Assani, R v

Under Criminal Justice Act 2003, the gateways for correcting a false impression or responding to an attack on character permit only prosecution evidence. A defendant seeking to adduce a co-defendant’s bad character must therefore rely on the co-defendant gateway, which requires substantial probative value on an important issue between them.

In assessing alleged propensity, the age at the earlier incident, its remoteness, its nature and the absence of later offending may mean that the evidence lacks probative value. For murder minimum terms, an intention to kill is not an aggravating feature: its absence is a mitigating feature under Schedule 21. A minimum term must reflect the actual degree of premeditation and the relevant aggravating circumstances.

The appellant was convicted at Nottingham Crown Court of murder and sentenced to life imprisonment with a minimum term of 20 years. He appealed against conviction and sentence.

At a joint trial, a co-defendant was charged with perverting the course of justice. The appellant sought to adduce evidence that the co-defendant had, aged about 14, struck a man with a shovel. He contended that it countered evidence of the co-defendant’s non-violent character and supported the possibility that the co-defendant had committed the murder. The trial judge excluded it.

The appeal raised whether the evidence was admissible through the false-impression or character-attack gateways in the Criminal Justice Act 2003, and whether the 20-year minimum term was excessive.

1. The appeal against conviction was dismissed. The evidence of the co-defendant’s alleged violent act in 1993 was not admissible through section 101(1)(f). The trial judge was entitled to conclude that no false impression requiring correction had been created and that the isolated, vague and remote incident lacked probative value. The co-defendant’s young age at the time and the subsequent absence of convictions suggesting violent propensity were material considerations.

2. Section 105(7) provided a complete additional answer. The false-impression gateway admits only prosecution evidence. Evidence in a prosecution witness’s statement did not become prosecution evidence merely because the appellant wished to elicit it in cross-examination, particularly where the prosecution did not seek to rely on it. The same restriction applied to the character-attack gateway by section 106(3).

3. Bad-character evidence which one defendant seeks to adduce against a co-defendant must be advanced under section 101(1)(e). That gateway requires substantial probative value on an important issue between the defendants. Evidence which lacked probative value for the false-impression gateway could not satisfy that higher threshold. The judge’s refusal was also correct under section 101(1)(g), having regard to fairness, remoteness and quality of the evidence.

4. The appeal against sentence was allowed. The appropriate Schedule 21 starting point was 15 years. Although revenge and the appellant’s conduct justified an increase, the judge wrongly treated an intention to kill as aggravating. Schedule 21 treats the absence, rather than the presence, of such intention as mitigating. The judge also overstated premeditation: the victim’s arrival was unexpected and the knife was picked up at the house.

5. The 20-year minimum term was manifestly excessive. It was quashed and replaced with a minimum term of 17 years.

• Court of Appeal (Criminal Division) — In [2008] EWCA Crim 2563, dismissed the appeal against conviction but allowed the appeal against sentence, substituting a 17-year minimum term.
• Crown Court at Nottingham — convicted the appellant of murder and imposed life imprisonment with a 20-year minimum term.