ADMISSIBILITY

A well-known celebrity had his conviction for a historic offence of indecent assault quashed where fresh evidence undermined the credibility of one of the key prosecution witnesses. However, the court upheld the offender’s convictions for another 11 counts of indecent assault.

[2017] EWCA Crim 1849

A conviction for sexual assault was quashed where evidence which supported the accused’s belief that his former wife had encouraged her sister to fabricate the allegations had not been before the jury. The fact that the accused’s former wife had not been called as a prosecution witness was irrelevant; the jury should have had opportunity to test that evidence.

A minimum term of 10 years’ imprisonment, equating to a determinate sentence of 20 years, imposed in respect of a life sentence following an offender’s conviction for historical offences of rape and indecent assault, was reduced to six years to reflect the principle of totality of sentence. The offender had previously been sentenced to 12 years’ imprisonment for similar sexual offences committed close in time to the index offences, which effectively equated to a total sentence before reduction of 32 years.

[2017] NICA 36

Justices had erred in admitting a complainant’s evidence by way of res gestae under the Criminal Justice Act 2003 s.118 where no inquiries had been made to find out why she had not appeared at court. It was not appropriate to proceed, on a first listed hearing, with an application to admit criminal evidence by way of res gestae without a proper inquiry.

The Privy Council dismissed a husband’s appeal against his conviction for the murder of his estranged wife. Evidence of the husband’s past violence towards her showed that he bore her ill-will and had the motive and inclination to attack her. The evidence did not go to his general credibility and was therefore admissible evidence in accordance with Makin v Attorney General of New South Wales [1894] A.C. 57.

[2017] UKPC 14

In the trial of a man accused of assaulting his girlfriend where she later withdrew her complaint and refused to give evidence, a judge had been entitled to admit a statement by the girlfriend captured by a police officer’s body-worn video camera.

[2017] NICA 30

Where offenders had thrown sulphuric acid into their victim’s face, the trial judge had been correct to admit a text message sent by one of them containing a photo of the acid with the caption “this is the one face melter” as evidence of their intention to use the acid to cause the victim serious harm. The message was not hearsay because, although satisfying the Criminal Justice Act 2003 s.115(2), it did not satisfy s.115(3), as there was nothing to make the recipient believe that it would actually be used to melt a face.

[2017] EWCA Crim 533

A minimum term of 24 years imposed on an 18-year-old following his conviction for a gang-related murder would be reduced to 21 years to ensure that there was no unfair disparity between his sentence and the 17-year terms imposed on his two co-defendants, who were aged 17 and 16 at the time of the offence.

[2017] EWCA Crim 705

Convictions for robbery and murder were not rendered unsafe by the admission into evidence of a co-accused’s guilty plea. The Court of Appeal also considered the impact on the convictions of the decision in R. v Jogee (Ameen Hassan) [2016] UKSC 8 in relation to the issue of joint enterprise.

[2017] EWCA Crim 268

In a trial for conspiracy to burgle the house of a firearms licence-holder, the court had been correct to admit evidence of one defendant’s previous convictions as “important explanatory evidence” under the Criminal Justice Act 2003 s.101(c). The other evidence in the case raised serious questions which required explanation, and the bad character evidence showed that the defendant was a serious criminal who was operating with a gang to commit a series of burglaries in order to acquire the kit necessary to commit robberies.

[2017] EWCA Crim 42

A bind-over, or the conduct leading to it, would not necessarily deprive a defendant of his entitlement to an unqualified good character direction. However, the defendant would not be entitled to have a bind-over simply ignored when the judge was considering whether to treat him as a person of good character.

[2017] EWCA Crim 35

The court considered the hearsay provisions of the Criminal Justice Act 2003, including those under s.121 concerning multiple hearsay, and R. v Twist (Andrew Terence) [2011] EWCA Crim 1143, when refusing renewed applications for permission to appeal against conviction on the basis of inadmissible hearsay evidence. The trial judge had not erred in deciding that, whether or not there were arguable grounds for excluding the evidence, it was admissible in the interests of justice.

[2017] EWCA Crim 340

A conviction for murder was safe, as a purported confession to the murder, made by a person who had been mentally ill at the time and had since retracted it, was unreliable and incapable of belief.

