Plaza, R. v

Under section 101(3) of the Criminal Justice Act 2003, admissible bad-character evidence must be excluded only where its admission would so adversely affect the fairness of the proceedings that it ought not be admitted. The trial judge must assess its real probative value against the risk of prejudice. Powerful evidence of a relevant propensity is less likely to make a trial unfair.

The assessment is principally for the trial judge. An appellate court will not interfere unless satisfied that the judge’s decision was clearly wrong. Clear jury directions on the limited use of the evidence may prevent unfair prejudice.

The appellant was convicted at Kingston upon Thames Crown Court of conspiracy to supply cocaine and sentenced to 14 years’ imprisonment. The prosecution alleged that he participated in a cocaine-importation and supply operation based at a flat in Shepherds Bush. His case was that he was innocently associated with the others present.

At trial, the judge admitted evidence of the appellant’s Dutch conviction for importing cocaine under section 101(1)(d) of the Criminal Justice Act 2003. The appellant appealed against conviction by leave of the single judge. He contended that, although relevant, the conviction’s prejudicial effect made the trial unfair under section 101(3).

1. Appeal dismissed. The conviction was safe. The judge was entitled to admit the Dutch conviction as evidence relevant both to a propensity to traffic in drugs and to the defence of innocent association.

2. Section 101(3) of the Criminal Justice Act 2003 protects the fairness of the proceedings. It prevents admission of bad-character evidence unless its real probative value is sufficient to justify the accompanying risk of prejudice. Evidence of slight or peripheral significance may render a trial unfair. Conversely, the stronger its evidential force, the less likely its admission will have that effect.

3. The assessment was for the trial judge, based on the particular case. The Court of Appeal would intervene only if the judge’s decision was clearly wrong. Here, the earlier conviction had powerful probative force. It was closely relevant to the alleged drug-trafficking activity and rebutted the appellant’s asserted innocent presence at the flat.

4. There was no unfairness merely because the appellant chose to dispute the facts underlying the Dutch conviction and gave evidence to explain it. The jury was entitled to take that evidence into account when assessing his credibility. The summing-up supplied proper safeguards: the jury could not use the conviction unless sure that the appellant had committed the earlier offence; they were to decide its relevance for themselves; and they were not to convict simply because of it.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed: [2013] EWCA Crim 501.
• Crown Court at Kingston upon Thames: On 5 April 2012, the appellant was convicted of conspiracy to supply cocaine. On 9 May 2012, he was sentenced to 14 years’ imprisonment.