Stewart v R

Evidence of gang association, gang violence and gun-related images may fall outside the bad-character regime where it is directly relevant to an alleged offence. Under Criminal Justice Act 2003, section 98, this includes evidence bearing on motive or intent. The enquiry is fact-specific and has no necessary temporal limit.

Where evidence is admitted on that basis, a bad-character direction is not automatically required. The directions must reflect the specific purpose for which the evidence is admitted and must ensure that the jury decide the actual issue.

The appellant was convicted after a retrial at the Central Criminal Court of possessing a firearm with intent to endanger life, contrary to section 16 of the Firearms Act 1968. He had been found carrying a concealed sawn-off shotgun and cartridges in a minicab in Tulse Hill.

The prosecution contended that the weapon was intended for use in a gang dispute. It relied on gang-related evidence, evidence that the appellant had been attacked in gang violence, and images recovered from his telephone. The Recorder admitted that evidence as being directly connected with the alleged facts under section 98 of the Criminal Justice Act 2003.

The appellant appealed against conviction and an 11-year detention sentence. The central issues were the proper route for admitting the gang-related evidence, the adequacy of the jury directions, and whether the sentence was excessive.

1. The appeals against conviction and sentence were dismissed. The conviction was safe and the sentence was neither wrong in principle nor manifestly excessive.
2. Section 98 of the Criminal Justice Act 2003 excludes from the statutory definition of bad character evidence which has to do with the alleged facts of the charged offence. Evidence directly relevant to motive or intention can therefore be admitted without recourse to a section 101 gateway. There is no necessary temporal qualification; the question is highly fact-specific.
3. The gang-related evidence was directly relevant to the appellant’s motive and intention in possessing the concealed sawn-off shotgun. Together with the weapon’s nature, the circumstances in which it was carried, and the telephone images, it was capable of supporting an inference that he intended its use in gang-related violence rather than acting merely as a courier.
4. The evidence was admitted under section 98, not as bad-character evidence under section 101(1)(d). A direction of the kind identified in R v Lowe [2007] EWCA Crim 3047 would have been required had the jury been permitted to use the evidence through the section 101 gateway. It was not required on the actual basis of admission. The Recorder correctly confined the evidence to its evidential purpose and made clear that gang association alone did not prove the requisite intent.
5. On sentence, the Recorder could assess the evidence heard at trial despite the appellant’s acquittal on the ammunition count. She was entitled to conclude that the firearm was intended for use in a gang dispute and to treat police intervention as fortuitous. The appellant’s age was considered, but did not render the 11-year detention sentence excessive.

• Court of Appeal (Criminal Division): In Stewart v R [2016] EWCA Crim 447, the court dismissed the appeals against conviction and sentence.
• Central Criminal Court: Following a retrial before Recorder Henson and a jury, the appellant was convicted on 7 October 2014 of possessing a firearm with intent to endanger life. On 30 January 2015, he was sentenced to 11 years’ detention in a young offenders’ institution.