[2017] EWCA Crim 31

Where a young and vulnerable victim had lied in her ABE interviews, it was not necessary for every aspect of the defence case to be put to her. A list of inconsistent statements could be produced and agreed with the prosecution, and adduced in evidence by way of admission.

[2017] EWCA Crim 106

In a case where experts had recommended that an intermediary be appointed to assist the defendant, the trial judge had been entitled to conclude that the intermediary should be present only when the defendant was giving evidence.

[2017] EWCA Crim 2

A judge at a Newton hearing determining whether an individual had been involved in another robbery, beyond those he had admitted to, had been entitled to admit identification evidence from a police officer despite the officer’s failure to take contemporaneous notes. It was not mandatory to exclude his evidence on that basis, and he had submitted a witness statement and been cross-examined on it at the Newton hearing.

Social media messages in which a defendant had said that she might stab her boyfriend when stressed or angry had been correctly admitted as evidence that might assist the jury in determining whether the boyfriend’s later death as a result of a knife in the heart had been an accident or a stabbing by the defendant with the necessary intent.

[2016] EWCA Crim 2237

A judge had been entitled to admit hearsay evidence in a trial for assault by beating and criminal damage. He had correctly considered whether the possibility of concoction or distortion could be disregarded when deciding to admit the hearsay evidence.

[2016] EWHC 3414 (Admin)

The court considered conjoined appeals by way of case stated which raised similar issues as to the admissibility of evidence of the amount of alcohol in a driver’s breath when the test was carried out on a Lion Intoxilyzer machine after a previous test on the same machine had recorded an “ambient fail” message.

[2016] EWHC 3014 (Admin)

Although there had been a serious failure to disclose material which undermined the credibility and reliability of a complainant in a sexual assault trial, it was clear that the jury had not relied on the complainant’s evidence and the court did not accept that a jury might reasonably have come to a different conclusion had it been aware of the further material.

[2016] EWCA Crim 2030

The court upheld an offender’s conviction for the murder of a fellow sex worker. The evidence against her, although circumstantial, was overwhelmingly strong, and the judge had not erred in admitting hearsay statements or evidence of bad character.

[2016] EWCA Crim 1712

A conviction for inflicting grievous bodily harm was unsafe following the admission of the complainant’s written statement as hearsay evidence under the Criminal Justice Act 2003 s.116(2)(c) and s.116(2)(d). The requirements of s.116(2)(c) and (d) had not been met because, although the complainant had been deported to Lithuania, there had been no attempt to make enquiries of the Lithuanian consulate or embassy about his whereabouts. If he had been located, arrangements could have been made for him to give oral evidence by video link.

[2016] EWCA Crim 1817

The court upheld a conviction for possession of a record containing information contrary to the Terrorism Act 2000 s.58(1)(b). The recorder had not erred in admitting internet material, the authorship of which had not been confirmed. The evidence did not amount to anonymous hearsay because the material had not been relied upon to establish its truth, but to show that it was strikingly similar to the material which the appellant possessed and that it was widely considered to have been written by a terrorist.

[2016] EWCA Crim 1618

A judge had properly considered the relevant principles, legislation and authorities when deciding to admit an individual’s previous convictions into evidence where it was in dispute whether a police officer had assaulted him or whether he had assaulted the police officer. The judge had also been entitled to deal with the question of whether the officer’s use of CS gas on the individual amounted to reasonable force as a matter of law rather than a factual matter for the jury.

In an appeal against its decision that a taxpayer could not zero-rate its supplies of mobile phones because no relevant export of phones had been made, HMRC was entitled to adduce evidence that the taxpayer’s freight forwarder habitually participated in VAT fraud, despite not having alleged fraud against the taxpayer. The evidence was relevant to the reliability of the evidence from the freight forwarder; the fact that it was also supportive of a case alleging fraud did not mean it should not be admitted.

[2016] EWCA Civ 1014

A recorder had not erred in refusing to admit evidence of a racially aggravated assault victim’s bad character, as the evidence consisted of mere assertions which were not admissible under the Criminal Justice Act 2003 s.100(1)(b).

