REGINA v PIERS PORTMAN

For bad-character evidence against a non-defendant under the Criminal Justice Act 2003, the question is whether it has substantial probative value on a matter in issue of substantial importance. The judge must examine whether it could assist a fair-minded jury in assessing the witness’s credibility. A conviction being quashed does not, without a clear basis, establish that the witness knowingly lied. Evidence falling short of that inference may properly be excluded. An adjournment or abuse-of-process stay is discretionary and depends on fairness, the utility of the evidence, delay and the integrity of justice.

Following a five-day trial at Southwark Crown Court, the applicant was convicted of intentionally causing racially aggravated harassment, alarm or distress contrary to section 31(1)(b) of the Crime and Disorder Act 1998. He was sentenced to four months’ imprisonment and ordered to pay compensation and prosecution costs.

After a single judge refused leave to appeal, the applicant renewed his application. The grounds concerned an adjournment for absent witnesses, the exclusion of bad-character evidence about the complainant, an abuse-of-process stay, proposed cross-examination about disciplinary proceedings, and judicial questioning concerning Holocaust denial. The central issue was whether any ground was arguable and whether the conviction was unsafe or the trial unfair.

The Court of Appeal refused the renewed application for leave. It agreed entirely with the single judge’s reasons and held that no ground was arguable, that the conviction was not unsafe and that the trial was fair.

1. Absent witnesses and adjournment. The trial judge properly exercised his discretion by balancing the age of the case, the uncertain availability of the witnesses and the likely value of their evidence. Their evidence was adverse to the applicant and, at most, could have been used to expose discrepancies in accounts made long after the event. The applicant had not been deprived of exculpatory evidence.
2. Abuse of process. The prosecution’s communication failures were unsatisfactory, but the suggestion that a witness had deliberately made himself unavailable was speculative. Proceeding without him was in fact advantageous to the applicant. The circumstances did not prevent a fair trial and did not require a stay to protect the integrity of the criminal justice system.
3. Bad character evidence. Applying section 100(1) of the Criminal Justice Act 2003 and R v Brewster [2010] EWCA Crim 1194; [2011] 1 WLR 601, the court treated substantial probative value as the central question. The complainant’s credibility was a matter in issue of substantial importance, but the quashed conviction did not establish that he had been disbelieved or had knowingly lied. Without a transcript or reliable evidence of the earlier reasons, the material did not substantially assist assessment of his creditworthiness. The separate unprosecuted complaint had no probative value.
4. Other matters. Disciplinary findings concerning a person who was not to give evidence could only have affected his credit as a witness and were therefore irrelevant and inadmissible. The judge’s question concerning Holocaust denial was not pejorative, gave the applicant an opportunity to respond and added nothing material to the evidence. No contemporaneous complaint had been made.

• Court of Appeal (Criminal Division) — In [2022] EWCA Crim 1200, the renewed application for leave to appeal was refused.
• Single judge — Refused leave to appeal.
• Southwark Crown Court — Convicted the applicant on 7 September 2021 and sentenced him on 22 October 2021 to four months’ imprisonment, with compensation and prosecution costs orders.