Thompson, R v

Evidence of bad character is admissible under the false-impression gateway only where the defendant has made an assertion apt to mislead the jury. The corrective evidence must have probative value and go no further than necessary. The assessment is fact-specific and appellate restraint is appropriate.

A conspiracy requires proof of an agreement with at least one other person and a shared criminal design. The other conspirator need not be identified, but the prosecution must adduce sustainable evidence of that person’s participation and common purpose. Where the evidence cannot establish those essential elements, the judge must uphold a submission of no case to answer.

The appellant was tried with eight others on alternative conspiracy counts arising from events at a flat where loaded firearms were found. At the first trial he was convicted of conspiracy to possess prohibited weapons. The jury did not reach a verdict on the more serious count of conspiracy to possess firearms with intent to endanger life.

At his re-trial on that count, the prosecution initially alleged a conspiracy with the former co-defendants, although they had been acquitted of that count. Near the close of the prosecution case, the judge amended the indictment to remove their names. The case then alleged a conspiracy with persons unknown. The appellant was convicted and sentenced to 18 years’ imprisonment, with no separate penalty on the earlier count. He appealed both convictions, challenging the admission of robbery convictions under the Criminal Justice Act 2003 and the sufficiency of the evidence of a conspiracy with an unidentified person.

1. Count two: appeal dismissed. The appellant’s account of a lengthy history of drug dealing was capable of giving a false and misleading impression that he had turned to crime only through homelessness and financial necessity, and that his periods without dealing resulted only from the birth of his children. The judge was entitled to admit the robbery convictions under section 101(1)(f) and section 105 of the Criminal Justice Act 2003. They had probative value in correcting that impression and were no more extensive than necessary.
2. The judge was also entitled not to exclude that evidence under section 78 of the Police and Criminal Evidence Act 1984. The detailed account of the appellant’s past offending was unnecessary to explain his contact with the drug supplier. Proper jury directions made the convictions peripheral. In any event, the count two conviction was safe because the evidence was strong and the jury had been directed that the convictions did not prove guilt.
3. Count one: appeal allowed. The court confirmed that an acquittal of an alleged conspirator normally binds the Crown only in relation to that person. A later trial may therefore proceed on the basis that the acquitted person was a conspirator, subject to fairness: R v Mitchell [1964] CLR 279 and R v Austin and Tavakolina [2011] EWCA Crim 345. The court did not decide the separate fairness challenge to the late amendment.
4. Once the named former co-defendants had been removed, however, there was no evidence capable of proving an agreement between the appellant and a person unknown who shared the required design to possess firearms with intent to endanger life. Possible suppliers, couriers and other attendees could not safely be inferred to know what was delivered or its intended use. Applying R v Galbraith 73 Cr.App.R. 124 and the conspiracy principles in R v Mehta [2012] EWCA Crim 2824, the judge should have upheld the submission of no case to answer. The count one conviction was quashed.
5. The court resentenced the appellant under section 4 of the Criminal Appeal Act 1968 to 8½ years’ imprisonment on count two, from the original sentencing date.

• Court of Appeal (Criminal Division): In [2018] EWCA Crim 2082, the court dismissed the appeal against the count two conviction, allowed the appeal against the count one conviction and quashed it, then resentenced the appellant on count two.
• Crown Court at Kingston: At the first trial, the appellant was convicted of conspiracy to possess prohibited weapons. The jury did not reach a verdict on the count alleging conspiracy to possess firearms with intent to endanger life.
• Crown Court at Kingston: At the re-trial, the indictment was amended to allege conspiracy with persons unknown. The appellant was convicted on that count and received 18 years’ imprisonment, with no separate sentence on count two.