Marray, R. v

Contextual evidence may be admitted where it assists the jury to understand the relevant relationship or conversation and has probative value. A trial judge may exclude material whose prejudicial effect outweighs that value, but an appellate court will not interfere merely because it might have balanced the material differently.

Bad-character evidence requires a clear, simple direction on its permitted use. It cannot itself establish guilt or bolster a weak case. Once properly admitted, however, it may be considered on any issue to which it is probative. A defect in the summing-up will not make a conviction unsafe unless it caused material prejudice or unfairness.

The appellant, a criminal solicitor, was convicted at Birmingham Crown Court of doing an act intended to pervert the course of justice and sentenced to two years’ imprisonment. He was acquitted of a separate conspiracy count.

The prosecution relied on covertly recorded conversations. The central allegation was that the appellant had advised a client, wanted in connection with a drugs conspiracy, to leave the jurisdiction. The appellant accepted recounting that advice to another client but said he had invented it to impress him.

By leave limited to two grounds, the appellant challenged the admission of five transcripts and contended that the summing-up did not adequately direct the jury about their relevance to the count of conviction.

1. The appeal was dismissed. The judge had properly admitted the challenged transcripts. Some were directly relevant to the alleged conspiracy and therefore fell outside the bad-character regime under Criminal Justice Act 2003, section 98. Other material was capable of providing context for the appellant’s relationships with clients and co-accused, and of bearing on the likelihood that he had given the alleged advice.

2. The trial judge was entitled to assess the balance between probative value and prejudice. The appellate court would not intervene simply because it might have drawn that balance differently. The admission decisions were within the judge’s discretion. Although certain racial comments would better have been excluded, they had little relevance and did not render the trial unfair.

3. The court applied the jury-direction principles stated in R v Hanson [2005] 2 Cr App R 21 and explained in R v Campbell [2007] 2 Cr App R(S) 28. Bad-character material must be explained in simple terms. The jury must understand its possible relevance and must not treat it as independently proving guilt or as bolstering a weak case. No prescribed formula is required.

4. The judge’s treatment of the conversations involving the client in Thailand was sufficient. He identified the prosecution case that the conversation could support an inference that the appellant was prepared to go beyond proper professional advice, put the appellant’s contrary explanation, and made clear that it was only a factor.

5. The judge had not expressly related the other conversations to the count of conviction. Even assuming that was a defect, it caused no material prejudice. Those conversations could legitimately cast light on the appellant’s relationship with persons facing criminal charges. Further, the appellant had accepted that he had crossed professional boundaries in other conversations. The conviction was therefore safe.

• Court of Appeal (Criminal Division): The appellant’s appeal against conviction was dismissed.
• Crown Court at Birmingham: On 18 July 2013, the appellant was convicted by a majority of doing an act intended to pervert the course of justice and was sentenced to two years’ imprisonment. He was acquitted of a separate conspiracy count.