Kane, R. v

Bad-character evidence under section 101(1)(d) of the Criminal Justice Act 2003 must be directed to a legitimate and identified matter in issue. A propensity to commit offences of the kind charged cannot be replaced by a general allegation of criminality or association with criminals.

Evidence with no proper individual relevance does not become admissible merely because it is presented cumulatively. Where extensive, weakly probative material invites guilt by association and creates serious prejudice, its admission may deny the defendant a fair trial and render the conviction unsafe.

The appellant pleaded guilty at Bournemouth Crown Court to offences involving criminal property, fraud and money laundering. He was tried on a remaining count of blackmail, alleged to arise from threatening telephone calls and messages demanding payment from a young woman.

After the guilty pleas, the trial judge refused severance and admitted extensive purported bad-character evidence under section 101(1)(d) of the Criminal Justice Act 2003. It concerned, among other matters, the appellant’s alleged links with drugs, cash, travel, and people with criminal convictions. He was convicted of blackmail.

The appeal challenged the refusal of severance, the admission of that evidence, and the adequacy of the summing-up. The central issue was whether the bad-character material had a proper and fair evidential role in determining the blackmail charge.

1. Appeal allowed; conviction quashed. The court could not regard the blackmail conviction as safe. The admission and treatment of the purported bad-character evidence deprived the appellant of a fair trial.

2. The prosecution had not identified how the extensive material was admissible through section 101(1)(d) of the Criminal Justice Act 2003. Under section 103, the relevant issue was a propensity to commit offences of the kind charged, namely blackmail. It was not a general propensity to commit crime. The appellant’s contacts with persons who had convictions, and uncharged incidents concerning drugs or cash, did not demonstrate a propensity to commit blackmail.

3. The Crown’s reliance on the cumulative effect of individually irrelevant matters was misconceived. Material lacking legitimate bad-character relevance does not acquire it by aggregation. The proposed use of the evidence invited the jury to infer guilt from the appellant’s alleged criminal associations, which is not a permissible basis for criminal liability.

4. The trial judge’s brief ruling did not identify a proper statutory basis for admission or confront the overwhelming prejudicial effect of the evidence. The summing-up gave the jury no adequate guidance on how to evaluate the material, whether they had to be sure of its contents, or the limited use of propensity evidence. The evidence was instead presented as an undifferentiated mass over much of a ten-day trial.

5. The court did not determine the severance ground. It observed that, once the bad-character basis for a joint trial fell away, there was a strong argument for severance after the guilty pleas. No retrial was ordered because the Crown did not seek one. A defendant’s costs order was made, with the amount to be assessed by the Registrar.

• Court of Appeal (Criminal Division) Allowed the appeal, quashed the blackmail conviction, and made no order for a retrial.

• Crown Court at Bournemouth The appellant pleaded guilty to several financial and money-laundering offences and was convicted after trial of blackmail. The trial judge refused severance and admitted extensive purported bad-character evidence under the Criminal Justice Act 2003.