Dhooper, R. v

When determining whether to exclude a defendant’s bad-character evidence for unfairness, the court must give particular and reasoned consideration to the interval between the earlier conduct and the charged offences under Criminal Justice Act 2003, section 101(4). A substantial interval may reduce the evidence’s probative significance and impair the defendant’s ability to investigate, explain or answer the earlier allegation.

A bare assertion that the interval has been considered is insufficient where the risk to fairness is real. If the judge omits that material consideration, the ordinary appellate restraint concerning admissibility rulings does not apply. The conviction is unsafe unless the appellate court is satisfied that a properly directed judge would inevitably have admitted the evidence.

The appellant was convicted at Wolverhampton Crown Court of manslaughter, assault occasioning actual bodily harm and false imprisonment. The manslaughter count concerned injuries inflicted on Gurdev Singh, whose death the Crown said was accelerated by the assault. The other counts concerned an alleged later assault and detention of Shamsher Uppal.

At trial, the prosecution was permitted to adduce the appellant’s 1994 manslaughter conviction and material about that offence as bad-character evidence. It relied on alleged similarities between the earlier offence and the offences charged. The appellant appealed against conviction, principally contending that admission of the old conviction was unfair.

The central issue was whether the judge had properly applied sections 101(3) and 101(4) of the Criminal Justice Act 2003 when admitting evidence relating to conduct 13 years earlier.

1. Appeal allowed. The court quashed all convictions because the ruling admitting the appellant’s previous manslaughter conviction rendered the verdicts unsafe.

2. Section 101(3) of the Criminal Justice Act 2003 required the judge to exclude bad-character evidence if its admission would have such an adverse effect on the fairness of the proceedings that it ought not be admitted. In making that assessment, section 101(4) required particular regard to the time between the earlier conduct and the offences charged.

3. The judge had referred generally to probative value and prejudicial effect, but had not addressed section 101(4). He therefore failed to consider the 13-year interval in the required way. The interval bore both on the continuing significance and probative value of the old offence, and on the appellant’s practical ability to explain and deal with the circumstances of that offence.

4. Where the interval is substantial and creates a real risk of unfairness, it is not enough simply to assert that it has been considered. The judge must grapple with its significance and explain why admission nevertheless remains fair. This omission was a failure to take account of a material consideration.

5. The court accepted that the appellate restraint described in R v Hanson [2005] 2 Cr App R(S) 305 also applies to bad-character rulings not based on propensity. But that restraint did not apply because the judge had not directed himself correctly. Nor was the court satisfied that a properly directed judge would inevitably have admitted the evidence.

6. The court did not determine the remaining objections to the previous-conviction evidence or to interview summaries. It expressed only provisional concern that the interviews may have been used to discredit the appellant, rather than for their admitted purpose, and may have distorted the trial. A fresh indictment was directed, with re-arraignment within two months and retrial at Birmingham Crown Court.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the convictions, and directed a retrial on a fresh indictment.
• Wolverhampton Crown Court: On 27 March 2007, convicted the appellant of manslaughter, assault occasioning actual bodily harm and false imprisonment. On 4 June 2007, imposed imprisonment for public protection with a minimum term of 42 months for manslaughter and false imprisonment, concurrently.