Dizaei v R.

Under Criminal Justice Act 2003, section 100 requires a fact-specific assessment of the substantial probative value and overall importance of a non-defendant’s bad-character evidence. The assumption of truth under section 109 applies only at the admissibility stage. It does not make an allegation automatically admissible.

There is no separate discretion to exclude otherwise admissible non-defendant bad-character evidence to prevent satellite litigation. The risk of distraction, however, is relevant when deciding whether the statutory conditions are met. A wrongful exclusion will not make a conviction unsafe where the evidence would add little to material already before the jury and independent evidence strongly supports the verdict.

The appellant, a senior police officer, was convicted at a retrial in the Southwark Crown Court of misconduct in a public office and perverting the course of justice. The charges arose from his arrest and detention of Wad Al-Baghdadi after a dispute about payment for website work.

His convictions at the first trial had been quashed because the jury had wrongly been led to regard Al-Baghdadi as a person of good character. A retrial was ordered ([2011] EWCA Crim. 1174). At the retrial, the defence was permitted to rely on substantial evidence of Al-Baghdadi’s dishonesty and violence, but the trial judge excluded three further areas of alleged bad-character evidence concerning his former girlfriend.

The sole issue was whether exclusion of that material under section 100(1) of the Criminal Justice Act 2003 made the convictions unsafe.

1. Appeal dismissed. The convictions remained safe. The court held that the trial judge correctly excluded the rape-related material, but wrongly excluded evidence that Al-Baghdadi had repeatedly slapped his former girlfriend outside a nightclub.

2. For section 100(1)(b) of the Criminal Justice Act 2003, the relevant matter in issue is an additional issue to which the bad-character evidence is directed, rather than the inevitable ultimate question whether the defendant committed the charged offence. The court must make a fact-specific assessment under sections 100(1)(b) and 100(3) of the evidence’s substantial probative value and its substantial importance in the case as a whole.

3. Section 109(1) requires the evidence to be assumed true for admissibility, but that assumption merely supplies the context for the decision. It does not establish the statutory preconditions automatically. The court may examine all material bearing on whether a bare allegation, even if assumed true, has the required probative value and importance.

4. There is no equivalent, for non-defendant bad-character evidence, of the discretionary exclusion under section 101(3). Satellite litigation is nevertheless relevant to the statutory assessment. If admitting the evidence would require the jury also to determine disputed allegations of separate wrongdoing by a witness, distract it from the charged offence, or impair its understanding of the case, the evidence may lack substantial probative value or substantial importance.

5. The rape allegation and the lengthy, bitterly contested recording did not meet those conditions. The nightclub assault did: it was evidence of unpleasant public violence apparently triggered by a personal grievance, and was probative of a propensity to violence in public. Its exclusion added little, however, because the jury already knew of serious public violence, extensive dishonesty, and other violence by Al-Baghdadi. Powerful independent evidence also supported the prosecution case. The omitted evidence could not undermine the verdicts.

• Court of Appeal (Criminal Division): The appeal against the retrial convictions was dismissed ([2013] EWCA Crim 88).
• Southwark Crown Court: Following a retrial before Saunders J and a jury, the appellant was convicted on 13 February 2012 of misconduct in a public office and perverting the course of justice.
• Court of Appeal (Criminal Division): The convictions at the first trial were quashed and a retrial was ordered because the jury had been misled about Al-Baghdadi’s character ([2011] EWCA Crim. 1174).