England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
Mr Justice Saunders
T20110322

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/02/2013

The Lord Chief Justice of England and Wales:

1. This is an appeal by Jamshid Ali Dizaei against his convictions at Southwark Crown Court before Saunders J and a jury on 13 February 2012 of misconduct in a public office and perverting the course of justice. This was a retrial, the appellant's convictions at an earlier trial having been quashed by this court.
2. The incident which gave rise to these convictions occurred on 18 July 2008. At that time the appellant was a career police officer who had attained the very senior rank of Commander in the Metropolitan Police. The case against him was that he abused the power and authority of his office to arrest and detain and then make false complaints of threat and assault by Wad Al-Baghdadi (WAB) (otherwise known as Malechi or Meladi) on spurious grounds. WAB, a dishonest man of bad character, was engaged by the appellant in 2008 to use his expertise in computing to create a web-site for him. The incident on 18 July represented the culmination of the dispute which developed between them over the work done and the absence of payment for it.
3. The successful appeal following the first trial was based on emerging evidence that, contrary to the way in which the case had been presented to the jury, WAB was not a man of good character and in particular, that he was not the honest, decent young business man portrayed by the Crown. Accordingly, given that the jury had approached his credibility under a complete misapprehension about his true character, and therefore started their assessment of the two main protagonists as if they were both men of equally good character, the conviction was quashed and the new trial ordered. (See [2011] EWCA Crim 1174.)
4. There is a single ground of appeal against conviction. WAB's bad character was at least in part put before the jury. However Saunders J decided that there were three additional areas of material relating to his character which in accordance with s.100(1) of the Criminal Justice Act 2003 (the 2003 Act) were inadmissible. The argument, in brief, is that his decision in relation to each of these three areas of evidence was flawed, that the appellant should have been allowed to adduce the evidence, and that the ruling that prevented him from doing so renders the convictions unsafe.
5. Before we address these contentions, we must briefly summarise the background. There was an agreement between WAB and the appellant that WAB would create a web-site for the appellant and would be paid for his services. The cost was in the region of £500-£600. When the work was completed, or nearly so, a dispute broke out. WAB sought payment and when it was not forthcoming, in accordance with a written warning to the appellant, he suspended the web-site. The appellant's position was that he did not pay because he was not satisfied with the quality of the work.
6. In the way in which these disputes sometimes evolve, WAB and the appellant saw each other from time to time, without attempting to resolve the problem until an occasion in the early summer when they bumped into each other in a restaurant. The appellant spoke to WAB, questioning why the web-site had been closed down after 90% of the work had been completed, and told him that he was behaving like a child. WAB said that he had worked on the web-site for months, and that the appellant had ignored him. They agreed to meet at the appellant's office in Canon Row Westminster on 11 July 2008.
7. At that meeting WAB said that the web-site was reviewed. A number of amendments were suggested, the appellant was "totally happy" and agreed the fee of £600, payment to take the form of two cheques for £300 each, one to be presented that month, and the second on the following month. The appellant said that he did not have his cheque book with him but that he would leave the first cheque for collection at a restaurant in West London known as Yas, of which the owner was Mr Eshragi, who was known to both men. The appellant offered a very different account of this meeting. He was troubled about a number of different aspects of the website and very disappointed to learn that notwithstanding the concerns he had expressed to WAB, it had already gone live. He therefore told WAB to remove the website. There was no discussion about money, and he did not agree to pay for the website or to make any payments by cheque.
8. On 14 July WAB went to Yas restaurant and spoke to Mr Eshragi. There was no cheque awaiting collection. He returned a few days later, but there was still no cheque. He telephoned the appellant and left voicemails which were ignored. According to the defence case statement WAB appeared "to feel annoyed and angry when the defendant did not respond to his communications".
