Muhedeen v R. (Rev 1)

Under Criminal Justice Act 2003 section 100(1)(b), a non-defendant’s bad character is admissible only if it has substantial probative value concerning a matter in issue that is of substantial importance in the case as a whole. The assessment is fact-sensitive and must focus on the real issues created by the evidence and the defence advanced.

Evidence cannot be admitted merely to invite speculation that a complainant’s earlier weapon convictions show that the complainant possessed the weapon used in the alleged offence. Where the defence is a complete denial of involvement, and there is no evidential basis for that speculation, such convictions are remote from the true issues and risk distracting the jury.

The appellant appealed against his conviction at Nottingham Crown Court for wounding with intent. The complainant had sustained five stab wounds during a confrontation involving the appellant and two co-accused.

The prosecution alleged a joint attack. The appellant denied participating in any violence and asserted that a separate group of men had inflicted the injuries. Before trial, and again after the appellant gave evidence, he sought leave under section 100 of the Criminal Justice Act 2003 to adduce the complainant’s four previous convictions for carrying knives or bladed weapons.

The trial judge refused leave. The central issue on appeal was whether those convictions had substantial probative value concerning a matter in issue of substantial importance in the case as a whole.

1. Appeal dismissed. The trial judge correctly refused permission to adduce the complainant’s previous convictions under section 100 of the Criminal Justice Act 2003.

2. The applicable gateway was section 100(1)(b). It required evidence with substantial probative value in relation to a matter both in issue and of substantial importance in the case as a whole. The explanatory-evidence gateway in section 100(1)(a), read with section 100(2), was not engaged.

3. The real issue was whether the appellant and his group jointly participated in the stabbing with the required intent, or whether an entirely separate group was responsible. It was not who had initially possessed the knife. The defence was a denial of involvement. It was not a case in which the appellant admitted involvement but relied on self-defence or contended that the complainant had been disarmed.

4. There was no evidential basis for inferring that the complainant had produced the knife and had then been disarmed. His previous convictions could therefore do no more than generate speculation. They were remote from the real issues, did not materially bear on credibility, and had scant relevance to intention given the five deliberately inflicted stab wounds.

5. The court accepted the guidance in Miller [2010] 2 Cr App R 19, Braithwaite [2010] 2 Cr App R 18, and R v Mount [2010] EWCA Crim 2974. Section 100 requires a fact-sensitive judicial assessment directed to real issues, rather than character evidence deployed to create innuendo or speculation.

6. In any event, exclusion of the evidence would not have rendered the conviction unsafe. The prosecution case was strong, the alleged separate group was not supported by the CCTV evidence, and the evidence amply supported the requisite intent for the section 18 offence.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction: [2016] EWCA Crim 1.
• Nottingham Crown Court — on 13 May 2014, convicted the appellant of wounding with intent and sentenced him to 10 years’ imprisonment.