Dante Morgan & Anor v R

Police custody records may be admissible business documents under Criminal Justice Act 2003, section 117, but that does not answer whether their contents are admissible as bad-character evidence. Evidence of misconduct connected with the charged offence’s investigation may fall outside bad character under section 98. Records arising from unrelated arrests do not thereby concern the charged offence.

Where such records are bad-character evidence, the statutory gateway requires a genuine important matter in issue. Evidence adding nothing to the disputed issue should not be admitted. A conviction based on circumstantial evidence is unsafe where wrongly admitted records create unneutralised prejudice and the appellate court cannot exclude their influence on the jury.

Morgan and Lambert were convicted at the Crown Court at Wolverhampton of conspiracy to commit robbery. The prosecution alleged that they had assisted a group planning violent robberies by acquiring vehicles. Its case against Lambert included fingerprint and telephone evidence. Its case against Morgan relied principally on his association and telephone contact with Lambert.

To attribute a disputed telephone number to Morgan, the prosecution relied on three police custody records from 2016, 2018 and 2020. The trial judge admitted them. Morgan appealed against conviction and sentence. Lambert renewed his application for leave to appeal against conviction and also appealed against sentence.

The central issue was whether the unrelated custody records were admissible and, if not, whether their admission rendered Morgan’s conviction unsafe.

1. The court allowed Morgan’s appeal against conviction, quashed his conviction and ordered a retrial before a different judge. It refused Lambert’s renewed application for leave to appeal against conviction. Morgan’s sentence was quashed; Lambert’s sentence appeal was adjourned pending the retrial.

2. The custody records were business documents admissible under section 117 of the Criminal Justice Act 2003 as evidence of what they stated. The factual questions whether Morgan had supplied the number, and how it came to be recorded, were matters of weight for the jury. The procedural objections to their late admission did not disclose unfairness.

3. However, the judge had not fully addressed the separate route to admissibility. The 2018 record concerned Morgan’s conduct during the investigation of the charged offence. His failure to identify the telephone he was regularly using could fall within section 98(b), and was therefore outside the statutory definition of bad character. The 2016 and 2020 records arose from unrelated arrests. They did not concern the offence charged and were probably bad-character evidence.

4. Those two records therefore required admission through section 101(1)(d). Their relevance had to be to an important matter in issue. The disputed number was Morgan’s mother’s telephone, to which he may have had access. The 2016 and 2020 records added nothing to the material issue of attribution, and should not have been admitted.

5. The error was prejudicial. The summing up did not neutralise the risk that the jury would infer that Morgan had been the subject of three criminal investigations. In a circumstantial case, the court could not exclude the possibility that this unfavourable impression influenced the verdict. The conviction was consequently unsafe.

6. Lambert’s conviction stood because the case against him was strong and did not depend on Morgan’s conviction. The court granted the Crown’s application for Morgan’s retrial and directed that the sentencing position after any reconviction be assessed afresh, subject to the statutory maximum constraint identified by the court.

• Court of Appeal (Criminal Division): In [2022] EWCA Crim 1554, the court allowed Morgan’s conviction appeal, quashed his conviction and ordered a retrial. It refused Lambert leave to appeal against conviction and adjourned his sentence appeal.
• Crown Court at Wolverhampton: On 23 December 2021, a jury convicted both defendants of conspiracy to commit robbery. On 25 March 2022, Morgan received nine years’ imprisonment consecutive to an existing sentence, and Lambert received 14 years’ imprisonment.