Saleem, R. v

Evidence of a defendant’s bad character must be analysed under the statutory code in the Criminal Justice Act 2003, rather than by applying abolished common-law categories. Material may be admissible through the gateway for an important issue between the parties where it assists in rebutting an asserted innocent presence, without thereby demonstrating a propensity to commit the charged violence.

Bad-character evidence should be admitted only where its effect on trial fairness does not require exclusion. The jury must receive a fact-specific direction explaining its permitted relevance, its limited use, and the need to avoid undue weight or propensity reasoning. A deficient direction does not make a conviction unsafe where the relevance would be apparent through logic and common sense and the remaining evidence is compelling.

The appellant was convicted at Reading Crown Court of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861. The prosecution alleged that he participated in a planned group attack by attending to record it. He admitted being near the scene but denied prior knowledge or participation.

Police found violent assault images and altered rap lyrics on his computer. The trial judge admitted that material, despite the absence of formal notice under the bad-character provisions of the Criminal Justice Act 2003. The appellant appealed, contending that the evidence was inadmissible or unfairly admitted and that the jury directions were inadequate. He also sought leave to challenge the admission of hearsay that he had recorded the attack.

1. Appeal dismissed. The violent images and rap lyrics were relevant to the live issue whether the appellant’s presence near the attack was innocent. The timing of the creation and later access of the lyrics affected their weight, not their relevance.

2. The material was not sufficiently connected with the facts of the charged offence to fall outside the bad-character code under section 98 of the Criminal Justice Act 2003. In particular, the lyrics had been created three months before the attack and did not supply a motive for it. That conclusion did not prevent admission through section 101(1)(d).

3. The evidence was admissible under section 101(1)(d) because it bore on an important issue between the prosecution and the defendant: whether his asserted presence was innocent. It showed an interest in violent images and in violence occurring on his birthday, but did not show a propensity to commit the violent offence charged.

4. Although the material was capable of arousing an emotive response, it was important evidence on the explanation for the appellant’s presence. A properly directed jury could assess it in the context of the whole case. Its admission therefore did not have the adverse effect on trial fairness required for exclusion under section 101(3).

5. The prosecution’s failure to give formal notice caused no prejudice because its opening note made clear its intention to rely on the material. Notice should nevertheless identify the proposed statutory gateway so that the admissibility issue is properly addressed.

6. The summing up was inadequate. The judge should have told the jury that the material could be used only to counter innocent presence, not as propensity evidence, and warned against attaching undue weight or treating it as proof of guilt. Applying the approach in R v Campbell [2007] EWCA Crim 1472, the omission did not render the conviction unsafe. The evidence’s relevance was apparent by logic and common sense, and the other evidence against the appellant was compelling.

7. The proposed hearsay ground was not arguable. Leave to appeal on that ground was refused.

• Court of Appeal (Criminal Division) The appellant’s appeal against conviction was dismissed; his further application for leave to appeal on a hearsay ground was refused.
• Crown Court at Reading On 8 May 2006, the appellant was convicted by a jury of causing grievous bodily harm with intent and was sentenced to two years’ detention in a young offender institution.