R v Faruque Hussein

Under section 101(1)(d) of the Criminal Justice Act 2003, earlier bad character evidence may be relevant to an important issue such as a defendant’s knowledge or suspicion that later goods were illicit, even where the earlier goods were unrelated to the conspiracy. Admission should be refused only where its adverse impact makes the proceedings unfair. Clear and repeated directions can adequately address a risk that the jury will conflate separate transactions. Temporal proximity and circumstances such as an unusually low price may give the earlier evidence probative force.

The appellant was one of three defendants convicted at Luton Crown Court of conspiracy to cheat the public revenue of excise duty. He was sentenced to three years and four months’ imprisonment. The prosecution alleged that he helped sell illicit hand-rolling tobacco. The trial judge admitted text messages exchanged with another customer before the indictment period, which indicated that the appellant knew he was dealing in fake tobacco. Admission was permitted under section 101(1)(d) of the Criminal Justice Act 2003.

The appellant appealed against conviction, arguing that the earlier messages were unrelated to the conspiracy and had minimal probative value, while creating a real risk of jury confusion. The central issue was whether the evidence was admissible and, if so, whether its admission adversely affected the fairness of the proceedings.

The Court of Appeal (Criminal Division) dismissed the appeal against conviction.

1. The earlier messages were plainly admissible under section 101(1)(d) of the Criminal Justice Act 2003. They were relevant to the important issue whether the appellant knew or suspected that the tobacco supplied by Mr Kim during the conspiracy was illicit.

2. The fact that the messages concerned different tobacco and pre-dated the indictment period did not remove their probative value. Objectively viewed, the conversation occurred shortly before the alleged conspiracy and involved discussion of fake tobacco. The subsequent supply of tobacco by Mr Kim at a very low price could support an inference that the appellant appreciated that something was wrong.

3. The remaining question was whether admission had such an adverse impact on fairness that the evidence should have been excluded. The asserted risk that the jury would conflate the earlier and later transactions was illusory. The judge gave clear directions not to treat knowledge concerning the earlier tobacco as equivalent to knowledge concerning the conspiracy. The jury were repeatedly reminded of the temporal and factual distinction by the judge, the Crown and the defence.

4. The jury were entitled to conclude that the messages supported the prosecution case on knowledge. There was no reason to believe that the jury ignored the directions, and the conviction was safe.

• Court of Appeal (Criminal Division): In [2025] EWCA Crim 1125, the court dismissed the appeal against conviction.
• Crown Court at Luton: On 2 December 2024, the appellant was convicted of conspiracy to cheat the public revenue of excise duty and sentenced to three years and four months’ imprisonment.