Okoh, R. v

Under Criminal Justice Act 2003 section 101(1)(e), a trial judge must determine both whether there is an important issue between defendants and whether the proposed bad-character evidence has substantial probative value on that issue. The assessment concerns the evidence's actual capacity to affect the worth of the witness's evidence. The seriousness or nature of an earlier conviction does not itself establish that value.

Where the jury has been given ample material to assess a co-defendant's credibility, the judge may properly exclude further details of convictions which add no substantial probative value. A properly reasoned exclusion on that basis does not render a conviction unsafe.

The appellant was convicted at Woolwich Crown Court of conspiracy to breach immigration control and of using unlicensed security operatives. The Crown alleged that his security business knowingly supplied foreign nationals who lacked a right to work, used false documentation, and exploited guards through very low pay and excessive hours.

A co-defendant, Basra, gave evidence directly contradicting the appellant's account of his knowledge and role. Basra had previous convictions, including rape convictions, and had falsely represented aspects of his past employment. The trial judge permitted cross-examination on the fact of conviction, the trial, the false employment claims and other credibility matters, but not on the nature of the rape convictions.

The appeal challenged that ruling under Criminal Justice Act 2003 section 101(1)(e), contending that the exclusion made the conviction unsafe.

1. Appeal dismissed. The trial judge correctly excluded cross-examination about the nature of Basra's rape convictions, and the appellant's conviction was safe.

2. The court applied Criminal Justice Act 2003 section 101(1)(e). The required inquiries were whether there was an issue between the defendants of substantial importance in the case as a whole and whether the proposed evidence had substantial probative value on that issue. Basra's credibility was an important matter in issue.

3. The decisive question was whether the nature of his convictions would materially assist the jury in assessing the worth of his evidence. Earlier conduct may show that a witness is unscrupulous or unreliable even if it is not an offence of untruthfulness. The proper assessment is whether a fair-minded tribunal would regard the conviction as affecting the value of the witness's evidence.

4. The judge was entitled to conclude that identifying the convictions as rape added no substantial probative value on the facts of this case. The jury already knew that Basra had received an eight-year sentence, had been convicted after a trial, had lied on his application form, and had falsely claimed to have been a police officer. It could therefore assess both his asserted commitment to truthfulness and his reliability without being told the offence type.

5. The ruling was measured, repeatedly reviewed and well founded. In any event, the Crown case was strong. There was no basis for concluding that the exclusion rendered the conviction unsafe.

• Court of Appeal (Criminal Division): On 4 December 2015, the court dismissed the appellant's conviction appeal: [2015] EWCA Crim 2316.

• Court of Appeal (Criminal Division): On 30 July 2014, following an Attorney General's reference, the sentence for conspiracy was increased from four years and six months to eight years' imprisonment.

• Crown Court at Woolwich: On 12 February 2014, the appellant was convicted of conspiracy to breach immigration control and using unlicensed security operatives. He was sentenced on 14 March 2014.