9. On 18 July, in another voicemail, WAB told the appellant that the website was suspended and would remain suspended until the cheques were received. Later that evening WAB drove to Yas for an evening meal. As he walked towards the restaurant he noticed the appellant, in uniform, sitting in the driver's seat of his car, parked directly in front of the restaurant. His wife was sitting in the front passenger seat, and Mr Eshragi was standing on the pavement talking to them through the open passenger window. They had finished their meal and were about to leave at the time when WAB arrived.
10. An argument developed between WAB and the defendant about the website and payment and the appellant's failure to respond to WAB's telephone calls. At trial each said that the other was the more aggressive. When the argument began WAB was speaking into the appellant's car, but the appellant left the driver's seat, and the argument continued on the pavement at the front of the car. It lasted something less than two minutes. With that the appellant returned to his car and WAB entered the restaurant and sat at a table.
11. The appellant did not drive away. He re-entered the restaurant and ordered WAB to leave. He then returned to his car. WAB did not wish to leave, but after a short conversation with Mr Eshragi he did so some three or four minutes later. As he left, the appellant was still sitting in his car. WAB did not return to the car, but he turned left along the pavement and walked away. Shortly afterwards the appellant's wife left the car and went to sit at one of the restaurant tables on the pavement, leaving the appellant still in his car. At this stage WAB made a mobile telephone 999 call, which began at 23.12:34. He complained that he was being bullied by the appellant, whom he named and identified as a senior police officer, who was, in effect, abusing his position. While he was on the telephone he kept on walking and did not look back. According to his account, as he turned into Avonmore Road he heard a loud voice which he recognised as the appellant's and he turned around and saw the appellant's car approaching.
12. The appellant's account was that he had received a torrent of abuse from WAB as he sat in his car, getting ready to leave the restaurant, so he left it and remonstrated with him and warned him that he would be in trouble if his behaviour continued. After WAB had entered the restaurant, Mr Eshragi asked him to get WAB to leave, which he did. He went into the restaurant and spoke quietly to WAB and asked him to leave, he then returned to his car, where Mr Eshragi asked the appellant to wait. He then saw WAB facing Mr Eshragi and rolling up his sleeves, "spoiling for a fight". He was very concerned for Mr Eshragi, so he decided to remain but, at this stage, decided not to call for police assistance, as this would be disproportionate. WAB then left the restaurant saying, "I will beat you up", and walked to the junction with Avonmore Road. As the appellant continued to watch him, WAB turned and called the appellant a "pimp" and "stuck a finger up at him, and kept reappearing at the corner, laughing". He decided that WAB should be arrested.
13. WAB was still in the process of making his "999" call to the police when the appellant arrived, carrying handcuffs he had taken from the rear of his car. WAB complained to the telephone operator that he was afraid. The operator asked to speak to the appellant who said that WAB was being abusive. The sound of handcuffs was audible down the line. WAB said that he was being framed. The appellant disconnected the call and arrested him. He was then handcuffed, with the cuffs fastened very tightly behind his back and his face and cheek pushed against the wall. He protested, saying he had done nothing wrong. He called for help from waiters and Mr Eshragi but the appellant said to one man "do you know who I am?". Some three minutes after the 999 call by WAB came to an end, the appellant called the emergency services on his mobile telephone and requested urgent assistance. While he was making this call, WAB could be heard asking to be released and saying that "it was not fair".
14. While WAB was on the telephone, according to the appellant, when he claimed that he was being threatened, he was "play acting". WAB pushed the appellant, hitting him in the chest. He was being very difficult and disruptive. During the process of arrest WAB jabbed him twice in the stomach with something. After the second jab he knocked the item away and it fell on the floor. The appellant handcuffed him for assaulting a police officer as well as arresting him for the public order offence. WAB struggled which made the process difficult, and once he had handcuffed WAB, he telephoned for assistance. Two police cars came very rapidly to the scene. On their arrival the officers reported that the situation seemed tranquil and peaceful.
