Staff, R v

Where bad-character evidence is admissible under section 101(1)(d) of the Criminal Justice Act 2003, it is not to be excluded under section 101(3) merely because it is prejudicial. The court must assess whether its admission would adversely affect trial fairness, balancing unfair prejudice against the risk of presenting the jury with an artificial and incomplete account of the relevant issues.

An appellate court will be slow to interfere with a correctly directed trial judge’s discretionary ruling. Clear and careful directions can prevent unfair use of previous-conviction evidence. In a retrial, a defendant must not suffer unfair prejudice, but is not entitled to an unfairly weakened prosecution case.

The appellant was convicted at a retrial of fraud and converting criminal property arising from £140,000 paid by Alex Sexton for a proposed property-development investment. The appellant maintained that no false representation had been made and that Mr Sexton permitted the money to be used in the appellant’s building business.

At the earlier trial, the jury convicted the appellant on six other dishonesty offences, acquitted him on three fraud counts, and did not reach verdicts on the two counts retried. Before the retrial, the judge admitted agreed evidence of the earlier convictions as bad-character evidence. The appellant contended that the convictions should have been excluded because their prejudicial effect made a fair trial impossible.

The appeal concerned whether the judge’s refusal to exclude that evidence rendered the retrial convictions unsafe.

1. Appeal dismissed. The convictions were safe. The trial judge was entitled to admit the evidence of the appellant’s earlier convictions and to refuse exclusion under section 101(3) of the Criminal Justice Act 2003.

2. The statutory admissibility condition in section 101(1)(d) was satisfied. The earlier dishonest conduct occurred during the same period and in the course of the appellant’s business activities. It was capable of assisting the jury to understand the competing cases about the representation made to Mr Sexton and the use of his money.

3. The court rejected the submission that the judge failed to consider the alleged weakness of the prosecution case. Although the ruling dealt with that matter briefly, the judge had presided over the first trial and had expressly addressed the relevant evidence. He was alive to the factors bearing on fairness.

4. The court applied the appellate approach stated in R v Hanson [2005] EWCA Crim 824. A correctly directed discretionary bad-character ruling will rarely justify appellate intervention. There was no legal misdirection, no failure to take account of a material matter, and no unreasonable exercise of discretion.

5. The earlier jury’s failure to agree on the retried counts created a real risk of prejudice, but did not require exclusion. Conversely, withholding the evidence could have given the retrial jury an artificial picture and unfairly weakened the prosecution case. The judge’s clear and forceful directions on the limited and cautious use of the convictions were sufficient to prevent unfairness.

6. The appellant’s renewed application for leave to appeal against sentence had been abandoned.

• Court of Appeal (Criminal Division): Dismissed the appeal against the retrial convictions.
• Retrial before His Honour Judge Dennis QC: The appellant was convicted of fraud and converting criminal property in late 2016.
• First trial before His Honour Judge Dennis QC: The jury convicted the appellant of six other dishonesty offences, acquitted him of three fraud charges, and failed to agree on the two counts later retried.