Ramirez, R. v

Where a co-defendant seeks to adduce bad-character evidence under section 101(1)(e) of the Criminal Justice Act 2003, notice and an application are required. A breach of the notice rules gives the trial judge a discretion to refuse the evidence where it causes unfairness, including deliberate manipulation of the trial process.

The decisive question is whether the defendant can still receive a fair trial. If there remain practical means to challenge the allegations, including cross-examination, calling evidence and reasonable time for further inquiries, late or absent notice will not necessarily require exclusion or discharge of the jury. The assessment is fact-sensitive.

The appellant was convicted of murder at the Central Criminal Court following a trial before HHJ Forrester and a jury. The prosecution alleged that he and his brother attacked the deceased with a brandy bottle after a dispute connected with drug dealing. A co-defendant, Day, admitted being present but blamed the appellant and his brother.

During Day’s evidence, he made fresh allegations of serious violence by the appellant without prior notice or an application to adduce bad-character evidence. The trial judge held retrospectively that the evidence would have been admitted under section 101(1)(e) of the Criminal Justice Act 2003, allowed the trial to continue, and offered reasonable time for further inquiries.

The appeal challenged whether that course rendered the trial unfair and the conviction unsafe.

1. Appeal dismissed. The conviction was safe. The trial judge was right to hold that Day’s evidence should have been the subject of notice and an application under section 101 of the Criminal Justice Act 2003, but that it would have been admissible under section 101(1)(e). It had substantial probative value on the important issue between the co-defendants: which account of the murder was true.

2. R v Musone [2007] 2 Cr.App.R 29 and R v Jarvis [2008] Crim LR 632 establish that breach of the notice requirements may justify refusal of bad-character evidence. The discretion arises under the rules made pursuant to section 111, and may be exercised for deliberate manipulation causing unfairness or where lateness leaves the affected defendant unable fairly to deal with the evidence.

3. The judge applied those principles in substance. Having concluded that the evidence satisfied the statutory gateway, he properly considered whether the appellant could still have a fair trial. He identified available means of answering the allegations: cross-examination, giving or calling evidence, admissions, and further inquiries for which reasonable time would be allowed.

4. Although the absence of notice caused some disadvantage, the appellant had not shown that additional notice would have enabled him to challenge Day’s allegations more effectively. He cross-examined Day, could have sought further time or recalled witnesses, and chose not to give evidence. The appellant was therefore not unfairly unable to meet the case.

5. Even if Day or his representatives had intended an ambush, that did not require exclusion on these facts once the judge had correctly concluded that the appellant could receive a fair trial. The court nevertheless warned that unnotified bad-character evidence in another case could require discharge of the jury, a retrial, and wasted-costs sanctions for deliberate manipulation of the rules.

• Court of Appeal (Criminal Division) — the appeal against conviction was dismissed: [2009] EWCA Crim 1721.
• Central Criminal Court — the appellant was convicted of murder after a trial before HHJ Forrester and a jury.