Brand, R. v

Bad-character evidence admitted through a statutory gateway may be left to the jury despite apparent reliability difficulties where it has significant probative value, the judge considers the fairness safeguard, and the jury receives an appropriate warning. Evidence is not bad character under Criminal Justice Act 2003 section 98 where it concerns the alleged facts of the charged offence. Such evidence is admissible if relevant, even if it is not direct evidence on consent.

On an appeal against sentence, the question is whether the total sentence is manifestly excessive, not whether the appellate court would have selected the same sentence. The sentencing court may mark a kidnapping element separately by a consecutive sentence where the total remains within the applicable range.

The appellant was initially tried at Cardiff Crown Court. He was convicted of theft, but the jury did not reach verdicts on kidnapping and rape. At a retrial before Newport Crown Court, he was unanimously convicted of kidnapping and rape and received a total of nine years’ detention in a Young Offender Institution.

His case was that the complainant had consented to sexual intercourse and had retained her handbag. The prosecution relied, among other matters, on evidence from Hayley Williams of threatening calls and messages by the appellant, and on the theft conviction concerning the complainant’s handbag.

On appeal, the issues were whether those two categories of evidence had been properly admitted and whether the total sentence was manifestly excessive.

1. Appeal dismissed. The court upheld the convictions and the total sentence of nine years’ detention in a Young Offender Institution.
2. The evidence of Hayley Williams was capable of admission as bad-character evidence through section 101 D of the Criminal Justice Act 2003. The telephone records disclosed apparent discrepancies, including calls which did not correspond with her account. However, she gave clear and unwavering evidence that the threatening conversations occurred. There was also material capable of explaining some discrepancies. The trial judge was entitled to conclude that reliability was for the jury, rather than a reason to exclude the evidence under section 101(3). Its significant probative value concerned the appellant’s state of mind. The judge had fairly directed the jury to approach it cautiously.
3. The earlier theft conviction was not bad-character evidence. Under section 98 of the Criminal Justice Act 2003, evidence which concerns the alleged facts of the charged offence falls outside the statutory definition. The theft was highly material to the competing accounts about the handbag, the parties’ conduct and state of mind after the alleged rape, and their credibility. It was not direct evidence on consent, but the summing-up did not treat it as such. It was relevant evidence admissible in the ordinary way. There was no proper basis to exclude it under section 78 of PACE.
4. The sentence was not manifestly excessive. The appellant had not merely abducted the complainant. She was taken to a dark and isolated place, another man was present in the car during the rape, she was abandoned afterwards, and her handbag was stolen. Those features justified a total sentence above the asserted eight-year starting point. Although a single sentence might have been possible, the judge was entitled to mark the kidnapping separately by a consecutive sentence. The total was comfortably within the guideline range.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction and sentence.
• Crown Court at Newport: following a retrial, unanimously convicted the appellant of kidnapping and rape and imposed a total of nine years’ detention in a Young Offender Institution.
• Crown Court at Cardiff: convicted the appellant of theft; the jury did not reach verdicts on the kidnapping and rape counts.