Hussain, R. v

An unproved criminal charge is not misconduct and cannot itself be admitted as bad-character evidence under the Criminal Justice Act 2003. A conviction is evidence of misconduct, rather than misconduct itself.

Evidence of a defendant’s belief about a co-accused’s past conduct may nevertheless be admissible independently of the bad-character regime where it has a factual foundation and bears on duress. It may assist in assessing the genuineness and reasonableness of the belief and response. Duress fails where the defendant could safely avoid committing the offence, or voluntarily associated with criminals despite foreseeing the risk of violent compulsion.

Mohammed Hussain and Forid Miah were tried for attempted robbery of an amusement arcade where Hussain worked. Hussain denied participation and alternatively contended that Miah had compelled him to assist under duress.

The Recorder admitted Miah’s conviction for assault occasioning actual bodily harm, but refused to admit evidence that Miah had earlier been charged and tried for murder. Hussain appealed, contending that the exclusion prevented him from establishing his belief in Miah’s capacity for violence and therefore his defence of duress.

The central issues were whether that material was admissible otherwise than as bad-character evidence, and whether its exclusion rendered the conviction unsafe.

1. The appeal was dismissed. The Recorder had excluded evidence which, if advanced on the correct basis, ought to have been admitted. The omission did not render the conviction unsafe because the defence of duress could not properly have succeeded on the evidence.

2. Under section 98 of the Criminal Justice Act 2003, bad character concerns evidence of misconduct or a disposition towards misconduct. Misconduct is the commission of an offence or other reprehensible behaviour. An unproved charge is not conduct and cannot itself establish bad character. Miah’s conviction established misconduct only to the extent of the assault occasioning actual bodily harm.

3. Hussain was entitled to give evidence of what he believed Miah had done or was capable of doing. If there was evidence giving that belief a factual foundation, it was relevant independently of the bad-character provisions. It could bear on the truthfulness of the asserted belief, the reasonableness of a belief in immediate or near-immediate death or serious injury, and the reasonableness of acting as alleged.

4. Applying the four-question duress framework in R v Hasan [2005] UKHL 22, the court held that the evidence was incapable of overcoming the third and fourth questions. Hussain had ample opportunity to approach the authorities and avoid participation without harm. He also continued voluntarily to associate with Miah after learning of the planned robbery, although he foresaw, or at least ought reasonably to have foreseen, pressure to assist.

5. The court therefore held that duress was negated. The conviction remained safe despite the mistaken exclusion of the evidence.

• Court of Appeal (Criminal Division) Dismissed Hussain’s appeal against conviction: [2008] EWCA Crim 1117.
• Trial before the Recorder The appellant was tried for attempted robbery with Miah. The Recorder admitted Miah’s assault conviction but excluded evidence of the earlier murder charge as bad-character evidence.