Bogdanovic, R. v

Non-defendant bad-character evidence under section 100 of the Criminal Justice Act 2003 must be assessed in the factual context of the whole case. A risk of satellite litigation is not an independent ground of exclusion. It may, however, bear materially on whether the evidence has substantial probative value and whether the jury can fairly resolve the evidential dispute.

A conviction is not unsafe merely because of an asserted evidential or summing-up error where the evidence otherwise supports an overwhelming inference of guilt. A jury should decide whether it is sure by the ordinary meaning of that word, without applying a percentage or further attempting to define certainty.

The appellant was convicted at Kingston-upon-Thames Crown Court of being concerned in supplying cocaine and possessing criminal property. The prosecution alleged that he entered his co-accused's van carrying £30,560, including £30,060 for the purchase of almost one kilogram of cocaine. The appellant maintained that he had brought only £500 to buy cocaine for personal use and that the larger sum was already in the van.

On appeal, he challenged the refusal to admit evidence of three earlier alleged cash transfers involving the co-accused. He also challenged a passage in the written route-to-verdict document and the judge's answer to the jury's question about whether being sure required absolute certainty. The central question was whether, separately or cumulatively, those matters rendered the convictions unsafe.

1. Appeal dismissed. The judge was entitled to refuse leave to adduce the co-accused's alleged prior misconduct. The evidence was not important explanatory evidence within section 100 of the Criminal Justice Act 2003, because the jury could properly understand the case without it.
2. The alleged earlier cash transfers also lacked substantial probative value on the central issue: whether the appellant had brought the £30,060 into the van. The jury already knew that the co-accused was the police target and had pleaded guilty to involvement in the present drug supply. The limited evidence of his role in the earlier transactions was factually different and consistent with either party's case.
3. The court applied the approach in R v Dizaei [2013] EWCA Crim 88. Satellite litigation is not itself a rule of inadmissibility, but the likely need to resolve contentious collateral allegations is material to the statutory assessment of probative value. Admitting this evidence would have required substantial inquiry into separate, disputed incidents and risked a complex diversion from the trial's central issue.
4. In any event, exclusion of the evidence did not make the convictions unsafe. The appellant had entered a van which was searched within about four minutes. The larger sum and his admitted £500 were found within sealed bags which he had taken into the van. There was no meaningful opportunity for the co-accused to place both sums in the bags and seal them. That gave rise to an overwhelming inference that the appellant had brought the money.
5. The route-to-verdict passage did not rewrite the prosecution case. Although it would have been preferable to separate a written summary of the parties' cases from the actual questions for the jury, the suggested explanation for the £500 was available on the evidence and did not render the trial unfair.
6. The judge should have consulted counsel before answering the jury's question. Nevertheless, the direction was adequate. It correctly told the jury to use the ordinary meaning of being sure rather than a mathematical or percentage approach.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction: [2020] EWCA Crim 1229.
• Crown Court at Kingston-upon-Thames: convicted the appellant on 19 December 2018 of being concerned in supplying a Class A controlled drug and possessing criminal property.