Matthews, R. v

Where a defendant makes a serious and forensic attack on another person’s character, including an imputation that the person committed the offence, evidence of the defendant’s bad character may properly be admitted under Criminal Justice Act 2003, section 101(1)(g), provided admission does not adversely affect trial fairness under section 101(3).

In deciding whether third-party bad-character evidence has substantial probative value, the court must assess its nature, source and potential reliability. Hearsay is relevant to that assessment but is not automatically determinative. A vague, unproven and unsupported hearsay allegation may properly be excluded where it would generate a substantial satellite inquiry.

The appellant was convicted at Canterbury Crown Court of assault by penetration of a child under 13, contrary to section 6(1) of the Sexual Offences Act 2003, and was sentenced to 13 years’ imprisonment.

The prosecution alleged that he injured his 19-month-old partner’s child while she was in his care. The defence suggested that the child’s mother was responsible. Before trial, the judge made rulings on proposed bad-character evidence concerning both the mother and the appellant.

On appeal against conviction, the appellant challenged the handling of the hearsay and bad-character applications, the admission of evidence of his domestic violence, and the exclusion of other proposed evidence about the mother. The central issue was whether those rulings rendered the conviction unsafe.

Decision

1. The appeal against conviction was dismissed. None of the challenged evidential rulings rendered the conviction unsafe.

2. The judge was entitled to reserve her decision on whether hearsay evidence supporting the 2009 allegation against the mother should be admitted. Defence counsel knew that the ruling allowing an enquiry about the allegation did not extend to admitting evidence from the mother or grandmother of the other child. The ensuing forensic allegation that the mother was responsible for her baby’s injury was a serious imputation and engaged section 101(1)(g) of the Criminal Justice Act 2003.

3. Under section 101(3), the question was whether admission of the appellant’s bad character would adversely affect fairness. Given the nature of the attack on the mother, including reliance on her dishonesty convictions, admission of the appellant’s convictions and specified domestic-violence allegations was proportionate and necessary. The evidence was confined to specific incidents, answered by the appellant, and accompanied by adequate directions that it was not propensity evidence for the charged offence.

4. The proposed hearsay evidence about the 2009 allegation did not have substantial probative value. Applying the approach in R v Braithwaite [2010] EWCA Crim 1082, the court assessed the evidence’s nature and sources. The allegation was vague, disputed, unsupported by medical or independent evidence, and made by a young child who could later give no coherent account. It had also been investigated without action and would have created a significant satellite issue.

5. The excluded shoplifting evidence had little or no bearing on the issues. The complaint about evidence of the mother’s alcohol and cannabis use was peripheral because material about drug use and her depression was already before the jury. The case against the appellant was strong and compelling.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction.

• Canterbury Crown Court: before HHJ Williams, the appellant was convicted on 30 November 2012 of assault by penetration of a child under 13 and sentenced on 12 February 2013 to 13 years’ imprisonment.