RJ, R. v

Evidence which directly concerns the alleged facts is not bad-character evidence under Criminal Justice Act 2003, but each item must be assessed separately. Where evidence instead tends to show earlier misconduct, it should be introduced and directed upon as bad-character evidence, with the safeguards applicable to that regime.

A conviction is unsafe where unedited and potentially prejudicial material is placed before the jury and the judge does not give an adequate direction on the permitted use of bad-character evidence. The court may uphold a carefully reasoned decision to admit an old conviction where the prosecution case is not weak and the conviction has distinctive similarities to the charge, but that issue cannot cure an unsafe use of other evidence.

The appellant was convicted at Bristol Crown Court of conspiracy to import cannabis and sentenced to nine years’ imprisonment. The prosecution relied on bank payments, telephone contact with a co-conspirator, items found in a storage unit rented by the appellant, and his 1995 conviction for importing cannabis from South Africa.

On appeal, the appellant challenged the admission and treatment of a press, a notebook and packaging equipment found in the storage unit. He also challenged the admission of the 1995 conviction as bad-character evidence. The central questions were whether each item was evidence of the alleged conspiracy or bad-character evidence, whether it had been properly admitted, and whether any errors rendered the conviction unsafe.

Appeal allowed; conviction quashed. The errors concerning the notebook evidence rendered the conviction unsafe.

1. Under section 98 of the Criminal Justice Act 2003, evidence which has to do with the alleged facts is not bad-character evidence. The evidential items in the storage unit required separate analysis. The packaging equipment was admissible as evidence of how the conspiracy might have developed had the consignment not been intercepted. Some notebook entries could directly concern payments within the conspiracy and the intended distribution of the imported cannabis.

2. The press could not be treated as direct evidence of the charged importation because the prosecution evidence was that the imported cannabis had already been pressed. The suggested alternative—that it had earlier generated funds for the conspiracy—was speculative and concerned conduct outside the indictment period. The press and notebook material concerning prior cannabis transactions could potentially have been admitted as bad-character evidence, but should have been dealt with through the appropriate statutory route.

3. The distinction between direct evidence and bad-character evidence may be fine. A court should therefore keep the safeguards attached to bad-character evidence in mind and give suitable directions on the use and weight of the evidence. Here, the jury received the notebook in unedited form, including material capable of suggesting dealings in class A drugs. The judge’s treatment of it was potentially misleading and did not adequately direct the jury on the use of the bad-character material. That was unsatisfactory and made the conviction unsafe.

4. Although unnecessary to the disposal of the appeal, the court held that the 1995 conviction had been properly admitted under section 101(1)(d). Applying R v Hanson and others [2005] 1 WLR 3169, the strength of the prosecution case was material and the appellate court would not lightly disturb a balanced ruling made on a correct basis. The other admissible evidence meant that the prosecution case was not weak or insubstantial, and admission of the previous conviction was within the broad ambit of a legitimate judgment.

• Court of Appeal (Criminal Division) Allowed the appeal against conviction and quashed the conviction.

• Crown Court at Bristol On 5 February 2016, the appellant was convicted of conspiracy to import cannabis contrary to section 1 of the Criminal Law Act 1977. On 19 February 2016, he was sentenced to nine years’ imprisonment.