Abbas v CPS

Evidence of a non-defendant’s bad character is admissible only where it satisfies the statutory requirements of substantial probative value and substantial importance, or falls within another statutory gateway. An unsupported allegation based on information from an unidentified source is speculative and cannot satisfy that test or trigger further reasonable lines of enquiry. Once leave to adduce bad-character evidence has been refused, the evidence cannot be introduced indirectly through cross-examination. A representative appointed under section 38 of the Youth Justice and Criminal Evidence Act 1999 has a limited remit focused on cross-examination, but may take steps necessary to perform that duty properly. The appointment ends when cross-examination ends, although the advocate may remain to assist the accused if the court permits and the advocate is willing to do so.

The appellant was convicted by magistrates of assaulting the complainant. His solicitor, appointed under section 38 of the Youth Justice and Criminal Evidence Act 1999, sought an adjournment and permission under section 100 of the Criminal Justice Act 2003 to adduce alleged bad-character evidence concerning the complainant. The application relied on an unsupported assertion that she had falsified an immigration application. The magistrates refused the application and stopped cross-examination directed to that allegation.

The solicitor remained in court after completing the cross-examination, despite the prosecutor raising a procedural objection. The magistrates allowed her to remain. On a case stated, the Administrative Court considered the lawfulness of the bad-character ruling, the restriction on cross-examination, the prosecutor’s objection, and the scope of the section 38 appointment.

1. The appeal was dismissed. The magistrates had been entitled to refuse the application under section 100 of the Criminal Justice Act 2003. The allegation was based solely on an unsupported assertion from an unidentified person. It was speculative, tenuous and uncertain, and had no substantial probative value. The fact that credibility was in issue did not make such material probative.

2. The guidance in R v Braithwaite [2010] 2 Cr App R 18 applied. Material of this kind was, at best, hearsay and would rarely possess substantial probative value. Its value had to be assessed in the context of the case as a whole. The fact that the issue had allegedly been raised before trial did not materially distinguish the case.

3. Once leave to adduce the alleged bad-character evidence had been refused, the solicitor could not introduce it indirectly through cross-examination. The magistrates were entitled, and indeed required, to stop questioning directed to irrelevant and inadmissible material.

4. The statutory role of a representative appointed under section 38 was limited to properly cross-examining the particular witness. It did not confer a free-ranging authority to conduct the trial. The representative’s professional and statutory duties could nevertheless include applications concerning disclosure or the witness’s bad character where those steps were necessary to conduct the cross-examination properly. The scope of those duties was fact-specific.

5. The appointment ended at the conclusion of cross-examination, subject to any contrary determination by the court. However, the Act did not require the advocate to leave where the advocate was willing to remain and assist the accused on a pro bono basis. The prosecutor was entitled to raise the procedural point, and the legal adviser’s advice was correct.

6. The court answered the material questions stated by the magistrates in the affirmative, except that the refusal of the section 100 application was answered simply: no. The costs order was made but not enforced because the appellant was publicly funded.

High Court (Administrative Court): The case was stated by the Stratford Justices. The court dismissed the appeal and upheld the magistrates’ rulings.