Rosato, R. v

In a cut-throat defence, evidence of a defendant’s bad character may have substantial probative value regarding reliability even though the prior misconduct does not itself amount to a propensity for untruthfulness. Under Criminal Justice Act 2003, section 101(1)(e), the question is whether the misconduct could fairly assist the jury in assessing whether the defendant would lie to protect himself.

A direction which frames the issue too narrowly may nevertheless leave a conviction safe where, in practical terms, it could not have affected the jury’s assessment and the jury was properly cautioned. Fresh evidence from a co-defendant should not be admitted where it is not credible and cannot provide a ground for allowing the appeal.

The appellant was convicted at the Central Criminal Court of arson committed at the premises of his employer. He and his co-defendant, Groves, ran mutually accusatory defences. The prosecution case was that they acted together in a criminal joint enterprise to damage the premises and set the fire.

The appellant sought to challenge the admission, at Groves’s instance, of his previous convictions for dishonesty. He also criticised the judge’s direction on their use. In addition, he applied to adduce Groves’s later statement that the appellant had not participated in starting the fire. The central issues were whether the bad-character evidence was properly admitted, whether the summing-up rendered the conviction unsafe, and whether the fresh evidence should be received.

1. Appeal dismissed. The court granted leave to appeal notwithstanding the delay, which was not the appellant’s fault. It refused to admit Groves’s proposed fresh evidence under section 23 of the Criminal Appeal Act 1968. The statement could not afford a ground for allowing the appeal and Groves was not seriously capable of belief as a witness about events at the premises. It did not undermine the ample evidential basis for the jury’s conclusion that the arson was committed in a joint enterprise.

2. The judge had correctly admitted the appellant’s previous convictions under section 101(1)(e) of the Criminal Justice Act 2003. Applying R v Lawson [2006] EWCA Crim 2572, the statutory gateway is not confined to prior offending that directly demonstrates a propensity to be untruthful. Other misconduct may have substantial probative value concerning a defendant’s reliability as a witness if a fair-minded jury could infer that the defendant would not scruple to lie for self-protection.

3. There was an important matter in issue between the co-defendants because the appellant’s evidence sought to place responsibility for the arson on Groves. Although the convictions were old and some were committed when the appellant was young, they disclosed a pattern of dishonesty which the jury could fairly bear in mind when assessing the appellant’s evidence against Groves. The late notification of the proposed cross-examination did not make the admission decision wrong.

4. The summing-up described the permissible use of the convictions too narrowly by requiring the jury to be satisfied that they showed a propensity for untruthfulness. However, the distinction between an established practice of lying and conduct showing a readiness to lie when expedient had no practical significance on these facts. The appellant had told lies directly concerning the offence, and the judge cautioned the jury to treat the previous convictions carefully and focus on the direct evidence. The direction therefore caused no unfairness and the conviction was safe.

• Court of Appeal (Criminal Division): Leave to appeal was granted despite the late application. The appeal against conviction was dismissed.

• Central Criminal Court: The appellant was convicted of arson on 8 May 2007 and sentenced on 25 June 2007 to three years’ imprisonment, less 34 days spent in custody.