Bad Character – Creating a False Impression – Fender [2018] EWCA Crim 2829

This appeal concerns the admissibility of bad character evidence to correct a false impression given by a defendant. The prosecution alleged a conspiracy to sell prohibited weapons and that the appellant had been present at a flat in order to purchase weapons. He accepted presence at the flat but said that it was in order to buy drugs, he explained pictures of firearms on his phone by saying he had no interest in weapons and did not know he had screenshotted the images. He also said “I don’t like gangs. They make me quiver”.

The prosecution argued that he had sought to, falsely, portray himself as a peace-loving man with a profound distaste of guns whose criminal activity was limited to low level cannabis dealing. The defence argued his evidence was nothing more than an over-emotional and impulsive plea of innocence to involvement with guns. The judge admitted evidence of some of his convictions, evidence of gang association and photos of the appellant holding large sums of money, also found on his phone. He concluded that the evidence given sought to portray an image of a person who was not interested in gang affiliation and adopted a moral and hostile position towards weapons, the appellant went beyond mere denial.

The appeal focussed on the evidence of gang association which came from a PC commenting on photos of gang members on the appellant’s phone, their names and convictions.

Held: the Crown was entitled, prime facie, to call rebuttal evidence as a false impression was conveyed. The convictions for dishonesty and violence were relevant to the issue of credibility. The report of the PC was admissible, but the argument was more about the use to which the contents of such report can subsequently be put. The officer was not called to give evidence and parts of the report were put to the appellant, the judge expressly contemplated the limits of what he considered necessary to refute the false impression and also contemplated the possibility of the defendant having the right to call additional evidence to rebut the Crown’s rebuttal evidence. The appeal therefore fails.

Categories: Caselaw, Criminal Appeals

Tags: , ,