15. Following WAB's arrest, he was taken to the police station at Hammersmith. There, consistently with the contents of his 999 call, he suggested that he had only been arrested because the appellant was a high ranking police officer, and complained that he was "taking liberties" and abusing his position. The appellant gave a number of accounts of these events, first with the custody sergeant. An audio recording was made of his narrative of the events of the evening, and shortly afterwards, he completed his Evidence and Actions Book ("EAB") which was later produced as a witness statement. The Crown's case was that there were significant omissions by the appellant in the account made through the recording and significant contradictions between the account in the EAB and what he was later to say to the jury, in particular in relation to the timing and circumstances of the incident in which he had been assaulted. For example, and perhaps of importance in relation to the arrest, he said that WAB began his 999 call after the appellant had tried to arrest him, and that WAB was carrying an object which "looked like a knife". At trial, however, it was not in dispute that when the appellant first arrested WAB, WAB was still on the telephone making his 999 call, nor any dispute that the telephone was taken from him by the appellant, who told the operator that he was making an arrest, and no suggestion that WAB was ever carrying a knife.
16. What the court at the first appeal described as other "important" strands to the case for the Crown were noted. Thus, for example, an officer, standing close to the appellant, said to a number of people milling about at the scene that the officers would get the names of potential witnesses. He said that the appellant said something in Farsi, at which the witnesses seemed to disperse. Yet the appellant made no attempt to ask them to remain.
17. There was evidence from investigating police officers that they had been told that the appellant had received voicemail calls and or messages from WAB which were either threatening or abusive. They said that they had asked him to preserve them, but later they were told that unfortunately they had been deleted. At trial the defendant said that the messages were unpleasant rather than threatening, and that the messages had been accidentally deleted.
18. The senior officer in charge of the investigation, Detective Superintendent Cassidy, had worked as the deputy to the appellant for a period of almost a year. As he conducted the investigation it became clear that there were inconsistencies between the appellant's account of events and the CCTV footage and the transcripts of the telephone calls. Accordingly WAB was bailed pending further enquiries. He then sent an email in which he stated that this material supported the version of events given by WAB, and a question was raised whether the investigation should remain "in house". It was ultimately decided that it should, and the file would then be referred to the CPS as soon as possible. He rang the appellant who mentioned "abusive texts and voicemails from WAB" and he asked the appellant to secure them. He agreed, and there was no suggestion that there would be any difficulty in recovering them. Shortly afterwards, after the file had been submitted to the CPS, Detective Superintendent Cassidy attended an unrelated meeting which was chaired by the appellant. At its conclusion the appellant asked to speak to him. The appellant said that a number of community leaders had approached him stating that WAB was remorseful and tearful and he asked Detective Superintendent Cassidy how they could drop the case. If the charge did not proceed, that would be well received within the community.
19. In the meantime Detective Chief Superintendent Hurley continued to update the appellant with the course of the investigation. The appellant expressed concern that the CCTV was being obtained and road maps drawn up, on the basis that he didn't want any "special treatment".
20. The appellant's account in relation to these matters was that he had told DS Cassidy that the voicemails were unpleasant but not threatening and that there were no texts. He had agreed to help with voicemail retrieval but required permission as the telephone was a police telephone. He had never said that he had inadvertently deleted the voicemails. He routinely deleted them because he believed that his telephone was being "hacked". Had he believed that the voicemails from WAB had any evidential significance he would have retained them. He also agreed that he told DS Cassidy that he had been approached by community leaders and told that WAB was remorseful and wanted to apologise. He was simply relaying this as a piece of information. He had not mentioned that the case should be dropped, such a suggestion would have been pointless because the CPS was an independent body. When he heard that the decision had been taken that WAB should not be prosecuted, he was outraged at the decision but, as there seemed to be no point, he did not pursue the matter.
21. There was a significant body of evidence independent of both protagonists. CCTV footage was available which showed events as they unfolded within the restaurant, and immediately on the pavement outside. They were revealing about the demeanour and attitude to the respective protagonists. The calls to the emergency services were fully transcribed: the contents spoke for themselves. Between them they provided valuable evidence for consideration by the jury.
