Boxall, R. v

Non-defendant bad-character evidence tendered by the prosecution may be admissible under section 100(1)(b) of the Criminal Justice Act 2003 where it has substantial probative value on a matter of substantial importance. Association with another offender is insufficient by itself, but may properly be considered with other evidence that rebuts an innocent explanation.

Evidence admissible under section 100 remains capable of exclusion under section 78 of the Police and Criminal Evidence Act 1984. The fairness assessment is evaluative and requires the court to weigh probative value, unfair prejudice and the adequacy of jury directions. In sentencing, a leading role does not require the offender to occupy the highest position in the criminal hierarchy.

The applicant was convicted at Kingston-upon-Thames Crown Court of conspiracy to supply 33 kilograms of cocaine and was sentenced to 22 years’ imprisonment. His co-defendant, who had pleaded guilty, received a lower sentence after being assessed as having a significant rather than leading role.

The applicant renewed applications for leave to appeal against conviction and sentence after refusal by a single judge. He challenged the admission of evidence concerning Kevin Doyle’s later conviction for cocaine supply under section 100(1)(b) of the Criminal Justice Act 2003. He also challenged his classification as having played a leading role. The central issues were whether the Doyle evidence rendered the conviction unsafe and whether the sentence was excessive or disparate.

1. Both renewed applications for leave were refused. The conviction was safe and the 22-year sentence was within the proper range.
2. The trial judge was entitled to admit the evidence concerning Doyle under section 100(1)(b) of the Criminal Justice Act 2003. The relevant issue was whether the applicant had participated in the conspiracy or had innocently accompanied his co-defendant. Doyle’s later possession of similarly high-purity cocaine, the contemporaneous telephone contact, the encrypted telephone, and the applicant’s storage of Doyle’s number as “Bagel” were capable of rebutting the applicant’s innocent explanations. The evidence was not merely guilt by association. Its proper use was clearly identified and the jury were expressly warned against improper reasoning.
3. The court held that, notwithstanding R v Braithwaite [2010] 2 Cr App R(S) 18, a defendant may seek exclusion under section 78 of the Police and Criminal Evidence Act 1984 where the prosecution relies on evidence admissible under section 100. The section 78 inquiry is an evaluative decision directed to fairness under Article 6 of the European Convention on Human Rights, not a free-standing discretion. No section 78 application was made at trial. In any event, it could not have succeeded because the evidence had substantial probative value, the asserted prejudice was confined to guilt by association, and the directions adequately neutralised that risk.
4. The sentencing judge was entitled to find that the applicant had a leading role. The cocaine’s purity, the encrypted telephone, the token banknotes, the note recording 33 one-kilogram blocks, the organisation of the transaction and the financial aspect of the enterprise supported that assessment. A leading role did not require him to be the ultimate controller. The consequent distinction from the co-defendant’s sentence was justified.

• Court of Appeal (Criminal Division): The renewed applications for leave to appeal against conviction and sentence were refused: [2020] EWCA Crim 688.
• Court of Appeal (single judge): Permission to appeal was refused before the renewed applications.
• Crown Court at Kingston-upon-Thames: The applicant was convicted by a jury on 8 May 2019 of conspiracy to supply cocaine and sentenced on 7 June 2019 to 22 years’ imprisonment.