[2016] EWCA Crim 2253

The threshold in the Youth Justice and Criminal Evidence Act 1999 s.41(3)(c), which permitted the victim of a sexual offence to be cross-examined about her sexual behaviour if there was a similarity between her previous alleged conduct and the act complained of, was high. The provision could not be invoked to argue that a complainant who had engaged in casual sex in the past was likely to have done so on this occasion. There had to be a sufficient chronological nexus between the past and current events, otherwise any cross-examination on the issue would not be truly probative.

[2016] EWCA Crim 1633

In a case involving missing trader intra-Community fraud, HMRC’s claim that a company, through its director, knew that certain transactions were connected to fraud was plainly an allegation of conduct that was dishonest, and the company understood the case against it. Under the first limb of the test in Kittel v Belgium (C-439/04) EU:C:2006:446, the First-tier Tribunal had only to determine whether the company, through its director, knew of the connections to fraud, HMRC did not have to show that the director was dishonest.

[2016] UKUT 436 (TCC)

Where a defendant had been accused of raping a child under 13 a judge had been entitled to admit evidence regarding alleged lies that he had told a woman with young children, unrelated to the victim, regarding his past. The evidence was relevant as it had been open to the jury to conclude that the purpose of any deception was so that the defendant could ingratiate himself with a family and so was capable of providing support to the Crown’s case that the defendant’s real interest was the children.

[2016] EWCA Crim 1462

A judge in a manslaughter trial had been right to refuse to admit evidence of the deceased’s alleged bad character in respect of allegations of drug misuse and sexual abuse. The allegations were not relevant to the issues in the case.

[2016] EWCA Crim 1849

In a sexual abuse case a judge had been entitled to leave to the jury medical evidence of an injury that was consistent with constipation as well as penile penetration. The evidence had been presented fairly, it had been made clear that such an injury did not prove that there had been any abuse, and it was also emphasised that it was ultimately a matter of assessing the credibility of the witnesses.

[2016] EWCA Crim 1658

A trial in respect of one defendant and a Newton hearing in respect of his co-defendant should not have been heard together where it was clear that the judge would have to make findings at the conclusion of the trial which could make it impossible for the co-defendant’s evidence to be fairly considered at the Newton hearing. In addition, the evidence of the co-defendant at the trial was inadmissible because he was neither a witness for the Crown nor for the defendant.

[2016] EWHC 1976 (Admin)

The court confirmed the correct approach to the admissibility of a third party’s conviction under the Police and Criminal Evidence Act 1984 s.74. The admission of such evidence would often raise difficulties for the defence, but the key factor was not whether it created difficulty but whether it created unfairness. It remained a fair and proper approach where there was no doubt that an offence had been committed and the only question was whether the present defendants had been party to it.

[2016] EWCA Crim 1048

In a prosecution brought by the Serious Fraud Office against a company for alleged corruption/bribery, a judge had erred in allowing a defence application under the Police and Criminal Evidence Act 1984 s.78 to exclude from evidence diary entries made by a “directing mind” of the company who was not a party to the proceedings. The judge had applied both the identification principle and the “three-pronged acts or declarations test”, when only the former was relevant.

[2016] EWCA Crim 1469

A judge had not erred in refusing to sever an indictment where during an aborted drug deal the appellant had been the victim of a kidnap by his co-defendants and following the deal he was the perpetrator of a kidnap of an associate. The indictments had been properly joined, as evidence in one kidnap was very likely to be referred to in the course of evidence about the other, and a single jury was in the best position to try both sets of charges.

[2016] EWCA Crim 1797

The court considered the admissibility of fresh evidence under the Criminal Appeal Act 1968 s.23 in appeals against sentences. It was in the interests of justice to admit evidence of the deficiencies in an expert’s report about the dangerousness of a dog that was ordered to be destroyed. If there was to be a trial of a key fact in determining whether there were exceptional circumstances to depart from the mandatory five-year sentence for firearms offences, it should be treated as a Newton hearing.

[2016] EWCA Crim 801

A conviction for perverting the course of justice was unsafe where the defendant had been cross-examined regarding a statement made in police interview by a co-accused who had not attended trial. The statement should not have been adduced and the defendant should not have been cross-examined on it.

