H & Ors v R

Evidence which concerns the alleged facts of the charged offence is outside the statutory definition of bad character and is admissible on ordinary principles, subject to the exclusionary discretion under the Police and Criminal Evidence Act 1984. Convictions for travelling in a stolen vehicle with weapons may be relevant both to propensity and to knowledge of a firearm.

A defendant who presents dealing in stolen cars as an innocent explanation for being in a stolen vehicle may create a false impression capable of correction under the Criminal Justice Act 2003. Fresh evidence on an appeal must be relevant to the grounds advanced. Confidential rehabilitation discussions about past offending should not ordinarily be disclosed without a very good reason.

Five defendants were tried at the Central Criminal Court for offences arising from the fatal shooting of Yasir Beshira. H and Sammi Tesfazgi were convicted of murder, Rilind Tahiri of manslaughter, and Ashley and Kim McFarland of assisting an offender.

The conviction challenges concerned the admission of evidence said to be bad character, including weapons convictions, earlier events linked to Tesfazgi, and the McFarlands’ earlier conduct in concealing a family member. The Crown also sought to adduce, as fresh evidence, H’s post-conviction remarks to his youth offending service case manager.

H and Tahiri appealed sentence. Ashley McFarland renewed his application for leave to appeal sentence. The central issues were the admissibility and fairness of the evidence, the fresh-evidence application, and the appropriateness of the respective minimum terms and custodial sentence.

1. Conviction appeals. The appeals against conviction by H, Ashley McFarland and Kim McFarland were dismissed. Tesfazgi’s and Tahiri’s renewed applications for leave to appeal against conviction were refused.

2. The September 2016 evidence concerning the earlier shooting and the knife bearing Tesfazgi’s DNA was not bad-character evidence. It concerned the alleged facts of the charged offence and therefore fell within section 98(a) of the Criminal Justice Act 2003. It was probative and admissible on ordinary principles, subject to section 78 of the Police and Criminal Evidence Act 1984; exclusion was not arguably required.

3. The January 2017 convictions of Tesfazgi and Tahiri for travelling in a stolen car with a sawn-off shotgun and knives were properly admitted against them. They were relevant to propensity and to whether they knew that H had a gun when they drove him. The jury was correctly directed that the evidence was not evidence against H.

4. The evidence that Kim McFarland had previously concealed Ashley McFarland from police was admissible as relevant to the issue and, equally, as evidence of a propensity to help a wanted family member avoid apprehension. The distinction was immaterial on these facts. The judge’s careful directions prevented unfair reasoning against H.

5. Tesfazgi’s evidence that he made his living buying and selling stolen cars created a false impression. It was calculated to portray his presence in the stolen Range Rover as ordinary criminal dealing rather than participation in a vehicle acquired for the shooting. The judge correctly admitted limited recent convictions under section 101(1)(f), consistently with section 105(6), and his fairness ruling was sound.

6. Fresh evidence. Although section 23 of the Criminal Appeal Act 1968 permits prosecution fresh evidence, such applications are exceptional. The court refused the case manager’s evidence. Disclosure of remarks made in confidential rehabilitation discussions about past offending would offend public policy without a very good reason. In any event, the material was irrelevant to grounds challenging evidential rulings rather than the sufficiency of the trial evidence.

7. Sentence. H’s appeal against sentence was allowed in part. His age, together with the other mitigation, made the 20-year minimum term excessive; it was quashed and replaced by an 18-year minimum term. Tahiri’s life sentence and 14-year minimum term were upheld: the planned shooting, weapons offending and prior violence justified the dangerousness finding and the sentence. Ashley McFarland’s renewed application for leave to appeal his five-year sentence was dismissed.

• Court of Appeal (Criminal Division): In [2018] EWCA Crim 2868, the court dismissed the conviction appeals and refused the renewed conviction applications. It reduced H’s minimum term to 18 years and otherwise dismissed or refused the sentence challenges.
• Central Criminal Court: Before HHJ Lucraft QC and a jury, H and Tesfazgi were convicted of murder, Tahiri of manslaughter, and Ashley and Kim McFarland of assisting an offender.