Read the first in our series of criminal case summaries

December 14, 2022

In the first in a series of criminal case summaries, Zarreen Alam-Cheetham from Exchange Chambers examines the cases of Kadir [2022] EWCA Crim 1244 (allowing evidence via WhatsApp – Section 51 Criminal Justice Act 2003) and Peace [2022] EWCA Crim 879 (Bad character evidence – s.101 Criminal Justice Act 2003 – previous alleged bad character – propensity).

Kadir [2022] EWCA Crim 1244 (allowing evidence via WhatsApp – Section 51 Criminal Justice Act 2003)

The Defendant was convicted of rape, attempted rape and indecent assault against three brothers whom he used to reside with when he first came to the UK.  The Judge permitted his half-brother, who lived in Bangladesh to give evidence via CVP. Technical issues arose and the defence application for evidence to be given via a WhatsApp video call was refused. One of the reasons cited was that the Judge could not be sure that it was a ‘safe and secure’. The Judge also refused to permit a statement to be adduced as hearsay and multiple hearsay evidence under the Criminal Justice Act 2003 s.116 and s.121.

In his appeal, the Appellant argued that the Judge had erred in excluding the evidence as inadmissible hearsay and refusing to permit evidence to be heard via WhatsApp. The appeal was dismissed.

Both under the law in force at the time (s.51 of the Criminal Justice Act 2003) as this case was heard during the pandemic, and under the law in force now (s.51 CJA 2003 as amended by the Police, Crime, Sentencing and Courts Act 2022), a Judge had and would have the power to direct a live link via WhatsApp. It is regarded as sufficiently secure due to its end-to-end encryption. The relevant test, however, is whether it would be in the interest of justice to make a “live video link” direction and that the prosecution had had a sufficient opportunity to make representations [39-49]. The CA was satisfied that this test had not been met. Significantly, absent was a notice of intention to call the half-brother, as required by the Criminal Procedure and Investigations Act 1996 s.6C. Furthermore, written notice of his identity was not provided until the trial was underway.

It is clear from the judgment that preparation prior to the abovementioned applications are made, is fundamental.

Peace [2022] EWCA Crim 879 (Bad character evidence – s.101 Criminal Justice Act 2003 – previous alleged bad character – propensity

In the case of Peace, the Defendant was convicted of murdering his infant daughter by shaking her. The prosecution adduced evidence of a previous injury sustained by the child prior to her death. The prosecution case was that an earlier incident took place whereby the Defendant shook the child resulting in that injury and evidence was adduced as an allegation of bad character under s.101(1)(d).

The Judge failed to direct the jury that they must be “sure” that the previous alleged conduct was non-accidental and inflicted deliberately, before they could rely on it as evidence of propensity in relation to the instant offence.

The case of Gabbana [2020] EWCA Crim 1473 confirmed that where the prosecution relies on evidence of bad character in the form of previous alleged conduct (from which there is no caution or conviction), the jury must be directed that they should only rely on that evidence in the instant case, where they are sure of the allegation

It was accepted by the Court of Appeal that the judge in Peace ought to have given the jury the above direction. Notwithstanding this, the Court was not of the view that the safety of the conviction was undermined. It may be of relevance that the prosecutor clarified in their closing that the jury could rely on the earlier incident as an allegation of bad character, if they were sure that it was caused by the Defendant unlawfully shaking the child.

Further caution is required, however, where the Defendant is of apparent good character, as a direction on good character would be required first.