Fanta & Anor v The Queen

In a cut-throat joint trial, an important matter may arise between co-defendants even if neither expressly alleges that the other committed the offence, where the evidence logically points to one or both being responsible. Evidence linking a defendant’s fingerprint to an earlier drug importation may have substantial probative value under section 101(1)(e) of the Criminal Justice Act 2003 when it bears on the credibility of an innocent-association explanation and the issue of coincidence, rather than being used to show propensity. Judges must clearly explain the purpose, limits and safeguards governing bad character evidence. An imperfect direction does not necessarily make a conviction unsafe where its purpose is clear and the summing-up prevents unfair use. Trial tactics ordinarily belong to counsel, subject to consultation with the defendant where practicable.

Adrian Fanta and Gabriel Iutes were convicted at Canterbury Crown Court of knowingly being concerned in the fraudulent evasion of the prohibition on importing cocaine. They challenged their convictions and sought extensions of time and leave to appeal.

Fanta argued that his counsel had wrongly advanced a cut-throat defence, amended the defence statement without authority and improperly relied on Iutes’s bad character. Iutes argued that evidence of his fingerprint on a receipt connected with an earlier cocaine importation should not have been admitted under section 101(1)(e) of the Criminal Justice Act 2003, or that the jury had not been properly directed. The central issues were whether there was an important matter between the co-defendants, whether the evidence had substantial probative value, and whether the convictions were unsafe.

Disposition. The court granted both extensions of time and leave to appeal, but dismissed both appeals against conviction.

1. Cut-throat defence and counsel’s role. The evidence made this a paradigmatic cut-throat defence. Each appellant’s case implicated the other, and neither identified a credible third person who could have placed and later retrieved the drugs. The fact that such a defence may cause consequential damage does not make it incompetent where the evidence makes it unavoidable. The court accepted that Fanta had supported the strategy and that counsel’s tactical decisions were properly made. Subject to limited matters such as whether the accused gives evidence, trial tactics are ordinarily for counsel or the advocate. The defendant’s views should be discussed and recorded where practicable. The court applied Farooqi [2013] EWCA Crim 1649 and approved the practical guidance in Anderson [2010] EWCA Crim 2553.
2. Bad character gateway. Section 101(1)(e) of the Criminal Justice Act 2003 requires substantial probative value in relation to an important matter in issue between a defendant and a co-defendant. Under section 112, the matter must be of substantial importance in the case as a whole. Following Phillips [2011] EWCA Crim 2935, an important matter may exist where the co-defendants are impliedly blaming one another. The earlier fingerprint evidence was relevant bad character evidence. It materially bore on whether Iutes’s explanation for the current fingerprint was innocent and whether the two associations were merely coincidental. It was not admitted to demonstrate propensity, and section 104 was not engaged. The court also found assistance in R v Hay [2017] EWCA Crim 1851.
3. Jury directions. The judge should have given fuller directions explaining the purpose, limits, weight, credibility implications and prejudice risks of the evidence, including that it could not alone or mainly support conviction. As explained in R v Donald Adams [2019] EWCA Crim 1363, bad character evidence cannot be left uncontrolled. However, the summing-up clearly identified the evidence’s purpose and directed the jury to assess it with the whole case. In the particular circumstances, there was no appreciable risk of unfair prejudice, misunderstanding or undue weight. The directions therefore did not render the conviction unsafe.
4. Other grounds. Evidence introduced at an accused’s behest could be used for any relevant purpose, subject to proper judicial control, applying Edwards [2005] EWCA Crim 1813. The late email relied on by Fanta was not admitted because the required fresh-evidence procedure under section 23 of the Criminal Appeal Act 1968, including proper witness material under section 9 of the Criminal Justice Act 1967, had not been followed.

1. Crown Court at Canterbury: On 25 May 2018, before Recorder Jonathan Davies and a jury, both appellants were convicted of knowingly being concerned in the fraudulent evasion of the prohibition on importing cocaine, contrary to section 170(2) of the Customs and Excise Management Act 1979. Each was sentenced to 11 years’ imprisonment.
2. Court of Appeal (Criminal Division) [2021] EWCA Crim 564: Extensions of time and leave to appeal were granted. Both appeals against conviction were dismissed.