Ali Ditta v R

Evidence of prior conduct falls within section 98(a) of the Criminal Justice Act 2003 where it has a broad and substantive connection with the alleged offence, including by explaining a defendant’s relationship with others and providing a motive to offend. It may also be admissible through section 101(c) or (d); the route to admissibility does not matter once the evidence is properly admitted.

On a submission of no case in a circumstantial case, the judge must ask whether a properly directed reasonable jury could, on the prosecution evidence and favourable available inferences, find guilt beyond reasonable doubt. The judge must not choose between competing inferences. Adverse inferences from interview silence may be left to the jury where it is proper to do so, subject to fair and carefully limited directions.

The applicant, a practising solicitor, was convicted at the Crown Court at Liverpool of two common-law offences of acts tending and intended to pervert the course of public justice. He received concurrent sentences of three years’ imprisonment.

The prosecution alleged that his cocaine use and relationship with clients involved in drug conspiracies gave him a motive to communicate information concerning a police investigation and to pass messages intended to assist them to avoid arrest. He made a renewed application for leave to appeal conviction and sentence after the single judge had refused permission.

The application challenged, among other matters, the admission of bad-character and investigation evidence, the refusal of a no-case submission, directions on silence, disclosure, and the summing-up. A further ground concerning legal professional privilege required further evidence and was adjourned.

1. The renewed application for leave to appeal conviction was refused on every ground determined by the court. Ground 9, concerning legal professional privilege, was adjourned for a further hearing after evidence from the applicant and his former legal team. Leave to appeal sentence was refused.

2. The applicant’s cocaine use and the circumstances of his drug-possession convictions were properly admitted. Under section 98(a) of the Criminal Justice Act 2003, the expression “to do with” has broad scope. The evidence was capable of showing that the applicant’s professional dealings with the three clients had been compromised, and that cocaine supplied through one of them gave him a motive to help them avoid arrest. It also had substantial probative value in explaining their relationship. Their previous convictions were likewise relevant to his knowledge of their criminal activities and likely interest in the investigation. The evidence could alternatively be admitted under section 101(c) or (d).

3. There was no basis to exclude that material under section 78 of the Police and Criminal Evidence Act 1984. Nor was the material concerning Operation Oak excessive in a way that made the convictions unsafe. Much of it was needed to explain the communications and surrounding relationships.

4. The judge correctly left the case to the jury. Applying the conventional no-case approach identified in R v Galbraith [1981] 1 WLR 1039, a judge does not choose between available inferences in a circumstantial case. The pattern and timing of telephone contacts, considered with the surrounding evidence, were capable of supporting an inference that the applicant deliberately passed information intended to assist the clients to avoid arrest.

5. The directions under section 34 of the Criminal Justice and Public Order Act 1994 were confined to two identified matters. The trial judge fairly explained the defence reasons for silence and correctly left it open to the jury to draw such inferences as appeared proper. The disclosure complaints, the criticisms of the summing-up, and the remaining grounds did not render the convictions unsafe. The three-year concurrent sentences were appropriate for serious offending by a practising solicitor.

• Court of Appeal (Criminal Division): In [2016] EWCA Crim 8, the court refused the renewed application for leave to appeal conviction on all determined grounds, adjourned the legal-professional-privilege ground, and refused leave to appeal sentence.
• Crown Court at Liverpool: Before Holroyde J and a jury, the applicant was convicted on 1 November 2013 of two offences of doing acts tending and intended to pervert the course of public justice, and received concurrent three-year sentences.