Cleere, R. v

A defendant may give a misleading impression for the bad-character provisions even where the evidence relied on is true. The impression must be assessed in its full context.

Where the relevant gateway under the Criminal Justice Act 2003 is satisfied, the court must still consider whether admitting the evidence is fair and proportionate. An error in admitting bad-character evidence does not make a conviction unsafe if the appellate court is sure that the jury would have convicted without it.

The appellant was convicted at Harrow Crown Court of perverting the course of public justice and sentenced to 18 months’ imprisonment, consecutive to a sentence already being served.

His alleged conduct occurred on the day he was due to stand trial for a roofing fraud. He and others distributed cash and business cards outside the court, causing jury-contamination concerns and an adjournment. At his later trial, he maintained that this was a genuine business promotion.

During cross-examination, he gave evidence about caring for his severely disabled grandson. The trial judge admitted evidence of his subsequent fraud conviction on the basis that his evidence gave a misleading impression. The appeal concerned whether that ruling rendered the conviction unsafe.

1. Appeal dismissed. Although the court considered that the trial judge should have excluded the evidence of the appellant’s fraud conviction, it was sure that the conviction for perverting the course of public justice was safe.

2. The appellant’s account of caring for his grandson went materially beyond the question of his primary occupation. In its context, it emphasised his devotion and positive character. The evidence was true, but it was capable of giving the jury a misleading impression when combined with his evidence portraying Candleverse as a legitimate and worthwhile business. The trial judge was therefore entitled to regard the relevant bad-character gateway in the Criminal Justice Act 2003 as satisfied.

3. That conclusion did not compel admission. The evidence emerged spontaneously in cross-examination by a co-defendant’s counsel. Its admission disclosed both the nature of the earlier allegation and the appellant’s guilt of it, substantially altering the jury’s view of the aborted Blackfriars proceedings. In those circumstances, the court considered that the evidence ought to have been excluded.

4. The decisive appellate question was whether the resulting conviction was unsafe. The defence explanation, that the distribution of £20 notes and business cards outside the court was a convenient legitimate promotion or practice run, was far-fetched. The court was firmly satisfied that the jury would have reached the same verdict without knowing of the fraud conviction. The conviction therefore remained safe.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction: [2020] EWCA Crim 1360.
• Harrow Crown Court: on 21 November 2019, convicted the appellant of perverting the course of public justice and imposed 18 months’ imprisonment, consecutive to an existing sentence.