal dismissed. The convictions were safe. The trial judge correctly left the circumstantial case to the jury.

2. The robberies were sufficiently linked that it was unreal to examine the evidence about each in isolation. The jury could consider the whole evidential picture, provided it remained satisfied that the appellant participated in the particular offence under consideration. The common organisation of the robberies could not replace an evidential link to an individual count, but the primary facts supplied sufficient material for the jury to draw the necessary inferences.

3. The direction on circumstantial evidence was correct. An adverse inference could be drawn only if it was irresistible and there was no other logical and satisfactory explanation. The judge made clear that no individual item proved guilt, and that the combined evidence had to establish participation in each robbery.

4. By the wide definition in sections 98 and 112(2) of the Criminal Justice Act 2003, evidence tending to implicate the appellant in one charged robbery was technically bad-character evidence when used in relation to another. That conclusion applied even though the evidence was circumstantial rather than evidence of propensity in the ordinary sense.

5. Strictly, the prosecution should have applied under section 101(1)(d). The evidence would inevitably have been admitted because it was relevant to the important issue of whether the appellant participated in each offence, and its admission did not adversely affect trial fairness. No injustice resulted from the absence of an application.

6. Once admitted, the evidence was relevant for what it proved as part of the circumstantial case. No bad-character direction, or reference to bad character in its ordinary sense, was needed. A straightforward circumstantial-evidence summing-up was appropriate.

• Court of Appeal (Criminal Division): dismissed the appellant’s appeal against convictions entered at Nottingham Crown Court on 15 September 2006.
• Nottingham Crown Court: convicted the appellant of robbery, attempted robbery, possession of imitation firearms and unlawful wounding; imposed imprisonment for public protection with a minimum term of 7 years and 381 days.