| CRIME — Evidence — Bad character — Crown seeking to adduce evidence of defendant’s misconduct — Whether evidence to do with facts of offence and thereby excluded from bad character provisions — Whether exclusion requiring nexus in time between misconduct and offence — Criminal Justice Act 2003, s 98(a)
R v Tirnaveanu [2007] EWCA Crim 1239
CA: Thomas LJ, Penry-Davey and Wyn Williams JJ: 24 May 2007
Evidence of misconduct by a defendant was evidence “to do with” the alleged facts of the offence with which the defendant was charged and therefore excluded from the definition of bad character in s 98(a) of the Criminal Justice Act 2003, if it had some nexus in time with that offence.
The Court of Appeal, Criminal Division so held when allowing in part an appeal by Cornel Tirnaveanu against his convictions by the Crown Court at Canterbury (HHJ Van der Bijl and a jury) on 21 and 22 December 2005, quashing his conviction for an offence of facilitating the obtaining of leave to remain in the United Kingdom by another by means which he knew to include deception, contrary to s 25 of the Immigration Act 1971 (count 12), and upholding his convictions on four counts of forgery, contrary to s 1 of the Forgery and Counterfeiting Act 1981, five counts of obtaining property by deception, contrary to s 15(1) of the Theft Act 1968, three counts of facilitating the obtaining of leave to remain in the United Kingdom, contrary to s 25 of the 1971 Act, and three counts of attempting to obtain property by deception, contrary to s 1(1) of the Criminal Attempts Act 1981.
The defendant was accused of posing as a solicitor to dishonestly obtain money from illegal entrants who wanted to remain in the United Kingdom, and providing them with forged entry documents. He denied the offences, contending that another person had posed as him. The judge allowed the Crown’s application to adduce further evidence in respect of the defendant’s other dealings with illegal immigrants who were not the subjects of the offences charged. On appeal the defendant contended that the evidence could only have been admitted pursuant to the bad character provisions under the Criminal Justice Act 2003.
THOMAS LJ, giving the judgment of the court, said that the evidence sought to be adduced was highly relevant to proving that it was the defendant who had committed the offences and not someone posing as him. S 98(a) of the Criminal Justice Act 2003 defined bad character as evidence of or a disposition towards misconduct, other than evidence which had “to do with” the alleged facts of the offence with which the defendant was charged. The evidence sought to be adduced by the Crown was not “to do with” the facts of the alleged offence, as the exclusion under s 98(a) had to relate to evidence where there was some nexus in time between the offence charged and the evidence of misconduct, and no such nexus existed. The application of that provision was a fact specific exercise involving the interpretation of ordinary words. The evidence was admissible under s 101(1)(d) of the 2003 Act as it was relevant to an important matter in issue between the defendant and the prosecution, namely whether it was the defendant who committed the offence and not some other person. Despite the difference in wording, there was no difference in the powers of the court under s 101(3) and s 78(1) of the Police and Criminal Evidence Act 1984 not to admit such evidence where the court was satisfied that it would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. The evidence was powerful, important, did not affect the fairness of the proceedings and the judge was therefore right to admit it. Count 12 charged two quite different offences in one count and therefore the conviction on that count could not stand. For all those reasons the appeal would be dismissed save in respect of count 12.
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