Fender, R v

Under section 101(1)(f) of the Criminal Justice Act 2003, a defendant gives a false impression where voluntary evidence goes beyond a denial and presents a misleading account of personal character, associations or moral disposition which is capable of strengthening the defence. The prosecution may adduce probative rebuttal evidence even though no individual item conclusively answers that impression. Section 105(6) requires the evidence to be confined to what is necessary to correct it. The trial judge must assess relevance and proportionality in the circumstances, and should prevent the rebuttal issue from becoming a disproportionate distraction from the trial.

The appellant was convicted at the Crown Court at Harrow of conspiracy to sell or transfer prohibited weapons and conspiracy to possess ammunition. The prosecution alleged that he attended a flat where a weapons transaction was arranged in order to acquire weapons. He said that he attended only to buy cannabis and fled when warned that police were approaching.

In evidence, the appellant denied gang affiliations and asserted a moral objection to guns and gun-related violence. The judge admitted limited bad-character evidence to rebut the resulting alleged false impression, including material concerning his associations, convictions for dishonesty and violence, and photographs on his telephone. The appeal challenged both the existence of a false impression and the scope and presentation of the rebuttal evidence.

1. Appeal dismissed. The convictions were safe. The appellant voluntarily gave evidence which went beyond a simple denial of involvement in the weapons transaction. His assertions that he opposed gangs and guns on moral grounds, and that his criminality was confined to low-level cannabis dealing, were capable of enhancing his credibility and supporting his account that his presence was coincidental.

2. The court applied section 101(1)(f) and section 105 of the Criminal Justice Act 2003. Consistently with R v D and others [2012] 1 Cr.App.R 8, a bare denial does not create a false impression. Here, however, the appellant advanced a distinct secondary case that he was not the sort of person who would participate in gun-related gang activity. The Crown was entitled to rebut that case. A rebuttal item need not, by itself, wholly disprove the impression; it need only have material probative value in doing so.

3. The admitted evidence did not exceed what was necessary to correct the impression. The judge properly excluded convictions for sexual assault and causing death by dangerous driving, confined the gang material, and guarded against satellite litigation. The remaining material was relevant to the appellant’s claimed honesty, moral objection to violence, and asserted absence of gang links.

4. The complaint based on R v Myers [2015] UKPC 40 failed because the Crown did not tender PC Akkaya’s report or call him as an expert witness. It used limited information from it to frame cross-examination. The jury directions accurately presented gang membership as the prosecution’s suggestion rather than an established fact. Further caveats would have been preferable, but their absence did not render the trial unfair.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction: [2018] EWCA Crim 2829.

• Crown Court at Harrow — on 12 September 2017, convicted the appellant of conspiracy to sell or transfer prohibited weapons and conspiracy to possess ammunition; sentenced him to 11 years’ imprisonment on the first count and three years concurrent on the second.