Braithwaite v R.

Under Criminal Justice Act 2003, section 100, a non-defendant’s bad character evidence must have substantial probative value on a matter in issue of substantial importance, unless another statutory route applies. The court must assess the actual evidence relied on, rather than assume that an unproved allegation is true.

An internal police report recording an unsupported allegation, investigation or police suspicion is not evidence that the witness committed the alleged conduct. It will ordinarily have no, or insufficient, probative value. Section 109 does not alter that conclusion, since its truth assumption applies only after the material is evidence of the alleged conduct.

The appellant was convicted at Snaresbrook Crown Court of murder and sentenced to life imprisonment with a minimum term of 19 years. His defence was that the deceased and members of the deceased’s group had aggressed against him, and that the fatal stabbing occurred when he disarmed the deceased and defended himself.

Several Crown witnesses from that group had convictions, cautions or penalty notices for violent or disorderly conduct. The trial judge admitted that material but refused to admit internal CRIS police reports recording unproved allegations and investigations concerning some witnesses. The appellant appealed against conviction on the basis that the reports should have been admitted as non-defendant bad character evidence. He also appealed the minimum term.

1. The appeals against conviction and sentence were dismissed. The judge correctly refused to admit the CRIS material under section 100 of the Criminal Justice Act 2003.

2. Where important explanatory evidence and party agreement are absent, section 100 requires an assessment of the issue to which the evidence relates, the substantial importance of that issue in the case as a whole, and whether the evidence has substantial probative value on it. The relevant issues here were the witnesses’ propensity for street aggression and their credibility. Those issues were substantially important, but the excluded reports did not substantially prove either matter.

3. The statutory assumption in section 109 that evidence is true does not transform a complaint into evidence that the alleged conduct occurred. The CRIS reports established at most that complaints had been made or that the police had investigated or suspected a witness. They were, at best, hearsay. The complainants’ failure to support allegations, and decisions not to pursue them, further reduced any probative value. In several instances there was no identification of the witness as the offender.

4. Bovell and Dowds [2005] EWCA Crim 1091 had sounded an important caution about bare and withdrawn allegations. The present court explained that different evidence, such as a live witness with direct evidence of similar unprovoked attacks, might in an appropriate case be capable of substantial probative value. That was not the evidence sought here.

5. Permitting cross-examination founded on the reports would wrongly give unproved allegations apparent authority. If denied, the questions would not be evidence and might nevertheless prejudice the jury’s assessment of the witness. In any event, the conviction was safe because admissible evidence already showed violent propensity within the group, and there was compelling independent evidence against the appellant.

6. On sentence, the applicable statutory starting point was 15 years. Carrying a knife to the scene was serious aggravation, and the court also regarded the offence as a premeditated revenge attack. The 19-year minimum term disclosed no error.

• Court of Appeal (Criminal Division). In Braithwaite v R., [2010] EWCA Crim 1082, the court dismissed the appeals against conviction and sentence.

• Snaresbrook Crown Court. The appellant was convicted of murder and received the mandatory sentence of life imprisonment with a minimum term of 19 years.