22. The prosecution case was that there was no justification for the arrest and subsequent detention, and that the appellant's motivation throughout was personal animosity arising from the dispute between the parties. For this purpose the Crown relied on the evidence of WAB himself, the CCTV footage taken in the Yas restaurant; the transcripts of both "999" calls; the evidence of the officers who arrived at the scene, and the investigating police officers. The effect of their evidence has been summarised. The Crown relied on the different pre-trial accounts of the appellant, which, together with the accounts of his wife and Mr Eshragi for no good reason omitted important details of the incident and which were inconsistent with the emergence of a number of facts which could not be disputed. In addition there was medical evidence from Dr Heath who examined the appellant on 19 July 2008, to whom the appellant gave an account of having been poked with a sharp implement in the stomach and hit on the chest. She subsequently concluded that the areas of inflammation she had noted appeared to have been self inflicted.
23. The defence case was that WAB was an accomplished liar, and that indeed he had been persuaded to tell lies by the authorities such as the Metropolitan Police, MI5 or MI6. The appellant was amply justified in arresting WAB following a threat to sort him out or beat him up, accompanied by offensive gestures. During the course of his 999 call to the police, WAB was pretending to be intimidated and bullied when he was not, whereas the appellant had acted with complete propriety throughout the incident. He relied on his own positive good character as a senior police officer without convictions, and contrasted that with the appellant's bad character which undermined any confidence which could be reposed in his credibility. He was outraged when the prosecution of WAB did not proceed. He called the evidence of a forensic pathologist, Dr Carey, who, basing himself on the notes made by Dr Heath, concluded that there was no basis for suggesting that the injuries she noted might be self inflicted. As to the inconsistencies between his account and the evidence action book entries, he made mistakes which were inadvertent, and the omissions highlighted by the prosecution in the accounts that he had given were not deliberate. The investigating police officers' evidence about the deletion of threatening messages, and the like, after he had been asked to retain them, was inaccurate. He had not described the texts and voicemails as threatening or abusive nor had he tried to get the case against WAB dropped. He suggested that the inquiry made later by the IPCC was not independent. There was an agenda to get rid of him from the service. Some of these issues were examined in cross-examination of the Senior Investigating Officer of the IPCC.
24. The conclusions reached by the jury about the credibility of WAB and the appellant were, of course, critical to their verdicts. In reaching their conclusions about the incident which culminated in the arrest of WAB, however, the assessment of the credibility of the main protagonists, and indeed of the appellant's wife and Mr Eshragi, was informed by the substantial body of evidence independent of all of them, and the two protagonists in particular. Their evidence of what they themselves did and said, could be tested and examined against known, incontrovertible facts. So, for example, the 999 call made by the appellant undoubtedly preceded his arrest, and WAB was talking and complaining to the operator before the appellant approached him at the start of the incident. The CCTV footage provided from within the Yas restaurant immediately before the incident also shows both men shortly before it started. This provided the jury with independent material helpful to the assessment of the behaviour and demeanour of each of them, and would inform their examination of the conflicting accounts given by WAB and the appellant about the way in which the incident developed, and the extent to which their accounts were consistent with this CCTV footage. The scene was attended by a number of police officers, most of whom made statements, and provided detail about the demeanour, dress and behaviour of those who were present at the scene, and indeed their willingness, or otherwise, to be involved in and provide full and detailed accounts of what had happened. A number of witnesses provided details of the police investigation, and if they were to be believed, it was open to the jury to conclude that the appellant, notwithstanding his senior rank as a police officer, had quite deliberately failed to co-operate fully with the investigation, and that indeed he sought to bring it to an end when it began to emerge that his own behaviour might be open to criticism. In short, the decision about the credibility of WAB and the appellant, although crucial to the outcome of the case, fell to be assessed in the light of a substantial body of further evidence which was available to assist the jury to make their assessment. This was not a case, as it is sometimes expressed, of one person's word against another. In truth there was formidable evidence against the appellant.
