Omotoso, R v

Evidence of a defendant’s bad character under the false-impression gateway must address a genuinely false or misleading impression and must go no further than necessary to correct it. Extensive previous convictions will not ordinarily be a proportionate correction where a limited admission would suffice.

The character-attack gateway concerns an attack made before the jury. Material advanced in an abuse-of-process application heard without the jury cannot itself found admission. A court must also address the statutory fairness safeguard, particularly where the alleged attack arises from legitimate cross-examination about the adequacy of a police investigation.

The appellant was convicted at the Crown Court at Harrow of two counts of possessing a firearm with intent to endanger life. The prosecution case was that he and his co-defendant had jointly possessed two firearms discarded from an Audi vehicle.

After the defence case had closed, the judge admitted the appellant’s extensive previous convictions. The prosecution relied on the false-impression gateway, following evidence that the appellant had worked as an auditor and was obtaining a heavy-goods-vehicle licence, and the character-attack gateway, following cross-examination of the officer in the case and the evidence of a defence witness.

The appeal concerned whether those rulings were lawful and, if not, whether the resulting convictions were safe.

1. Appeal allowed. The convictions on both counts were quashed. The court ordered a retrial.

2. Under Criminal Justice Act 2003 section 101(1)(f), read with section 105, the appellant’s brief evidence about auditing and obtaining a heavy-goods-vehicle licence was very doubtful to have conveyed that he held a professional role. In any event, introducing his previous convictions went considerably further than was necessary to correct any possible false impression. If clarification had been justified, a limited admission that his work involved stock-taking could and should have been used instead.

3. Section 106 confines the character-attack gateway to an attack made in the jury’s presence. The content of an abuse application argued without the jury could not itself supply the basis for admission under section 101(1)(g), although it could direct the judge’s attention to the cross-examination actually heard by the jury.

4. Cross-examination suggesting that a police investigation was flawed may in some circumstances attack an officer’s character. However, the gateway must not be invoked too readily so as to inhibit legitimate questioning. The judge identified no particular questions that attacked the officer’s integrity or went beyond the issues. The inconsistent evidence of the defence witness was not, without more, objectionable.

5. Most importantly, the judge did not consider the mandatory fairness question under section 101(3). The errors concerning both gateways, reliance on material heard outside the jury’s presence, and failure to undertake that assessment left the court in doubt about the safety of the convictions. Applying the appellate approach in R v Renda and others [2006] 1 Cr App R 24, an erroneous ruling does not automatically require quashing, but its effect on safety must be assessed.

• Court of Appeal (Criminal Division). In R v Omotoso [2018] EWCA Crim 1394, the court allowed the appeal, quashed both convictions and ordered a retrial.

• Crown Court at Harrow. On 30 June 2016, the appellant was convicted of two counts of possessing a firearm with intent to endanger life and was subsequently given an extended sentence of imprisonment.