R v Omar Malik & Ors

Bad character evidence may be admitted to support both propensity and attribution where the conviction has a striking similarity to the conduct charged. Its age is relevant, but does not make it inadmissible. A jury direction need not address a wholly hypothetical risk of confusion.

A judge may deal with a general jury request for expert evidence by asking the jury to identify the material they wish to have recalled. The judge is not required to provide a written document and may give an oral reminder. In sentencing, each offence should be sentenced separately before applying totality. Medical conditions relevant to mitigation must be considered separately from dangerousness and future risk.

Six defendants were prosecuted in the Crown Court at Manchester for conspiracies involving the supply of drugs and firearms. Four defendants sought renewed leave to appeal against conviction or sentence, one appealed against sentence, and one pleaded guilty before a different judge and sought leave to appeal against sentence.

The conviction applications raised issues concerning bad character evidence, jury directions, expert evidence, no-comment interviews, cross-examination and alleged shortcomings in representation. The sentence appeals concerned culpability, totality, dangerousness, the correct sentencing guideline, disparity and medical mitigation.

1. Conviction applications. Mr Malik’s renewed applications for leave and an extension of time were refused. His 2007 firearms convictions were relevant and admissible under both gateway routes relied on by the prosecution. The trial judge was entitled to consider their age, his age at the time, the unusual nature and striking similarity of the weapons, and the evidence supporting attribution of the Encro handle “payyabills”. The conviction was relevant to the drugs counts through attribution, although it was not evidence of propensity to commit drugs offences. The jury direction was clear and fair (paras [25]-[31]).
2. A judge may remind the jury of the salient features of a defence case at convenient points during the summing-up. A separate section is not required where the substance of the case has been fairly explained. A general request for expert evidence may properly be answered by inviting the jury to identify the material they wish to have recalled. The judge may then remind them orally and need not provide a written document (paras [32]-[42]).
3. The absence of a McGarry direction caused no unfairness. Section 34 of the Criminal Justice and Public Order Act 1994 did not require a positive direction where the defendant did not give evidence and no section 34 direction was available. A further direction could have caused prejudice (paras [43]-[45]). Mr Cooney’s renewed conviction application was also dismissed because the Nokia-phone evidence was disclosed, relevant and admissible, and the trial judge was best placed to assess the alleged procedural unfairness.
4. Sentences. Mr Cooney’s sentence appeal was dismissed. The firearms conspiracy justified a sentence above the guideline range because of its exceptional scale, the multiplicity and nature of the weapons, the conspiracy and his direct involvement. Encrypted phones could aggravate each offence; totality was addressed after sentencing each offence separately. His dangerousness finding and extended sentence were justified (paras [60]-[74]).
5. Mr Hogan’s appeal was allowed. An offence under section 5(1)(b) of the Firearms Act 1968 did not attract the five-year minimum under section 311 and Schedule 20 of the Sentencing Code. The wrong guideline table had been used. The sentence was quashed and replaced with 12 months’ custody concurrent with the sentences on counts 6 and 7 (paras [75]-[80]). Mr Waters’s application was dismissed. Mr Gonzalez was granted leave but his sentence appeal was dismissed. His medical condition was relevant both to dangerousness and mitigation, which were separate questions, and his 25-year sentence was not manifestly excessive. The disparity test in R v Fawcett was not met (paras [81]-[100]).

• Court of Appeal (Criminal Division): [2025] EWCA Crim 1482. Renewed applications by Mr Malik, Mr Cooney and Mr Waters were refused or dismissed. Mr Cooney’s sentence appeal was dismissed. Mr Hogan’s sentence was quashed and replaced with 12 months’ custody. Mr Gonzalez was granted leave but his appeal was dismissed.
• Crown Court in Manchester (Minshull Street): six defendants were tried before Her Honour Judge Baxter. Mr Gonzalez pleaded guilty before His Honour Judge Potter and was sentenced by him.