R v Florian Pierini & Anor

A defendant who deliberately remains abroad in breach of an obligation to surrender to custody cannot ordinarily insist on participating in criminal proceedings by live link. Granting such an application would condone continuing offending, diminish the court’s authority and undermine public confidence in the administration of justice. The civil rule in Polanski v Condé Nast Publications Limited does not provide a sufficient basis for a different result. Applications for evidence from abroad must also be made in good time, with the necessary checks as to the foreign state’s position and the practical arrangements. Bad character evidence may be admitted as important explanatory evidence where it is substantially relevant to understanding the defendant’s state of mind. It may alternatively be admissible under section 101(1)(d) of the Criminal Justice Act 2003 where it is relevant to an important issue other than propensity.

Florian Pierini was convicted in his absence of conspiracy to launder the proceeds of crime. He renewed his application for leave to appeal, challenging the refusal of permission to participate in the trial from Brazil by live link. The trial judge had found that he had deliberately absented himself and was in breach of his obligation to surrender to custody.

Jeffrey Razaq was convicted of acquiring criminal property. He appealed against conviction, challenging the admission of evidence concerning his previous involvement with MH Carbon Limited and his subsequent director disqualification. The central issues were whether that material was admissible bad character evidence and whether its admission or the jury directions rendered the conviction unsafe.

1. Pierini: The renewed application for leave to appeal was refused. The court accepted the unchallenged finding that Pierini had deliberately absented himself from the proceedings. Unlike the claimant in Polanski v Condé Nast Publications Limited and the respondent in Deutsche Bank AG v Sebastian Holdings Inc, he was subject to an operative obligation to surrender to custody and was committing an offence by failing to comply with it under sections 6(1) and 6(2) of the Bail Act 1976. Permitting participation by live link would condone continuing offending, allow him to participate on his own terms without immediate jeopardy on conviction, diminish the court’s authority and bring the administration of justice into disrepute.
2. The fact that the applicant was a fugitive was not, by itself, enough to distinguish Polanski v Condé Nast Publications Limited. The decisive distinction was that he was a fugitive from the very proceedings in which he sought to participate and was in continuing breach of a statutory obligation and court order. The same considerations prevented him from merely viewing the proceedings by live link. His fair-trial complaint failed because he had voluntarily chosen not to surrender, while remaining able to communicate with and instruct his lawyers. The court also noted that the application had been made late and without the checks required by Secretary of State for the Home Department v Agbabiaka as to the position of Brazil.
3. Razaq: The appeal against conviction was dismissed. The gateways in section 101(1) of the Criminal Justice Act 2003 are not mutually exclusive, and admissible bad character evidence is generally usable for the matters to which it is relevant, subject to the special position of propensity evidence. Evidence of Razaq’s MH Carbon experience was relevant background enabling the jury to assess his denials about his state of mind, namely whether he knew or suspected that funds received from ELP were criminal property. It was therefore admissible under section 101(1)(c), read with section 102, as important explanatory evidence.
4. The material was not admitted because Razaq was likely to have acted similarly at ELP, and the judge correctly rejected propensity as the basis under section 101(1)(d). Alternatively, it was admissible under section 101(1)(d) because it concerned an important issue between the prosecution and the defence—Razaq’s state of mind—rather than propensity. The jury directions, read as a whole, accurately explained the permissible relevance of the evidence and did not render the conviction unsafe.

Appeals dismissed in the respective forms stated above.

• Court of Appeal (Criminal Division): Pierini renewed his application for leave to appeal against conviction after the single judge refused leave. Razaq appealed against conviction with permission. Both challenges arose from convictions at the Crown Court at Southwark on 22 April 2022. The renewed application was refused and the appeal was dismissed.
• Crown Court at Southwark: A jury convicted Pierini and Razaq on 22 April 2022. Pierini was convicted in his absence; Razaq was convicted of acquiring criminal property.