25. In accordance with the provisions of s.100(1)(b) of the Criminal Justice Act 2003, the jury in the trial which gives rise to the present appeal was informed about a number of matters relating to WAB which had "substantive probative value" and were of "substantial importance" in the context of the case as a whole. The essential facts were agreed, and the appellant and his wife underlined to the jury that they had conducted the necessary investigations and brought these matters to the attention of the authorities. These were carefully noted by the judge in his summing up. He drew attention to a series of offences of fraud on the benefit system for which WAB was responsible. This took the form of payments of pensions and carer's allowances due to his father which continued to be paid to a bank account used by WAB after his father's death. This fraud went on for some time, from August 2007 until February 2010, and enabled the appellant to obtain a total of just over £27,000 by fraud. He was prosecuted, convicted and sentenced to imprisonment. In addition to the lies and dishonesty involved in these offences, WAB had also lied about his place and date of birth to gain entry into the United Kingdom and had obtained and provided false documents to assist his family for the same purpose. Of perhaps greater importance, the judge explained how WAB had lied on oath when he was questioned at the first trial about his origins. The judge explained that he "maintained those lies when he gave evidence at the first trial" and continued "he has been dishonest and has told lies in situations where he knew that it was important to tell the truth and that it was a criminal offence to tell lies". He then reminded the jury that the defendant argued that the lies and dishonest activities of WAB demonstrated that he was a man who could not be trusted and "for whom lies have become a way of life".
26. The judge further permitted the defence to adduce evidence and to cross-examine WAB on material arising from an alleged assault by him in a night club called the Funky Buddha, said to have been committed by the claimant in September 2009. The evidence before the jury was that this incident involved a serious act of violence by WAB who used a broken bottle as a weapon to strike a man called Reza Filahi in the face. The evidence was given by Reza Filahi himself, supported by another witness Farah Pirhanif. When cross-examined WAB exercised his right not to answer any questions on the ground of self incrimination. As the judge explained to the jury, that meant that he had given no evidence to contradict what had been said by the witnesses. Summing up the issue, the judge pointed out its potential relevance. WAB was asserting that he had been neither aggressive nor threatening to the appellant on 18 July 2008 whereas the appellant's case was that he was. He continued "If Al-Baghdadi did that, it was violent conduct in a public place", and he continued that the defendant's contention was that "it demonstrates that Al-Baghdadi is a man who is given to violence and serious violence at that". The jury was entitled to take it into account in deciding whether WAB had assaulted the appellant as the appellant alleged.
27. In stark contrast to his criticisms of WAB's character, the judge immediately turned to remind the jury of the many positive features of the appellant's good character. Unsurprisingly, of course, he reminded them of the relevance of his good character to his credit worthiness and the absence of any propensity to criminal behaviour.
28. Having set the context, we can now address the criticism of the judge's decision to prevent the appellant from adducing further material adverse to WAB's character. Although there are three areas of evidence, each of them is concerned with the appellant's former girlfriend, and arose out of their relationship. None involved WAB in any charge, let alone a conviction.
29. The first occurred in April 2010, that is almost two years after the incident which is the subject of the present convictions, and indeed after the first trial was concluded. WAB's former girlfriend alleged that during the course of their sexual relationship, he subjected her to an anal rape. The defence sought to rely on a telephone conversation between WAB and his girlfriend, which probably took place in September 2010, in the course of which this incident was discussed and he admitted assaulting her and threatening her with serious violence. On a different occasion in September 2010, WAB assaulted and threatened her at a nightclub called Fudu, and posted an entry on her Facebook which amounted to admissions that he done so.
30. In his ruling the judge clearly had in mind s.100(1) and (3) of the 2003 Act, and the observations of this court in R v Braithwaite [2010] EWCA Crim 1082. So far as relevant, s.100(1) provides that the evidence sought to be adduced on behalf of the appellant "is admissible if and only if –

