CRIMINAL DIVISION
B e f o r e :
MR JUSTICE JAY
HIS HONOUR JUDGE BLAIR QC
(RECORDER OF BRISTOL)
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REGINA | ||
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ABDIRAHMAN IBRAHIM |
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Mr B. O'Neill, QC assisted by Ms S.Deb appeared on behalf of the Crown.
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Crown Copyright ©
LORD JUSTICE POPPLEWELL:
"[...] the jury would be entitled to conclude that, given his brother's association with the Agar Grove gang and presence at University College Hospital on 19 May, this defendant must have greater knowledge of the gang, its history, its membership and its desire for revenge than he has admitted. That being so, this evidence is prima facie admissible under section 100(1)(a) and section 100(2)(b) as important explanatory evidence but particularly under section 100(1)(b) as being relevant to an important matter in issue."
"100 Non-defendant's bad character
(1) In criminal proceedings evidence of the bad character of a person other than the defendant 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,or
(c) all parties to the proceedings agree to the evidence being admissible.
(2) For the purposes of subsection (1)(a) evidence is important explanatory evidence if—
(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
(b) its value for understanding the case as a whole is substantial."
22. It is important to keep in mind that both section 100(1)(a) and section 100(1)(b) impose a higher threshold to admissibility than mere relevance. Section 100(2) makes clear that in order to qualify as admissible explanatory evidence the evidence must be "important", which means both that its value for understanding the case as a whole is substantial and that without it the jury would find it difficult or impossible properly to understand other evidence in the case. The test of "substantial probative value" in relation to a matter in issue in section 100(1)(b) imposes a requirement that the evidence has an enhanced capability of proving or disproving the matter in issue which itself must be a matter of substantial importance in the context of the case as a whole over and above mere relevance to that issue (see, for example, R v Musone [2007] EWCA Crim 1237; [2007] 2 Cr App R 29 at 46, and R v Phillips [2011] EWCA Crim 2935; [2012] 1 Cr App R 25 at 39-40).
23. The way in which the judge expressed his conclusions does not make clear that he had this enhanced threshold in mind. That may be because Mr Perian's argument was that the evidence was not relevant at all to the live issue in the proceedings.
"If [...] there is a case to answer, and after proper directions, the jury has convicted, it is not open to the court to set aside the verdict on the basis of some collective, subjective judicial hunch that the conviction is or may be unsafe. Where it arises for consideration at all, the application of the 'lurking doubt' concept requires reasoned analysis of the evidence or the trial process, or both, which leads to the inexorable conclusion that the conviction is unsafe. It can therefore only be in the most exceptional circumstances that a conviction will be quashed on this ground alone, and even more exceptional if the attention of the court is confined to a re-examination of the material before the jury."