Reid, R. v

Under section 100(1)(b) of the Criminal Justice Act 2003, third-party bad-character evidence is admissible only if it concerns a matter in issue of substantial importance and has substantial probative value in relation to that matter. Substantial probative value requires more than trivial value.

Convictions of co-conspirators for separate conspiracies will not ordinarily assist on the issue whether the defendant participated in the charged conspiracy merely because the defendant was not proved to have participated in the others. Where the evidence is, at most, marginally relevant and does not assist on the central evidential issue, it does not satisfy the statutory threshold.

The appellant was convicted at Bristol Crown Court, by an 11 to 1 majority, of conspiring to supply class A drugs arising from the conspiracy of 16 April 2009. He was sentenced to six and a half years’ imprisonment.

The prosecution case was circumstantial. It alleged that the appellant owned and used an unregistered prepaid telephone which acted as an intermediary between his brother and the other conspirators. The appellant denied ownership. He sought to adduce the convictions of co-conspirators for two other drug conspiracies, contending that they bore on his relationship with those persons and on allegedly threatening calls made to him.

The trial judge refused admission. The issue on the appeal was whether the convictions were admissible as third-party bad-character evidence under section 100(1)(b) of the Criminal Justice Act 2003.

1. Appeal dismissed. The trial judge correctly refused to admit the co-conspirators’ convictions for the other conspiracies.

2. Section 100(1)(b) of the Criminal Justice Act 2003 raised two cumulative requirements. The evidence had to relate to a matter in issue which was of substantial importance in the case as a whole. It also had to have substantial probative value in relation to that matter. The court accepted that, consistently with Apabhai [2011] EWCA Crim 917 and Scott [2005] EWCA Crim 2457, substantial meant more than trivial probative value.

3. The court doubted that the first requirement was met. The fact that the appellant was not shown to have participated in other conspiracies did not show that he was not a party to this conspiracy. The prosecution had not accepted that he was uninvolved in one of the other conspiracies, and the other participants were not all involved in the same combinations of offences.

4. In any event, the evidence had no substantial probative value. At its highest, it bore only marginally on the relationship between the appellant and the co-conspirators. It did not assist with the central issue, namely whether the appellant owned the intermediary telephone at the material time.

5. The observations in Brewster and Cromwell [2010] Cr App R 120, concerning assessment of bad-character evidence relevant to a witness’s credibility, were not directly applicable because no issue of witness credit arose.

• Court of Appeal (Criminal Division): The appellant’s conviction appeal was dismissed: [2011] EWCA Crim 2162.
• Crown Court at Bristol: The appellant was convicted on 31 January 2011 of conspiracy to supply class A drugs and sentenced on 12 February 2011 to six and a half years’ imprisonment.