Awoyemi & Ors v R

Evidence of gang affiliation is admissible under Criminal Justice Act 2003, section 101(1)(d), where its evidential context makes it relevant to an important issue, such as motive, association with firearms or violence, or the negation of innocent presence or association. Bare gang membership is not enough. Proof of a recorded feud between the relevant gangs is not a prerequisite.

The court must address fairness, but evidence is not excluded merely because it is necessarily prejudicial. Directions on bad character evidence must be tailored to the issues and facts. They should explain the permitted use of the evidence and warn against treating bad character as proof of guilt. They need not follow a rigid formula or identify every item separately.

The appellants were convicted at Basildon Crown Court following a shooting in Beckton and, in the case of Awoyemi, the later possession of the loaded shotgun used in the shooting. The prosecution relied on evidence associating the appellants with the DAG gang and its culture of firearms and violence.

They appealed against conviction on the admissibility of that evidence and the adequacy of the trial judge’s directions. Other grounds had previously been rejected by the full court in [2015] EWCA Crim 590. The central issues were whether the gang-affiliation evidence was relevant and fair to admit, and whether the jury had been properly directed as to its limited use.

1. The appeals were dismissed. The evidence of gang affiliation was relevant and admissible. The shooting and subsequent return with the loaded shotgun bore the hallmarks of gang-related violence. In context, the evidence linked the appellants to a culture that gloried in firearms and violence. It was capable of proving motive, association with lethal violence and firearms, and of negativing innocent presence or association.

2. Gang membership alone is not relevant to an important issue merely by virtue of membership. However, the prosecution did not have to prove a documented feud between the DAG gang and the Beckton Boys. Gang rivalries and intentions to retaliate will not necessarily be recorded. Evidence of a gang’s culture, membership and attitude to violence may nevertheless provide an important evidential link between an accused and the crime.

3. The evidence was prejudicial, but it was not unduly prejudicial. It went materially beyond an interest in rap music, hyperbole, or an appearance in a video. Although some explanatory material could have been edited, the parties had agreed its admission and did not seek a further ruling. In Awoyemi’s case, the prejudice from the unrelated allegation was counterbalanced by the jury being told that he had been acquitted. The convictions were not thereby rendered unsafe.

4. The judge’s directions were sufficient. Consistently with Campbell [2007] EWCA Crim 1472, the jury were told why the evidence was admitted, how it could be used, and that gang membership did not establish guilt. A tailored direction was required; the judge did not have to adopt the more prescriptive, item-by-item approach suggested in Lowe [2007] EWCA Crim 3047.

• Court of Appeal (Criminal Division): The court dismissed the three appeals against conviction: [2016] EWCA Crim 668.
• Earlier Court of Appeal proceedings: Other grounds of appeal had previously been considered and rejected by the full court: [2015] EWCA Crim 590.
• Basildon Crown Court: The appellants were convicted before HHJ Lodge. No lower-court neutral citation was stated.