Character of accused - Bad character

R v Williams: Court of Appeal, Criminal Division (Lord Justice Richards, Mr Justice Keith, Mr Justice Nicol (judgment delivered extempore)): 23 September 2011

The police executed a search warrant at the defendant's home. An initial search with a trained police dog (the initial search) revealed £3,500 cash in the bedroom. The defendant said that he sold, inter alia, 'stuff' and 'watches' and that he had received a number of loans over the previous two or three years. A second search of the premises (the second search) uncovered, inter alia, 76g of cannabis and some electronic scales in a waste bin. Upon the second search, the drugs were said to have been seized by one officer, but the search book, the original of which was subsequently unable to be produced as evidence, stated that they had been seized by another officer.

The defendant denied any knowledge of the cannabis and said that the police had planted the drugs which he subsequently maintained in interview. The prosecution case was that the cannabis belonged to the defendant, that he had intended to supply it and that the cash found was the proceeds of drug dealing. The defendant's case was that he knew nothing about the drugs, that the police had planted them in his house and that the cash found was derived from loans he had received.

The prosecution applied to adduce evidence of three previous convictions of the defendant for possessing a controlled drug with intent to supply (the 1993 convictions) and convictions for simple possession on the basis that the defendant had made an attack on the character of the police. The defendant objected to the application in so far as it related to the 1993 convictions and invited the judge to exclude the 1993 convictions on the basis that there was a danger that the jury would use such evidence as evidence of propensity.

The judge allowed the prosecution to adduce the 1993 convictions. The defendant was subsequently convicted, by a majority of 11:1, of possession of the Class B drug cannabis with intent (count one) and possession of criminal property (count two). He was sentenced to six months' imprisonment in respect of count one and three months' imprisonment in respect of count two, to be served concurrently. The defendant appealed against conviction.

He submitted: (i) that the judge had erred by allowing into evidence the 1993 convictions and that they had had huge potential to prejudice the defendant's case; and (ii) that, having allowed into evidence the 1993 convictions, the judge, in his directions, had erroneously given the jury discretion to regard the 1993 convictions as relevant to the defendant's propensity to be involved in drug dealing and that he had failed to ensure that the jury would consider them only in the context of the credibility of the defendant's attack on the police. The appeal would be allowed.

Whilst the 1993 convictions had not been relied upon as evidence of the defendant's propensity to commit drug dealing offences, there was a clear risk of the jury treating them as such once they had known about them. There was some force in the argument that the prejudicial effect of admitting the 1993 convictions into evidence was liable to outweigh their probative value. It might however have been possible that the prejudice could have been reduced to an acceptable level by sufficient directions by the judge to the jury.

Unfortunately, the directions given by the judge had not had that effect. He had not directed the jury in clear terms as to the limited purpose for which the 1993 convictions were before them. His loose terms had left it open to the jury to use the 1993 convictions in an impermissible way. Accordingly, the court was satisfied that the 1993 convictions, if admitted, should have been the subject of much stronger and clearer directions. There had been a failure by the judge to give such directions.

The question to be answered was accordingly whether that error had affected the validity of the conviction. At first sight, the case against the defendant appeared to be strong, but there were a number of features which suggested that the case was a finely balanced one, inter alia: (i) the fact that the drugs had not been discovered upon the initial search; (ii) the fact that upon the second search, the drugs had been said to have been seized by one officer, but the search book had stated that they had been seized by another officer; (iii) the fact that original search book had not been able to be produced; and (iv) the fact that the verdict of the jury had been a majority decision rather than a unanimous one.

Taking all such matters into account, it had to have been a real possibility that the jury had been inappropriately influenced by the 1993 convictions when reaching their verdict. It could not be said that the error by the judge had had no effect on the outcome of the case. The convictions would be quashed.

Matthew Groves (assigned by the Registrar of Criminal Appeals) for the defendant. Rupert Gregory (assigned by the Registrar of Criminal Appeals) for the defendant.