Richter-John, R. v

On a renewed application for permission to appeal against conviction, leave should be granted where there is an arguable challenge to the legal basis on which potentially prejudicial evidence was admitted. In particular, where evidence is said to be admissible as bad-character evidence, the trial judge must identify and address the applicable statutory route under the Criminal Justice Act 2003. The need for that analysis is especially important where the remaining prosecution case may be weak and the evidence may carry substantial prejudicial force.

The applicant sought leave to appeal against conviction after a single judge had refused permission. His proposed appeal challenged the trial judge’s admission of two categories of evidence.

The first concerned the applicant’s fingerprints on items found in a Swansea warehouse which were associated with processing or trafficking controlled drugs. The second was his earlier conviction for being concerned in the importation of cannabis. Both the earlier and current importations involved cannabis arriving by air from South Africa, although the earlier quantity was much smaller.

The applicant contended that the first category had not been considered through the proper bad-character provisions of the Criminal Justice Act 2003, and that the evidence remaining without the contentious material was weak. The question was whether those challenges were arguably capable of supporting an appeal against conviction.

1. The renewed application was allowed. The court granted leave to appeal against conviction because the proposed grounds were arguable. It did not determine the ultimate admissibility of either category of evidence or the safety of the conviction.

2. The applicant’s challenge concerned fingerprint evidence found on drug-related items in a Swansea warehouse and evidence of his earlier conviction for importing cannabis. The court noted that the prosecution’s written notice to adduce bad-character evidence appeared principally to address the earlier conviction, while referring only tangentially to the fingerprint evidence.

3. It was arguable that the legal basis for admitting the fingerprint evidence had not been properly identified. The trial judge appeared to have considered that evidence primarily in response to a defence application to exclude it, rather than as a prosecution application to admit it under Criminal Justice Act 2003 sections 101(1)(d) and 101(3).

4. The court also treated as arguable the submission that, if the contentious evidence were excluded, the remaining prosecution evidence was weak. That made it important to identify precisely the basis on which any bad-character evidence could be admitted and to assess its probative and prejudicial effect.

5. The court directed that a transcript of the argument leading to the trial ruling be obtained, granted an implicit extension of time, and directed the respondent to provide a skeleton argument addressing the identified points.

• Court of Appeal (Criminal Division) — in [2017] EWCA Crim 374, granted the renewed application for leave to appeal against conviction and gave consequential case-management directions.

• Single judge of the Court of Appeal — previously refused leave to appeal against conviction.

• Trial court — convicted the applicant; the court and judgment citation are not stated in the judgment.