Jarvis, R. v

Bad-character evidence capable of showing a propensity to be untruthful is not confined to prior lies given as a witness. A proven pattern of untruthful commercial dealings may be relevant where it has substantial probative value on an important issue between defendants.

Although the statutory exclusion discretion does not apply to a co-defendant’s gateway, the trial judge retains procedural control over a late application. Under the Criminal Procedure Rules, permission may be refused where lateness would prevent the affected defendant from dealing fairly with the evidence.

The appellant was convicted of stealing four items of jewellery entrusted for sale. His co-accused, Petty, was acquitted. Each defendant blamed the other for the missing jewellery, while the appellant also made extensive allegations of dishonesty against the owner.

During the appellant’s evidence, the Recorder admitted bad-character evidence on the co-accused’s application. It included evidence that, while a director of London Goldsmiths Ltd, the appellant had misused a company credit card and acted dishonestly in dealings with customers. The application concerning the company evidence was made late after the Crown, though previously permitted to rely on it, elected not to do so.

The appeal challenged the admissibility of that evidence and the Recorder’s decision to permit the late application.

1. Appeal dismissed. The conviction was safe. The disputed evidence was properly admitted and, in any event, the remaining evidence against the appellant was overwhelming.

2. The court rejected the submission that propensity to untruthfulness under Chapter 1 of Part 2 of the Criminal Justice Act 2003 means only a propensity to lie in the witness box. A history of untruthful dealings with others, including serial lying, may be relevant bad-character evidence if it has substantial probative value on an issue between the relevant parties (para [30]).

3. The London Goldsmiths evidence satisfied gateway (e) in section 101. It had substantial probative value on the important issue of which of the two defendants retained, and inferentially stole, the jewellery. It also tended to show untruthfulness, and the condition in section 104(1) was met because the appellant’s case undermined the co-accused’s case (para [31]).

4. Section 101(3) did not give a discretion to exclude evidence admitted through gateway (e). Nor is there a general discretion to stop one defendant adducing admissible evidence against another merely because prejudice exceeds probative value: R v Miller (1952) 36 Cr App R 169 (para [33]). Nevertheless, Part 35, paragraph 8 of the Criminal Procedure Rules gives the judge a wide discretion over a late application. Permission may be refused if the target would be unfairly unable to meet the evidence. On these facts, the appellant was not taken by surprise and was able to answer the evidence (paras [34]-[36]).

5. Once permission had been granted, section 104(2) allowed the co-accused both to cross-examine the appellant and to call supporting evidence in his own case (para [39]). The court ordered the appellant to pay the Crown’s costs of £1,000.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed. The conviction was held safe.
• Crown Court: The Recorder admitted the co-accused’s bad-character evidence and the appellant was convicted; the co-accused was acquitted.