Ferdhaus, R. v

A trial judge must give directions on bad-character evidence which are appropriate to the issues and evidence in the particular trial. There is no rigid formula. The directions must make clear that any proved propensity is only one factor, to be assessed with all the evidence, and cannot itself establish guilt.

The adequacy of a summing-up is assessed as a whole. An unfortunate interruption, a failure to repeat an earlier adequate direction, or the omission of matters which are obvious to a jury, does not undermine the safety of a conviction unless it causes material unfairness or confusion.

The appellant was convicted at Croydon Crown Court of five counts of conspiracy to defraud arising from fraudulent insurance claims. He and a co-defendant advanced mutually accusatory defences.

At the co-defendant’s request, the trial judge admitted evidence of the appellant’s alleged previous fraudulent insurance claims under section 101(1)(e) of the Criminal Justice Act 2003. The admissibility ruling was no longer challenged. The appeal concerned only whether the summing-up gave adequate and sufficiently clear directions on that evidence, particularly after an interruption in the summing-up and alongside a full good-character direction.

1. Appeal dismissed. The directions on bad character were not the best that could have been formulated, but they were adequate and did not affect the safety of the convictions.
2. The judge correctly directed the jury that, if they found the alleged previous conduct proved, it could be taken into account as evidence of a propensity to commit fraud. It was only one factor. The jury could not infer guilt merely because the appellant had acted fraudulently in the past, and had to assess its significance with all the evidence.
3. There was no mandatory formula for a direction on bad character. The judge could have reminded the jury that the previous allegations had not led to a police investigation, charge or conviction and remained disputed. Those matters were, however, obvious and were matters for common sense and counsel’s submissions. Their omission did not vitiate an otherwise adequate direction.
4. The interruption between the two days of the summing-up was unfortunate. It did not oblige the judge to repeat the earlier direction on the day the jury retired. The interruption did not create unfairness or confusion sufficient to affect the verdict.
5. The coexistence of a full good-character direction and the bad-character direction caused no real prejudice. If the jury found the bad-character allegations proved, the judge could have qualified the relevance of otherwise good character. Instead, the appellant retained the benefit of the full good-character direction. In light of the powerful evidence, the convictions were safe.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction: [2010] EWCA Crim 220.
• Crown Court at Croydon: Convicted the appellant of five counts of conspiracy to defraud.