Suleman v R.

Evidence of uncharged conduct may be admitted under section 101(1)(d) of the Criminal Justice Act 2003 where it contributes to a pattern capable of identifying the perpetrator. It need not establish a propensity to commit the charged offence. The court must distinguish that use from propensity reasoning and from cross-admissibility, which concerns the use of evidence supporting one charged count in support of another charged count.

An unnecessary or imperfect jury direction does not make convictions unsafe where the summing up, viewed as a whole, clearly directs the jury to the prosecution’s true case and causes no prejudice. Recordings used by a voice-comparison expert may be heard by the jury, but jurors must not substitute themselves for the expert.

Suleman v R. concerned an appeal against convictions for public nuisance by hoax emergency calls and multiple arsons directed at premises associated with the appellant’s family and its business. At Leicester Crown Court, the appellant was convicted on counts 1–5 and 7–12; he was acquitted on count 6.

The prosecution relied on the pattern formed by the charged fires, uncharged fires from 2007 to 2009, and hoax calls allegedly made from mobile telephones used by the appellant. The appeal challenged the admission and use of the earlier-fire evidence, the judge’s directions on propensity and cross-admissibility, disclosure, the treatment of a disputed burnt-carpet incident, and voice-comparison evidence. The central issue was whether any of those matters rendered the verdicts unsafe.

1. Appeal dismissed. The convictions were safe. The earlier fires were properly admitted under section 101(1)(d) of the Criminal Justice Act 2003 as evidence contributing to a pattern relevant to the identity of the fire-raiser. The evidence did not, viewed in isolation, establish that the appellant had a propensity to set fires.
2. The court applied the distinction explained in McAllister [2008] EWCA Crim 1544. Evidence of several allegations may strengthen the evidence on a particular count when viewed as a whole without being propensity evidence. The evidence of the 2007 and 2008 fires was therefore admissible to establish the alleged pattern and progression of offending, not to prove guilt of those earlier fires or a propensity to commit the 2009 offences.
3. Cross-admissibility concerns whether evidence supporting one count on an indictment may support another count. It is distinct from the initial decision whether non-indicted bad-character evidence passes a statutory gateway. The judge should consider, when required, whether evidence admitted for one purpose may properly be used for another. Use of bad-character evidence across separate counts remains subject to section 112(2).
4. The propensity direction was legally accurate but unnecessarily general and insufficiently tied to the evidence. Read with the summing up as a whole, however, it did not prejudice the appellant. The jury were plainly directed to the prosecution’s central case: whether the fires and hoax calls formed a pattern pointing to one perpetrator and to the appellant. The directions on the disputed burnt-carpet incident adequately left the factual issue and its consequences to the jury.
5. There was no basis to conclude that non-disclosure or the refusal to tender additional police witnesses affected trial fairness. The defence criticisms of the investigation were fully explored before the jury, and no further material supporting the allegation of bias had emerged.
6. The jury could hear the recordings relied on by the voice expert, consistently with R v Bentum [1989] 153 JP 538, but could not act as their own voice-identification experts. The directions properly confined the recordings to assessing the expert evidence within the wider circumstantial case.

Obiter: the court assumed that the pre-2009 fire evidence was bad-character evidence rather than evidence having to do with the alleged facts of the charged offences. It also stressed the value of express, preferably written, directions on the permitted use of such evidence before counsel address the jury.

• Court of Appeal (Criminal Division): In Suleman v R. [2012] EWCA Crim 1569, dismissed the appeal against conviction.
• Leicester Crown Court: Following trial before HHJ Simon Hammond, the appellant was convicted of public nuisance and arson on counts 1–5 and 7–12, and acquitted on count 6.