Miller v R

Under Criminal Justice Act 2003 section 100, credibility may be an issue of substantial importance. Evidence of a witness’s bad character must nevertheless be important explanatory evidence or have substantial probative value on such an issue.

Unproved allegations of serious offending, which the cross-examining party does not intend or is unable to prove if denied, ordinarily cannot satisfy either gateway. Permitting speculative questions in those circumstances creates unfair prejudice and undermines the statutory purpose of preventing insinuation. An erroneous ruling will not render a conviction unsafe where firm and adequate directions require the jury to disregard the allegations, and the remaining case is strong.

After a jury trial before HHJ Baker QC at St Albans Crown Court, Jonathan William Miller was convicted of possessing Class A and Class C drugs with intent to supply and of possessing criminal property. His defence was that drugs and cash found in his room had been placed there by his friend, Manny Clark.

Mr Clark gave evidence accepting responsibility for items in the room and saying that he had acted under threats from drug dealers. The prosecution was permitted to cross-examine him about untried allegations that he had conspired to supply drugs and a firearm, although it undertook to be bound by any denial.

The appeal challenged that ruling and the adequacy of the jury directions. The central issue was whether unproved allegations could properly be used as witness bad-character evidence under Criminal Justice Act 2003 section 100, and, if not, whether the convictions were unsafe.

1. Appeal dismissed. The judge should have refused permission to cross-examine Mr Clark about the untried drugs and firearms allegations. The convictions nevertheless remained safe.

2. Credibility can be a matter of substantial importance under Criminal Justice Act 2003 section 100(1)(b). Bad-character material may also be important explanatory evidence if it exposes a witness’s motive. The statutory gateways require more than a speculative assertion.

3. The prosecution had not proved, and did not intend to prove if denied, that Mr Clark was guilty of the allegations. His alleged guilt was therefore incapable of supplying important explanatory evidence or substantial probative value. The proposed motive depended on proving that guilt. The questioning was the kind of speculative insinuation which section 100 was intended to prevent.

4. Questioning designed to elicit an admission of otherwise unprovable bad behaviour will be rare and confined, for example, to discrete details of admitted misconduct. If an accusation is denied and remains unproved, the jury requires a specific direction that the question does not assist the prosecution case.

5. Here, the summing-up repeatedly directed the jury to disregard the allegations, stressed that they were unsupported and required fair assessment of Mr Clark. Those directions removed any unfair taint. Given the strength of the remaining evidence, there was no doubt that the verdicts were safe.

• Court of Appeal (Criminal Division): In Miller v R [2010] EWCA Crim 1153, dismissed the appeal. Although the trial judge erred in permitting the disputed cross-examination, the convictions were safe.
• Crown Court at St Albans: HHJ Baker QC and a jury convicted the appellant on 23 June 2009 of drug-supply and criminal-property offences.