Gabbana, R.

Evidence of bad character may be admitted under section 101(1)(f) of the Criminal Justice Act 2003 where a defendant’s express or implied assertion is apt objectively to give a false or misleading impression and the evidence has probative value in correcting it.

If the factual basis for that evidence is disputed, the jury must be sure of it. A direction should preferably say so expressly, but the adequacy of a summing-up is assessed as a whole. An omission will not make a conviction unsafe where the jury would nevertheless understand that the issue was for them and that the criminal standard applied.

The appellant was convicted at Liverpool Crown Court of the murder of Bahman Faraji and sentenced to life imprisonment with a minimum term of 33 years. The prosecution case relied substantially on mobile-phone and cell-site evidence, the appellant’s contacts with a man later convicted of the murder, alleged hostility towards the deceased, and post-offence conduct.

Nearly seven years later, the appellant appealed against conviction. He challenged the admission and use of bank-account evidence as bad character under section 101(1)(f) of the Criminal Justice Act 2003, the judge’s directions on that evidence, and the absence of an express direction that drug dealing was not in issue.

The central issue was whether the rulings and summing-up rendered the conviction unsafe.

1. Appeal dismissed. The court formally granted any necessary extension of time, while holding that the seven-year delay was wholly unacceptable and did not permit the appellant to benefit from evidential uncertainty caused by it.

2. The trial judge was entitled to find that the appellant’s interview answers impliedly conveyed that he lived on lawfully derived compensation. Section 105(1)(a) of the Criminal Justice Act 2003 asks objectively whether an assertion was apt to give a false or misleading impression. In context, the unexplained substantial cash deposits were capable of correcting the implied impression that all his funds were legitimate. Their admission under section 101(1)(f) was therefore proper.

3. Section 105(3) did not assist the appellant. Editing the interviews could have misled the jury, and counsel had accepted that any withdrawal could be addressed in oral evidence. The appellant instead sought to justify the deposits. The evidence and cross-examination did not exceed what was necessary to correct the asserted false impression. It was open to the jury, on the evidence, to infer that deposits came from illicit sources and had the hallmarks of serious crime.

4. Where disputed bad-character evidence is relied upon, the jury must apply the criminal standard, consistently with Mitchell [2016] UKSC 55. An express instruction that the jury must be sure would have been preferable. Read as a whole, however, this summing-up made clear that the legitimacy of the deposits was for the jury and that they had to be sure before convicting. The omission did not render the conviction unsafe. The judge also expressly excluded any use of the evidence as showing a propensity to commit murder.

5. No sustainable complaint arose from the questioning of the appellant or the defence witness. Nor was an express disclaimer concerning drug dealing required where that allegation was not maintained as an issue by the end of the trial. On an overall appraisal, there was no material error of law and the conviction was safe.

• Court of Appeal (Criminal Division). The court dismissed the appeal against conviction and formally granted any necessary extension of time: [2020] EWCA Crim 1473.

• Liverpool Crown Court. On 22 March 2012, the appellant was convicted by an 11–1 majority of murder and was later sentenced to life imprisonment with a minimum term of 33 years.