Director of Public Prosecutions v Chand

On an appeal by case stated, disagreement with a discretionary ruling is insufficient. The decision must be one which no reasonable tribunal could have reached, or otherwise disclose an error of law.

Bad character evidence may be admissible to establish propensity even where the central issue is identification. Its admission remains subject to the fairness safeguard in section 101(3) of the Criminal Justice Act 2003. A fact-finding court must assess identification evidence as a whole and is not bound by recognition evidence from police officers. Even if bad character evidence is admitted, it does not compel conviction.

The Director of Public Prosecutions appealed by case stated against the acquittal of Jason Chand by Bedfordshire Justices. The respondent had been charged with stealing a British Legion charity collection box. The prosecution relied principally on CCTV identification by two police officers who knew him.

Before trial, the District Judge excluded the respondent’s previous convictions under section 101(1)(d) and section 101(3) of the Criminal Justice Act 2003, considering that the convictions showed propensity but that admission would risk bolstering a weak identification case. The issues were whether that ruling and the subsequent acquittal were perverse.

1. The appeal was dismissed. Neither the District Judge’s exclusion of the bad character evidence nor the Justices’ acquittal was perverse.

2. The District Judge was entitled to conclude that the respondent’s convictions established a propensity to commit offences of the kind charged, notwithstanding that the disputed issue was identification. The relevance of propensity evidence is not excluded merely because the prosecution case turns on whether the defendant is the person shown on CCTV.

3. The District Judge was also entitled to exclude the evidence under section 101(3) of the Criminal Justice Act 2003. He had considered the guidance in R v Hanson, Gilmore and Pickston [2005] EWCA Crim 824, including the similarity of the previous and present offences, their respective gravity, and the strength of the prosecution case. His assessment that the CCTV identification case was weak and that the evidence might unfairly bolster it was a conclusion reasonably open to him.

4. The court hearing an appeal against such a discretionary ruling must not substitute its own view merely because it might have reached a different conclusion. Where the judge has directed himself correctly, intervention is justified only where the judgment is plainly wrong or the discretion was exercised unreasonably in the Wednesbury sense.

5. The Justices were entitled to assess the CCTV and recognition evidence as judges of fact. Recognition evidence from witnesses who know the defendant is admissible, but the tribunal must consider the evidence as a whole and decide whether guilt is proved beyond reasonable doubt. It is not required to accept police recognition evidence as determinative.

6. Even if the bad character evidence had been admitted, it would have strengthened the prosecution case but would not have obliged the Justices to convict. They could still have acquitted after giving the evidence appropriate weight.

• High Court (Administrative Court): Director of Public Prosecutions v Chand [2007] EWHC 90 (Admin) dismissed the appeal by case stated.
• Bedfordshire Justices: acquitted the respondent after the bad character evidence had been excluded.