Elliott, R v

Evidence of a defendant’s gang affiliation may be admissible as bad-character evidence where it can assist the jury on a live issue, including possession of drugs or firearms. Experienced police officers may give evidence from their knowledge of gangs and their insignia; the jury assesses its weight.

Under Criminal Justice Act 2003 section 115, material expressing shared gang support is not hearsay where its authors neither represent facts or opinions nor seek to cause the recipient to believe or act on a representation. Relevant bad-character evidence should not be excluded merely because it is prejudicial. The question is whether its admission would adversely affect the fairness of the proceedings.

The applicant was convicted at the Central Criminal Court of possessing a shortened shotgun and a pistol with intent to endanger life, contrary to section 16 of the Firearms Act 1968, and of two counts of possessing cocaine with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971.

The prosecution relied on evidence of the applicant’s alleged affiliation with Peckham gangs to assist the jury in deciding whether he possessed drugs and firearms found in a store cupboard. The evidence included police gang evidence, photographs, and letters. Following refusal by a single judge, the applicant renewed his application for leave to appeal against conviction. The central issues were whether that evidence was admissible and whether its admission rendered the convictions unsafe.

1. The renewed application for leave to appeal was dismissed. The convictions were not arguably unsafe.
2. Evidence of the applicant’s alleged gang affiliation was capable of being relevant to an important matter in issue under section 101(1)(d) of the Criminal Evidence Act 2003. The jury had to decide whether the applicant possessed the drugs and firearms, particularly those in the store cupboard. Evidence that he belonged to a gang involved in drug crime and firearms could assist that inquiry by bearing on whether the items might instead have belonged to another person.
3. The trial judge properly admitted the evidence of the experienced police officer about local gangs and their insignia. Applying R v Hodges [2003] 2 Cr App R 15, an officer may give evidence based on personal experience and knowledge. The general character of the evidence and the officer’s lack of prior knowledge of one smaller gang affected weight, rather than admissibility. The evidence of the applicant’s letter, phone images, and prison correspondence was also capable of supporting an inference of affiliation.
4. The prison letters were not hearsay. Under section 115 of the Criminal Justice Act 2003, hearsay requires a representation of fact or opinion made with the relevant purpose. The letters expressed shared support for the gang. They were not representations intended to cause the applicant to believe a fact or act on its truth. Their contents could instead support an inference of shared gang involvement.
5. The evidence did not have such an adverse effect on the fairness of the proceedings that it ought to have been excluded under section 101(3) of the Criminal Evidence Act 2003. It was relevant to the central issue, was not unduly complex, and did not create a real danger of collateral distraction. In any event, the remaining evidence connecting the applicant to the drugs, and inferentially to the firearms, was strong.

• Court of Appeal (Criminal Division): The renewed application for leave to appeal against conviction was dismissed: [2010] EWCA Crim 2378.
• Central Criminal Court: The applicant was convicted on 17 September 2009 of two firearms offences and two offences of possessing cocaine with intent to supply.
• Single judge: Permission to appeal against conviction was refused, leading to the renewed application.