[2016] EWCA Crim 700

The appellant’s conviction for assault occasioning actual bodily harm, committed against a neighbour, was not rendered unsafe by the trial judge’s refusal to allow him to adduce evidence of the neighbour’s bad character in the form of allegations that the neighbour had a history of threatening behaviour towards him. All of the material relied on amounted to unsubstantiated allegations about matters which had not been proven against the neighbour.

[2016] EWCA Crim 839

Fresh evidence that an individual had been tried and acquitted in Iran of people smuggling would be admitted at his appeal against an order for extradition in respect of people smuggling offences in Germany. The issue of double jeopardy had not been raised at the extradition hearing because of misplaced assurances from counsel for the requesting state, and the evidence related to the same offences.

The trial judge had been justified in admitting evidence of gang affiliation in the trial of the three appellants, who were being charged with offences arising from their alleged involvement in what was said to be a gang-related shooting.

[2016] EWCA Crim 668

A recorder had misdirected a jury in relation to conduct referred to in a count of indecent assault that might have occurred before the defendant’s 14th birthday. He had failed to direct that the defendant’s guilty knowledge had to extend beyond the evidence of the acts amounting to the offence itself.

[2016] EWCA Crim 674

A judge had been entitled to admit as hearsay evidence under the res gestae principle an emergency 999 telephone call in which the victim stated that her husband had beaten her up and that she was scared. The judge had ruled out concoction and distortion, and had considered a number of factors other than just the timing of the event in doing so.

The appellant’s conviction for supplying cannabis, which was based on the contents of mobile phones found in a car occupied by him and another man, was rendered unsafe by the judge’s failure to allow him to adduce in evidence the other man’s previous convictions for possessing Class A drugs with intent to supply. Confirmation that the other man was a professional drug dealer, which was what his convictions showed, would have added real weight to the defence case that the phones, albeit on their face implicating the appellant, belonged to the other man.

[2016] EWCA Crim 879

In a murder case in which the defendant was accused of stealing items belonging to the deceased, the trial judge had been entitled to allow the prosecution to adduce in evidence the defendant’s previous convictions for robbery and aggravated theft.

[2016] EWCA Crim 673

Whilst the judge at the appellant’s trial for rape had not conducted the correct judicial exercise in refusing to allow the appellant to adduce evidence of the victim’s previous allegations of rape and to cross-examine her in relation to them, it was not possible to argue that there had been a clear evidential basis on which to mount a cross-examination and the judge had been right to refuse the application.

An indictment which referred incorrectly to the legislation breached as an indecent assault on a woman but the victim was male did not render the conviction unsafe. It was a technical drafting error. Both offences carried the same sentence and the error had caused no prejudice, nor had the trial been unfair.

[2016] EWCA Crim 454

An offender’s convictions for nine counts of obtaining money by deception were safe. Evidence adduced by the Crown in the course of the trial was correctly characterised by the judge as admissible under the Criminal Justice Act 2003 s.98, being matters that had to do with the offences charged rather than bad-character evidence.

[2016] EWCA Crim 2267

An appeal against a rape conviction was allowed in light of fresh evidence concerning the complainant’s sexual relationships with third parties. Their accounts of her sexual behaviour were arguably sufficiently similar to that alleged by the appellant as to come within the terms of the Youth Justice and Criminal Evidence Act 1999 s.41(3)(c)(i). The situation was an example of a rare case where it was appropriate to allow forensic examination of a complainant’s sexual history with third parties.

[2016] EWCA Crim 452

A recorder had properly directed the jury that gang-related evidence, admitted under the Criminal Justice Act 2003 s.98, went to the issue of the intent of a 19-year-old offender charged with possession of a firearm with intent to endanger life. A sentence of 11 years’ detention, although severe given the offender’s age, was not manifestly excessive or wrong in principle.

[2016] EWCA Crim 447

A judge had been entitled to admit into evidence a video recording of a police interview with a child complainant who was unable to attend trial. The interview could be admitted despite her mother, another key witness, being present during the interview in breach of Ministry of Justice guidelines.

[2016] EWCA Crim 598