Umo & Anor v R.

Under section 100(1)(b) of the Criminal Justice Act 2003, evidence of a non-defendant witness’s bad character is admissible where it has substantial probative value on a matter of substantial importance. Section 109 requires the court ordinarily to assess that value on the assumption that the evidence is true, although the court must still consider whether the jury can fairly resolve the issue without an undue satellite trial.

Hard evidence capable of supporting an allegation that a key witness made a false serious complaint may satisfy that test. If its wrongful exclusion prevents effective challenge to a central witness, a conviction is unsafe where the remaining evidence does not necessarily sustain it.

A sentencing court applying totality must consider the sentence that would have been imposed for all related offences together, and adjust the separate sentence so that the aggregate is just and proportionate.

Umo was convicted at Woolwich Crown Court of possessing a prohibited firearm and two assaults on Anouska Maduro, a principal prosecution witness. Before the trial evidence concluded, Umo sought permission under section 100 of the Criminal Justice Act 2003 to adduce material said to show that Maduro had attempted to blackmail a key worker by threatening a false sexual allegation. The judge refused the application.

Benjamin had pleaded guilty to unlawful wounding, robbery and possessing a firearm with criminal intent arising from an armed revenge attack. His resulting sentence of nine years and eight months was consecutive to a pre-existing ten-year sentence imposed for later offences, including possession of the same revolver.

Umo appealed against conviction and Benjamin appealed against sentence. The central issues were the admissibility and effect of the proposed witness bad-character evidence, and whether Benjamin’s aggregate sentence properly reflected totality and dangerousness.

1. Umo’s appeal was allowed. The court granted her extension of time, granted leave, and quashed her convictions on counts 5, 6 and 7.

2. Credibility was a matter in issue and of substantial importance under section 100(1)(b) of the Criminal Justice Act 2003. The question was whether the alleged misconduct was reasonably capable of assisting a fair-minded jury in deciding whether Maduro’s evidence was worthy of belief. By section 109, the court was generally required to assess probative value on the assumption that the proposed evidence was true, unless no court or jury could reasonably find it true.

3. That assumption did not automatically establish admissibility. The court was entitled to consider whether the jury could resolve the collateral issue without a distracting second trial. Here, however, St Hilaire’s account and the contemporaneous text message were separate direct strands of hard evidence. They provided a proper prima facie basis for the allegation that Maduro had threatened a false serious complaint for financial gain. The evidence could have been dealt with shortly. The judge therefore erred in treating the issue as irresolvable and in refusing the application.

4. Maduro was the central witness on all three counts. The remaining evidence did not necessarily establish firearm possession if the jury doubted her account. Her evidence was indispensable to establish that she was the victim of the two assaults. The convictions were consequently unsafe. It was unnecessary to determine Umo’s alternative modern-slavery ground.

5. Benjamin’s appeal against sentence was allowed in part. His complaints about the robbery category and disparity with Newton failed. The robbery was properly treated as category 1A, and concurrent sentences for the wounding and firearm counts avoided double counting.

6. The sentencing judge had nevertheless failed to apply totality. He did not consider the sentence that would have been imposed had all offences been sentenced together, nor make the adjustment needed to secure a just and proportionate aggregate. The court assessed the appropriate overall sentence as a little over 12 years after plea credit.

7. Benjamin posed a significant risk of serious harm from further specified offences, and the reduced custodial aggregate alone would not protect the public. The court quashed the robbery sentence and substituted an extended sentence of 13 years and 6 months, comprising 10 years and 6 months’ custody and a three-year licence period, concurrent with the Inner London Crown Court sentence. It also substituted five years’ imprisonment concurrent on count 4. The concurrent 25-month sentence on count 2 remained.

• Court of Appeal (Criminal Division): Umo’s appeal against conviction was allowed and her convictions on counts 5, 6 and 7 were quashed. Benjamin’s appeal against sentence was allowed to the extent of substituting concurrent sentences, including an extended sentence for robbery: [2020] EWCA Crim 284.

• Woolwich Crown Court: Umo was convicted by a jury on counts 5, 6 and 7 and sentenced by HHJ Miller. Benjamin pleaded guilty to counts 2, 3 and 4 and was sentenced to a total of nine years and eight months’ imprisonment, consecutive to a sentence imposed at Inner London Crown Court.