a) "it is important explanatory evidence,

b) it has substantial probative value in relation to a matter which

i) is a matter in issue in the proceedings, and

ii) is of substantial importance in the context of the case as a whole".

As the question whether the defendant is proved to have committed the offence or offence as alleged will always and inevitably be the issue of primary important in the trial process, and that indeed is its purpose, "a matter which is a matter in issue in the proceedings within s.100(1)(b)(i)" addresses a further or additional consideration. That is the issue in the proceedings to which the evidence of bad character, whether propensity or credibility, is directed. To be admitted, however, it must also satisfy the condition in s.100(1)(b)(ii).

When assessing the probative value of the evidence for the purposes of sub s.(1)(b) s.100(3) directs attention to a number of specific factors and, significantly in the present context, to "any others it considers relevant".

In accordance with s.100(2) evidence falling within the ambit of sub s.1(a) is evidence without which

"(a) … the court or jury would find it impossible or difficult properly to understand other evidence of the case, and

(b) its value for understanding the case as a whole is substantial".

In our view considerations like these may require to be consideration as part of the assessment of the probative value of evidence in accordance with s.100(3).

31. Section 109(1) provides:

"Subject to sub-section (2) reference in this Chapter to the relevance or probative value of evidence is a reference to its relevance or probative value on the assumption that it is true".

Accordingly the judge assumed that for the purposes of the decision on admissibility the evidence of WAB's girlfriend was true. This assumption, of course, applies to the question of admissibility: once admitted the assumption of truthfulness made for the purpose of assessing admissibility would not apply to the assessment by the jury of its truth. So, if the defence was permitted to adduce evidence about the matters alleged by his girlfriend before the jury, WAB would have been entitled to deny some or all of them, and rely on any material available for this purpose.

32. Saunders J further directed himself:

a) that the issues of the credibility of WAB and any propensity to violence were of substantial importance to the question whether he had behaved in a threatening and violent way which justified his arrest by the appellant, and

b) provided the evidence proposed to be adduced was not merely relevant but of substantial probative value there was no discretion to exclude it.

He proceeded on the basis that a person who had been violent would be more likely to show violence in an entirely different situation to someone who had never been violent before. However violence in the context of the strength of the emotions which frequently characterise a sexual relationship, and its breakdown, does not often throw very much light on any propensity to be violent outside such a relationship. In any event the incident of alleged rape was not substantially probative of the issues which arose in the trial, and the allegations of violence in the Fudu nightclub, although marginally relevant in the sense that it had occurred in a public place, also lacked substantial probative value. This incident was not of the same level of violence that had underpinned the substantial probative value of the evidence related to WAB's violent use of the bottle at the Funky Buddah Nightclub.

