Mullings v R

Evidence received after an alleged offence may be admitted for a confined, non-character purpose where it supports an inference about the defendant’s relevant knowledge or state of mind. A clear direction may prevent its misuse as evidence of gang membership or general bad character.

Evidence of a general disposition towards misconduct does not fall within section 98(a) merely because it is relevant to mens rea. The court stated obiter that a close temporal nexus with the alleged facts is required; otherwise the evidence is subject to the statutory bad-character gateways in the Criminal Justice Act 2003.

The appellant was convicted at Liverpool Crown Court before Langstaff J of possessing a firearm with intent to endanger life, contrary to section 16 of the Firearms Act 1968. The prosecution alleged that he participated with armed members or supporters of the Gooch gang in rival gang territory.

Letters received by the appellant in custody after the shooting expressed loyalty to the Gooch gang and hostility to the Doddington gang. The trial judge admitted them only as limited evidence relevant to what the appellant might have known when present in the rival territory, and directed the jury that they did not prove gang membership. The appeal challenged the admissibility of those letters and the adequacy of the directions.

1. Appeal dismissed. The letters were properly admitted for the limited purpose identified by the trial judge. They could support an inference that, through his association with persons committed to the Gooch gang’s objectives, the appellant knew the risk of being with such persons in rival territory. They could therefore assist the jury on whether he knew that members of the group were armed and prepared to fire.

2. On that confined use, the letters did not imply a disposition towards misconduct and were not bad-character evidence. Their post-incident receipt did not itself determine admissibility. The issue was whether the jury could infer relevant knowledge at the time of the alleged offence from the appellant’s association with the writers and the other evidence.

3. The court stated obiter that, if the letters had been adduced to show that the appellant shared the writers’ gang sympathies and so had a disposition towards misconduct, they would have been bad-character evidence. Such evidence did not have to do with the alleged facts merely because it was relevant to mens rea. A close temporal connection with those facts was required under section 98(a) of the Criminal Justice Act 2003. The post-incident letters lacked that connection and would instead require consideration through the section 101 gateways.

4. The court considered the hearsay point unresolved on the facts. It was arguable, consistently with Singh [2006] EWCA Crim 660, that statements not adduced for their truth could be used as circumstantial evidence of the recipient’s association with the writers.

5. The judge’s explicit direction prevented the jury from treating the letters as proof that the appellant belonged to a gang. It was neither confusing nor unfair. In light of the other evidence concerning the appellant’s friendship with an affiliated gang member and his presence in rival territory, the letters added little. No bad-character direction was required, and the conviction was safe.

• Court of Appeal (Criminal Division) — dismissed the appellant’s conviction appeal.
• Liverpool Crown Court — on 6 April 2009, convicted the appellant of possessing a firearm with intent to endanger life; on 7 April 2009, imposed six years’ detention in a young offender institution.