REGINA v CHRISTOPHER COLE

Bad-character evidence may properly be admitted where it goes directly to a central issue, even if there has been no previous prosecution or conviction. The trial judge is entitled to evaluate the strength of the prosecution case and whether the evidence is being used merely to bolster a weak case.

In deciding whether admission would be unfair under Criminal Justice Act 2003, section 101(3), the court may consider the evidence’s importance, the risk of satellite litigation and the practical extent of the additional evidence. A jury may be invited to draw an adverse inference from a matter first raised at trial where the defendant could reasonably have mentioned it in interview.

The applicant was convicted of murder at Lewes Crown Court after his partner was found dead in a tent they shared. The medical evidence left two possible causes of death: sudden arrhythmic death syndrome or smothering. The prosecution relied on evidence of a quarrel and choking noises heard by nearby campers.

Over defence objection, the trial judge admitted evidence from a former girlfriend that the applicant had previously acted in a jealous, violent and controlling way, including restricting her breathing. The applicant renewed, following refusal by a single judge, his application for leave to appeal against conviction. He challenged the bad-character ruling and the judge’s decision to leave three alleged interview omissions as possible adverse inferences.

1. The court refused the renewed application for leave to appeal against conviction. None of the proposed grounds was arguable.

2. The trial judge was entitled to admit the former girlfriend’s evidence under section 101(1)(d) of the Criminal Justice Act 2003. Its relevance was direct and substantial: it bore on the central disputed question of how an otherwise healthy woman died, and on the defence contention that her death was coincidental. The absence of a prior prosecution or conviction did not prevent that evaluation.

3. The judge was also entitled to reject the contention that the prosecution case was weak and that the evidence was being used merely to bolster it. The contemporaneous notes and messages made by campers provided a proper basis for viewing the prosecution case as potentially strong, despite inconclusive forensic evidence and later criticisms of witness reliability.

4. There was no unfair prejudice requiring exclusion under section 101(3). The evidence was confined, was dealt with in about a day, and did not create undue satellite litigation or distract the jury from its central task. The situation was materially unlike that in O'Dowd [2009] EWCA Crim 905.

5. The three matters first advanced by the defence at trial, but not mentioned by the applicant in interview, were properly left to the jury as potential adverse inferences. Each was a matter which could reasonably have been raised in interview. The summing-up gave legally correct directions on both bad-character evidence and the permitted use of interview silence.

• Court of Appeal (Criminal Division) Refused the renewed application for leave to appeal against conviction, following refusal by a single judge.

• Crown Court at Lewes The applicant was convicted of murder by a jury on 25 June 2021.