Murphy, R. v

Under Criminal Justice Act 2003, section 100(1)(b), a non-defendant witness’s bad character may be admitted only where credibility is a matter of substantial importance and the evidence has substantial probative value on that issue. Convictions do not automatically permit an attack on credibility, and need not themselves demonstrate dishonesty. The assessment is fact-specific and is principally for the trial judge.

Where the prosecution adduces the material, section 78 of Police and Criminal Evidence Act 1984 remains a safeguard against unfairness. A court may properly admit limited evidence of a defence witness’s serious sexual offending where, in the particular circumstances, it bears substantially on whether the witness may have been willing to give a false account supporting the defendant.

The appellant was convicted at Teeside Crown Court of oral rape, assault by penetration, sexual assault and vaginal rape. His case was that the sexual activity with DV had been consensual and followed a clandestine relationship.

Kenneth Milburn gave evidence which supported that account. After he had given evidence in chief, the prosecution obtained leave to cross-examine him about convictions for serious sexual offences under section 100 of the Criminal Justice Act 2003. The trial judge limited the evidence to the fact of serious sexual offending and the circumstances in which Milburn and the appellant met.

The appeal challenged both admissibility and the fairness of admitting that evidence under section 78 of the Police and Criminal Evidence Act 1984.

1. Appeal dismissed. Section 100 of the Criminal Justice Act 2003 governs cross-examination as well as the formal admission of a non-defendant’s bad character: Brewster [2011] 1 WLR 601.
2. Under section 100(1)(b), the court must first ask whether the witness’s creditworthiness is a matter in issue of substantial importance in the case as a whole. It must then ask whether the proposed bad-character evidence has substantial probative value on that issue. A conviction alone does not open a witness generally to a credibility attack. Nor must a conviction show dishonesty or untruthfulness; the question is whether a fair-minded tribunal could regard it as affecting the worth of the witness’s evidence.
3. The application of those criteria is necessarily fact-specific and the trial judge is ordinarily best placed to assess it: Stephenson (David) [2006] EWCA Crim 2325. Here, credibility was crucial. Milburn’s evidence supported the appellant’s account of a consensual relationship and directly contradicted DV.
4. The judge was entitled to conclude that Milburn’s serious sexual convictions, his shared residence with the appellant in a bail hostel, and the surrounding evidence of contact could provide a substantial basis for the jury to assess whether he might have been willing to support a false account. This did not create a general presumption that sexual offenders would lie for one another; it was an assessment of the particular circumstances.
5. The judge also properly applied section 78 of the Police and Criminal Evidence Act 1984 by restricting the evidence to convictions for serious sexual offences and avoiding their detailed nature. That limitation protected fairness. The court had no residual doubt about the safety of the convictions.

• Court of Appeal (Criminal Division) — In [2020] EWCA Crim 137, dismissed the appellant’s appeal against conviction.
• Crown Court at Teeside — On 2 May 2019, convicted the appellant of oral rape, assault by penetration, sexual assault and vaginal rape. On 28 June 2019, imposed life imprisonment for oral rape, with concurrent sentences on the remaining counts.