Singh, R. v

For the exclusion in section 98 of the Criminal Justice Act 2003, evidence must have a sufficient connection with the alleged offence. Relevance alone does not determine the issue. A close nexus in time and subject matter may mean that evidence of surrounding conduct, possessions or finances has to do with the alleged facts rather than constituting bad-character evidence.

Such evidence may properly be used to test a defendant’s asserted state of mind where that state of mind is central to the charge. A special bad-character direction is not required where the evidence falls outside the statutory definition.

The appellant was convicted at Harrow Crown Court of possessing criminal property and received a community order. The prosecution case was that she used cash stained with security dye from a robbery committed by her partner, and that she knew or suspected its criminal origin.

At trial, the judge permitted cross-examination about cash, expensive possessions, a BMW and the partner’s lifestyle. The appellant appealed against conviction, contending that this was bad-character evidence governed by section 98 of the Criminal Justice Act 2003. She also renewed an application for leave to advance a complaint about the summing-up. The central issue was whether the impugned evidence had to do with the facts of the alleged offence.

1. The appeal on ground 2 was dismissed. The renewed application for leave to argue ground 3 was refused.

2. Section 98 of the Criminal Justice Act 2003 excludes from bad-character evidence material which has to do with the alleged facts of the offence. The court accepted that evidence which is merely relevant to an offence is not necessarily within that exclusion. The required connection is narrower and depends on a sufficient nexus with the alleged offence.

3. The court distinguished R v Tirnaveanu [2007] 2 Cr App R 23. In that case the proposed evidence concerned separate instances from those charged. Here the evidence concerned cash received from the appellant’s partner, the period surrounding the charged conduct, the BMW, and circumstances bearing on the origin of the cash. It therefore had a close nexus with the facts alleged.

4. The cross-examination was not admitted simply to portray the partner adversely. Its purpose was to test the appellant’s account that she believed he was a caretaker and, consequently, her asserted lack of knowledge or suspicion that the cash was criminal property. That was a central factual issue for the jury. The evidence was accordingly admissible without an application under the statutory bad-character regime.

5. The complaint about the summing-up depended on the incorrect premise that the evidence was bad-character evidence. No special direction was required on that basis, and no such direction had been sought at trial. The summing-up was balanced and comprehensive.

• Court of Appeal (Criminal Division) — in [2010] EWCA Crim 591, dismissed the appeal against conviction and refused renewed leave on the further ground.
• Harrow Crown Court — on 16 December 2008, convicted the appellant of possessing criminal property; on 20 January 2009, imposed a community order.