Estifanos Soloman [2019] EWCA Crim 1356

The appellant was convicted of possessing a firearm and ammunition with intent to endanger life and failing to comply with a notice to disclose the passwords to 2 mobile phones. For the firearms offences he was sentenced to 12 years and 6 months and for the non-disclosure to a concurrent term of 18 months’ imprisonment. He appealed against conviction for the firearms offences.

The appellant was under surveillance and seen to get into a car with a plastic bag with pink writing on it. He got out of the car without the bag, when the car was stopped the bag was found inside containing a gun and ammunition. The driver of the car was arrested and in the 100 minutes after his arrest until the phone was switched off there were 75 missed calls from a number associated with 2 phones later seized from the appellant. When the police arrived to carry out a search at the driver’s address the appellant was seen sitting outside in a car. Two fingerprints matching the appellant were also found on the bag in which the box containing the gun was found.

At trial the appellant said that the driver was an Uber driver he had used as a personal fitness trainer. He said he had disposed of the bag before getting into the car and that he would’ve touched bags left in the driver’s possession during journeys or fitness sessions. The calls were explained as being because the driver failed to come and pick him up as arranged.

Issue was taken with the admission of two matters in evidence. The first that on a different occasion the appellants fingerprints had been found on newspaper in which rounds of ammunition were wrapped, he was not charged with any offence. Secondly evidence of a note on a phone created two days before the incident. It appeared to be the lyrics of a rap song, “sold guns to str8 killers”.

It was submitted each of these items was evidence of bad character and was inadmissible or ought not to have been admitted. The judge did not give a formal ruling for his decision to admit the evidence but made it clear the fingerprints were admissible under s101(1)(d) as an important matter in issue. He also considered the rap lyric to be admissible under s98, not as bad character but as evidence which had to do with the alleged facts of the offence.

Held: the judge was entitled to admit the fingerprint evidence and appropriate directions were given to the jury. The possibility of innocent contact is obviously significantly reduced when it is known there are two such innocent coincidences to explain.  The first ground of appeal was rejected.

The evidence of the rap lyric was relevant for the reason given by the judge at the time that it was reasonably capable of being regarded as showing what was on the appellant’s mind at the relevant time and as referring to the activity in which he was allegedly engaged, namely selling guns to street killers. It seems to have little weight in the context of this case, it was just a lyric and may have no connection to the factual reality of life. That was a point that was necessary and appropriate for the judge to remind the jury of. No criticism could be made of the decision to admit the evidence but there was criticism of the direction given. That said, the judge’s error could not be said to make the conviction unsafe and the appeal against conviction was dismissed.