33. In careful written and oral submissions Mr Stephen Riordan QC submitted that the ruling was wrong, and that evidence relating to all three matters should have been admitted before the jury. The evidence provided substantial probative value in relation to the critical issues of WAB's credibility and his propensity to indulge in violence. Although the court would not encourage extensive satellite litigation, the presumption of truth in assessing relevance and probative value could not be ignored. Although the events took place in what might be described generally as the domestic context, significantly removed from the circumstances of the trial, that context should not have influenced the judge's decision in the way that it did or at all. Domestic violence is no less serious and no more explicable than the violence which the appellant alleged had been used by WAB on the night of the incident. The material had what Mr Riordan described as a substantial capability of proving the propensity to threaten and use violence which led the appellant to arrest WAB.
34. Subject to the considerations identified in the individual statutory provisions in Chapter 1 of the Act, s.109(1) applies in effect across the board to the admissibility of evidence of bad character of any non-defendant, whether a witness who gives evidence at trial or not, and to any defendant, including any co-defendant. In relation to any defendant, however, s.101(3) prevents the admission of bad character evidence against the defendant if its admission is advanced on the basis of sub s.(1)(d) or (g) and if to do so would have "such an unfair effect on the fairness of the proceedings that it ought not to be admitted". This therefore provides a judicial discretion to exclude what would otherwise be admissible evidence. Numerous judicial observations have underlined that one aspect of the issue of fairness in the context of s.101(3) is the risk that the deployment of the bad character evidence would divert the focus of the trial from the real issue in the case. Thus, in Hanson [2005] 1 Cr App R 21 the court warned against the judge permitting "the trial unreasonably to be diverted into an investigation into matters not charged on the indictment". In Edwards and Rolands [2006] 2 Cr App R 4 in the context of an allegation rather than a conviction, there was advice subsequently constantly repeated, "to guard against satellite litigation". McAllister [2009] 1 Cr App R 10, where the crime sought to be put to the defendant had been the subject of a not proven finding in Scotland, underlined the need to avoid a satellite trial which would divert and deflect the focus of the jury.
35. Absent any statutory equivalent to s.101(3) the question which arises is whether in the context of the bad character of a non-defendant there is an exclusionary discretion to avoid satellite litigation. Provided the judge is satisfied that the pre-conditions to admissibility are satisfied, there is none (see Braithwaite and, further, Phillips (2012 1 CAR 25). That, however is not an end of the discussion.
36. Braithwaite reminds us that a fact specific judgment directed to the statutory conditions in s.100(1)(b) and s.100(3) must be made whether to admit evidence of bad character (within the ambit of s.98(a) of the Act), Where it applies, the assumption in s.109 is not determinative of the admissibility question. Rather it provides the context in which the admissibility decision falls to be made. In short, the pre-conditions to admissibility under s.100(1) are not automatically established, and, notwithstanding the evidential assumptions provided by s.109 at the admissibility stage, the bare fact of an allegation (even if assumed to be true) is not necessarily conclusive of the question whether it constitutes substantial probative evidence or evidence of substantial importance in the context of the case as a whole. If it were otherwise, the court would be obliged to admit evidence of an allegation of a serious crime allegedly committed by the witness, even if it had been fully investigated by the police, but, because the investigation revealed serious doubts about the complainant's veracity, on the basis that the complainant continued to insist that the allegation was true. Accordingly, and Mr Riordan was inclined to agree, we do not see how the necessary judgment whether the pre-conditions to admissibility under s.100 can be satisfied without a careful examination of all the material which bears on the question.
37. A trial concerned with whether it is proved that the defendant has committed crime "A" is liable to be derailed if the jury is required to decide whether a witness has committed the distinct, separate crimes, "B" and "C". As we have explained, the evidential assumption in s.109 does not bind the jury, and the investigation of this evidence at trial may be liable to distract attention from the crucial issue which is whether the case against the defendant has been proved. If, in the context under discussion, the judge correctly directs the jury that they must not consider the alleged bad character evidence unless they are sure that it is true, two trials would be simultaneously in progress before the same jury. First, the trial of the defendant for the crime alleged against him by the prosecution, and second, the crime or misconduct alleged against the witness.
