REGINA v BASHAR AL-SAFEE

In criminal proceedings, evidence intended to show that a non-defendant or co-defendant was involved in earlier offending is bad character evidence and must pass a statutory gateway. Evidence outside the indictment period is not transformed into evidence of the facts of the charged offence merely because it may suggest an earlier connection. Under the Criminal Justice Act 2003, section 100(1)(b), the evidence must have substantial probative value concerning a matter in issue of substantial importance. Coincidences and speculation, without evidence that an earlier shipment contained drugs or was a test run, may fail that threshold. On sentence, an appellate court should respect the trial judge’s assessment of an offender’s role and interfere only where the finding is irrational, unsupported by the evidence or internally inconsistent.

The applicant was convicted at Southwark Crown Court on 25 February 2021 of two conspiracies involving the importation and supply of class A drugs. He was sentenced the following day to 21 years’ imprisonment.

He renewed applications for permission to appeal against conviction and sentence. He argued that the trial judge wrongly excluded evidence of earlier yam shipments, movements and convictions said to show that Mr Villegas and co-defendant Mr Lopez had been involved in drug dealing before the charged conspiracy. He also argued that he had been wrongly assessed as having a leading role. The central issues were whether the excluded material was evidence of the facts of the offences or other-person bad character evidence requiring a gateway, and whether the sentencing finding was open to appellate challenge.

The court, in a judgment delivered by Lord Justice Dingemans, refused both renewed applications for permission to appeal.

1. Conviction. The proposed evidence was intended to show that Mr Villegas and Mr Lopez had been involved in earlier class A drug offending. It was therefore bad character evidence and had to be admitted through a statutory gateway. Earlier shipments outside the indictment period were not evidence of the facts of the charged offending merely because they might suggest an earlier connection. The comparison with R v Kearney did not alter the conclusion, since admissibility depended on the circumstances of each case and the judge was entitled to treat the proposed evidence as relating to separate earlier offending (paras [27]–[31]).
2. Under section 100(1)(b) of the Criminal Justice Act 2003, the evidence required substantial probative value in relation to a matter in issue of substantial importance in the context of the case as a whole. The evidence relied principally on coincidences and speculation. There was no evidence that the earlier shipment contained drugs or was a test run. The court also noted that evidence that Mr Villegas was suspected of being a class A drug dealer had been admitted under section 100(1)(c), but that did not make the excluded material admissible. Having reviewed the record, the court found that the exclusion had not rendered the conviction unsafe (paras [32]–[35]).
3. Sentence. The trial judge had made clear findings that the applicant occupied a leading role. An appellate court could interfere if those findings were irrational, unsupported by the evidence or internally inconsistent. Those conditions were not met. The evidence concerning the creation of the fake Fruity Fresh identity, the applicant’s direction of Mr Lopez and his presence during the unloading supported the assessment. Mere disagreement with the characterisation of the role disclosed no arguable ground of appeal (paras [36]–[39]).

• Court of Appeal (Criminal Division) — On 15 March 2022, refused the renewed applications for permission to appeal against conviction and sentence.
• Southwark Crown Court — Convicted the applicant on 25 February 2021 and sentenced him on 26 February 2021 to 21 years’ imprisonment.