Mitchell, R. v

For bad-character evidence to be admissible under section 101(1)(e) of the Criminal Justice Act 2003, the court must assess the factual elements which together amount to misconduct. The statutory assumption of truth under section 109(1) applies to each such element, including the alleged falsity of a previous similar explanation. That may give the evidence substantial probative value.

A judge must ensure that cross-examination on bad character remains within the scope of the ruling permitting it. Fresh allegations directed to propensity require proper procedural compliance. A judge should not cross-examine a defendant after prosecution cross-examination, since this may convey disbelief. Even where such errors occur, a conviction stands unless the verdict is unsafe.

The appellant was convicted at Inner London Crown Court of attempted murder after a police officer said that, during a pursuit, the appellant deliberately fired a loaded handgun at him. He was also convicted of firearms, drugs and bladed-article offences. The trial concluded on 24 March 2009.

On appeal, the appellant challenged the admission and subsequent use of evidence concerning an alleged prison incident involving plastic knives. He also complained that the trial judge had improperly cross-examined him after counsel had completed their questioning. The central issue was whether those errors rendered the convictions unsafe. He separately sought permission to appeal a sentence of 25 years’ imprisonment.

1. The appeal against conviction was dismissed. The court rejected the challenge to the original ruling admitting the prison-incident evidence. Under section 101(1)(e) of the Criminal Justice Act 2003, the issue of responsibility for the firearm was an important matter between the appellant and his co-defendant. The relevant misconduct comprised both the giving of an unusually similar explanation and the asserted falsity of that explanation. Section 109(1) required the judge, subject to section 109(2), to assume both factual elements true. On that footing the evidence had substantial probative value.
2. The court held that the subsequent cross-examination was impermissibly widened. It went beyond the ruling by advancing an unapproved allegation that the appellant had made plastic knives into weapons, in order to suggest a propensity to carry dangerous weapons. No proper application had been made for that use of the material. The court reaffirmed the importance of compliance with rule 8 of the Criminal Procedure Rules, particularly in a cut-throat defence.
3. The judge also went too far by questioning the appellant at length after the completion of re-examination. It is generally no part of a judge’s function to cross-examine a defendant after prosecution counsel has done so. The course risked giving the jury the impression that the judge disbelieved the appellant’s account.
4. Those two complaints were well founded, but the court’s jurisdiction was to decide whether the verdicts were safe. The evidence that the handgun had not accidentally discharged, coupled with the officer’s account that it was aimed and fired at him, made the case overwhelming. The irregularities did not render the verdict unsafe.
5. Permission to appeal sentence was refused. A 25-year sentence was not manifestly excessive. The appellant carried a loaded firearm, fled from police with it, cocked it and deliberately fired at a pursuing police officer from close range.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed and permission to appeal the 25-year sentence was refused: [2010] EWCA Crim 783.
• Inner London Crown Court: The appellant was convicted following a trial ending on 24 March 2009 and sentenced to 25 years’ imprisonment. No citation was stated in the judgment.