Simpson & Anor, R. v

Where one defendant’s case undermines a co-defendant’s defence, the co-defendant may rely on relevant bad-character evidence bearing on the first defendant’s truthfulness under section 101(1)(e) of the Criminal Justice Act 2003. Its probative value is assessed on the statutory assumption that it is true, unless no jury could reasonably find it true. If it is capable of substantial probative value on credibility, there is no residual discretion to exclude it.

An earlier acquittal does not prevent relevant direct evidence being used for that purpose. In fixing minimum terms for murder, statutory age-based starting points must not be applied mechanically. The court must reflect actual maturity, individual role and aggravating features.

Simpson and Benzahi were convicted of the murder of a 15-year-old following a joint trial at the Central Criminal Court. Simpson appealed his conviction. His challenge concerned evidence of an earlier alleged stabbing, admitted at the request of his co-defendant, Daniel Luke, to undermine Simpson’s credibility after Simpson’s evidence placed Luke in the car used in the attack.

Simpson contended that the identification evidence from the earlier incident was unreliable, that procedural breaches required its exclusion, and that the jury should have been told of his earlier acquittal. Benzahi renewed his application for permission to appeal his 22-year minimum term. He contended that it insufficiently reflected his role, age and maturity compared with his co-defendants.

1. Simpson’s appeal against conviction was dismissed. Simpson’s evidence that Luke had been in the car directly undermined Luke’s defence that he had not been present. Evidence relevant to Simpson’s propensity to be untruthful was therefore admissible under section 101(1)(e) and section 104(1) of the Criminal Justice Act 2003.
2. Under section 109, the judge was required to assess relevance and probative value on the assumption that the evidence was true, unless no jury could reasonably find it true. Having heard the identifying officer on a voir dire, the judge was entitled to conclude that the evidence did not meet that exclusionary threshold. The breaches of Code D had been fully explored. They did not require exclusion, and the jury received clear directions that the evidence bore on credibility only, not on propensity to use a knife in the murder.
3. The court followed R v Lawson [2006] EWCA Crim 2572. Whether misconduct is capable of substantial probative value on credibility is a fact-sensitive judgment for the trial judge. If that threshold is met in a co-defendant application, section 101(3) provides no residual fairness or case-management discretion to exclude the evidence.
4. The earlier youth-court acquittal did not bar Luke from adducing direct evidence of the alleged incident. The outcome of the earlier proceedings was irrelevant to the admissibility of sufficiently relevant evidence: Hui Chi-Ming v R [1992] 1 AC 34.
5. Benzahi’s renewed application for permission to appeal sentence was refused. The sentencing judge had not applied the statutory starting points mechanically. He had adjusted for Benzahi’s actual maturity and lesser role, while properly taking account of his knife use, his suspended sentence for carrying a knife, and other aggravating features. The resulting two-year differential from Oliver-Rowland’s minimum term was a proper reflection of the relevant differences.

• Court of Appeal (Criminal Division) — Simpson’s appeal against conviction was dismissed and Benzahi’s renewed application for permission to appeal sentence was refused: [2019] EWCA Crim 1144.
• Central Criminal Court — Simpson and Benzahi were convicted of murder on 14 February 2018. Simpson was detained at Her Majesty’s Pleasure with an 18-year minimum term, and Benzahi received life imprisonment with a 22-year minimum term.