38. In our judgment these are relevant considerations bearing on the assessment of the probative value of the evidence sought to be adduced and its importance in the overall context of the case. When it is assessing the probative value of the evidence in accordance with s.100(1)(b) and s.100(3), and consistently with s.100(2), among the factors relevant to the admissibility judgment, the court should reflect whether the admission of the evidence relating to the bad character of the witness might make it difficult for the jury to understand the remainder of the evidence, and whether its understanding of the case as a whole might be diminished. In such cases the conclusion may be that the evidence is not of substantial probative value in establishing the propensity in or lack of credit worthiness of the witness, or that the evidence is not of substantial importance in the context of the case as a whole, or both. If so, the pre-conditions to admissibility will not established.
39. We have analysed the evidence. We know not only from a police interview in which the allegation of rape was denied, but with the benefit of the transcript of the recorded telephone conversation between WAB and his girlfriend which Mr Riordan sought to introduce, that the allegation of rape was bitterly contested. Indeed it is not possible to conduct an examination of the allegation of rape in isolation from the contents of the recording, and we were not invited to do so. WAB admitted that on an occasion when they were both under the influence of drugs they had pushed a bottle into each other's anus and, putting it in far less dramatic terms than he did, he asserted that she had found it pleasurable. That transcript also reveals, first, that WAB was extremely suspicious about whether or not his former girlfriend had been in communication with the appellant, and second, whether she might be making a recording of the conversation. She denied both suggestions. The recording lasted nearly fifty minutes. It was a discussion marked by a highly emotional context. The exchanges are contentious and acrimonious. They might well be relevant to a trial in which WAB was alleged to have raped his former girlfriend, perhaps indeed with both the prosecution and the defence relying on different passages in the conversation. In the context of a trial in which WAB is alleged to have given the appellant justifiable grounds for arresting him, and the appellant is alleged to have none, whether taking these incidents together or separately from each other, neither satisfies the pre-conditions to admissibility under s.100(1)(b).
40. The third matter for consideration arose from the further allegation by WAB's former girlfriend that he assaulted her at the Fudu nightclub. The violence occurred outside the premises and consisted of repeated hard slaps to her face. Her allegation was amply supported by a coarse, crude message he left on her Facebook, admitting five separate blows, and purported to justify them on the basis that in relation to four she was, according to him, having intercourse with four different men, and the fifth was inflicted because she spoke "behind his back".
41. In relation to this incident, we take a different view from the judge. Although different in the number of blows and the circumstances said by the appellant to justify WAB's arrest, and the victim was not a police officer, but a former girlfriend, this was an incident of unpleasant violence in a public place. It was an incident less serious than the violent use of the broken bottle in September 2009, but nevertheless it provided substantial probative value and importance in the context of WAB's alleged propensity to violent behaviour in public, apparently triggered off by some personal grievance. Taken in isolation from the earlier offence, it was less serious, and in that sense less damaging to WAB on this issue. There will of course be occasions when the probative value of relative minor misconduct may be reduced if the jury already has before it evidence of serious misconduct of a similar nature, but in this particular case the evidence relating to the Fudu incident would have served to reinforce the contention that, when crossed, WAB was disposed to violence in public. The domestic nature of the incident did not reduce its probative value to the issues. We therefore disagree with this part of judge's ruling.
42. Where, however, does that take the appellant? In truth, even if it had been admitted, evidence relating to this incident added very little to what the jury already knew about WAB's dishonesty and his propensity to lie on oath, and propensity to serious violence in public places. Moreover, during the trial itself, the jury was provided with a good deal of additional evidence about WAB's tendency to violence. Thus, when she was being cross-examined, his former girlfriend spoke about reporting how WAB had beaten her up and how he had been abusive and hurtful, and how a lot of nasty incidents had happened during the course of their relationship. When he was cross-examined, Mr Eshragi said that WAB was a violent man, a crook who was abusing the system and taking money from the Government. On one occasion, he said, WAB had been involved in a serious fight in premises which belonged to him. Bottles were thrown and the premises were damaged. His evidence plainly indicated that WAB had been responsible. In any event, taken at its heighest in the appellant's favour the evidence excluded by the judge did not begin to undermine the powerful body of evidence independent of WAB which served to prove that, notwithstanding all the criticisms which could be made of him, the guilty verdict was fully justified. In our judgment, notwithstanding the omission of the evidence relating to the incident in September 2010, in accordance with the judge's ruling, this conviction was and remains safe.
43. Accordingly this appeal is dismissed.