Fender [2018] EWCA Crim 2829

R v Fender [2018] EWCA Crim 2829 concerned an appeal against conviction for conspiracy to sell or transfer prohibited weapons and conspiracy to possess ammunition, in which the Court of Appeal (Lord Justice Green, Mr Justice Nicol and Her Honour Judge Deborah Taylor sitting as a judge of the CACD) dismissed the appeal and upheld the admissibility of bad character evidence adduced under section 101(1)(f) of the Criminal Justice Act 2003 to correct a false impression.

Mr Fender was convicted on 12 September 2017 in the Crown Court at Harrow on two counts of conspiracy to sell or transfer prohibited weapons and conspiracy to possess ammunition. He was sentenced to eleven years’ imprisonment on count 1 and three years concurrent on count 2. Several co-conspirators had already been tried and convicted following a police raid on 21 May 2016 at a 23rd floor flat in Canning Town, where officers recovered eleven handguns with ammunition, eleven silencers, one assault rifle and over fifteen thousand pounds in cash. Nine men and one woman were present shortly before the raid; seven, including Mr Fender, were recorded on CCTV attempting to flee after being tipped off.

The prosecution case was that Ahmed Mudhir, whom Mr Fender had known since 2011 and who had a previous conviction for firearms supply, had organised a weapons sale at which buyers and sellers were to meet. Mr Fender was present at Mudhir’s invitation and intended to purchase weapons for himself or for onward distribution. The prosecution relied upon CCTV identification, cell site and telephone contact data linking Mr Fender to the flat and to co-conspirators, expert evidence as to the firearms, and agreed facts establishing the existence of the conspiracy.

Mr Fender’s defence at trial was that he attended the flat solely to buy cannabis from Mudhir, a close friend and his usual supplier. He accepted being a buyer and seller of cannabis but denied any knowledge of the weapons sale. He testified that he had arrived, purchased two ounces of cannabis, and then received a call from a friend outside warning that armed police were entering the building, whereupon he panicked and fled, disposing of the cannabis in a refuse chute. He claimed to have no interest in guns or gangs and no knowledge of Mudhir’s involvement in weapons. He denied knowing any of the other individuals present save Mudhir and his girlfriend.

During his evidence, Mr Fender made a number of statements about his character and circumstances. He said he was not gang-affiliated, that gangs made him “quiver”, and that he disliked them. He stated that his cannabis dealing was low-level, earning perhaps “a few hundred pounds street deals”, and that he had no need for a weapon. He expressed moral objections to firearms, saying he liked to look after his people, had morals, and would not buy a gun because it could be given to a terrorist and a member of his family could be hurt. He maintained throughout that he was “just a cannabis dealer” with no interest in guns or violence.

Following this evidence the prosecution applied to adduce bad character evidence under section 101(1)(f) of the Criminal Justice Act 2003 on the basis that Mr Fender had given a false or misleading impression of his character. The Crown sought to rely upon three categories of rebuttal material. First, evidence from PC Akkaya of the Trident and Area Crime Command concerning photographs of members of five different gangs found on Mr Fender’s phone, together with details of their previous convictions and gang affiliations. The prosecution contended that this demonstrated, contrary to his evidence, that Mr Fender had associations with gang members from groups that would ordinarily be antagonistic to one another. Second, Mr Fender’s previous convictions for dishonesty, violence and driving away from the scene of an accident. (The Crown also sought to adduce convictions for sexual assault and causing death by dangerous driving, which the judge later excluded.) Third, photographs from his phone showing him holding large sums of money.

The defence opposed the application on two principal grounds. First, it was submitted that Mr Fender’s evidence amounted to no more than an over-emotional and impulsive plea of innocence and went no further than a denial of the charges. Relying upon R v D and Others [2012] 1 Cr App R 8, counsel argued that virtually every defendant who denied an offence would otherwise fall within the gateway, and that the evidence was therefore inadmissible. Second, it was contended that the statement of PC Akkaya did not prove that the individuals named were actual gang members.

In his ruling on 7 September 2017, the judge admitted the preponderant part of the evidence sought by the Crown. He accepted the prosecution submission that the evidence was relevant to rebut a false impression and went no further than necessary. The judge found that Mr Fender’s evidence went beyond mere denial of the offences charged and sought to portray an impression of a person not interested in gang affiliation who adopted a moral and hostile position towards weapons. Mr Fender had not been forced to make these statements and had elected to give that evidence. The judge excluded the convictions for sexual assault and causing death by dangerous driving as not relevant to the charges and not serving to rebut the impressions conveyed. He permitted the evidence of Mr Fender escaping the scene of an accident to be adduced. The judge also cautioned the prosecution about the manner of cross-examination on gang-related issues, stating that he did not wish the matter to become satellite litigation, and left open the possibility that Mr Fender might need to call rebuttal evidence himself depending on the answers given in cross-examination.

At trial, the Crown used parts of PC Akkaya’s report as a basis for cross-examining Mr Fender on his claim that he had no gang connections. Six photographs downloaded from his phone, showing named individuals alone and in groups said by the prosecution to be from specific gangs and making signs characteristic of different gangs, were copied and provided to the jury. It was suggested that these were all individuals with whom Mr Fender had connections and who were engaged in serious criminality and were members of gangs. Mr Fender responded that he did not know whether this was true or not because he had no gang affiliations and was not interested in gangs or weapons. The material was supplemented by agreed facts on the previous convictions of those individuals who were the subject of the photographs.

On appeal, Miss Power for Mr Fender advanced three principal grounds. First, she submitted that the judge erred in concluding that the appellant had given a false impression and that the bad character evidence was therefore wrongly admitted. She accepted that the judge gave a clear direction to the jury which had been drafted and agreed by counsel, but contended that if the admission of the evidence was wrongful then the conviction was necessarily unsafe despite those directions. The amount and nature of the bad character material created overwhelming prejudice that could not be cured by any direction. Second, even if a false impression had been created, the admission of the bad character material went too far to correct that impression, especially given that the evidence was not sought to be admitted pursuant to section 101(1)(d) as relevant to an important issue in the case. The jury had already been made aware of pictures of guns on Mr Fender’s phone and of Mudhir’s 2011 conviction. The admission of the evidence created an overwhelming and excessive prejudicial effect that could not be cured by directions. Third, the evidence of PC Akkaya on gang affiliation did not meet the test for admission as expert evidence and should have been excluded. In oral submissions Miss Power focused particularly upon the gang affiliation evidence, developing three strands of argument: that the evidence did not meet the threshold test for admissibility of expert evidence set out in R v Myers [2015] UKPC 40; that the judge allowed too much of PC Akkaya’s report to go before the jury and it went beyond that necessary to rebut the false impression; and that in any event the judge failed to give the jury sufficient warnings about the evidence in his summing-up.

The Court of Appeal rejected each of these submissions. Lord Justice Green, giving the judgment of the court, held that the central issue for the jury was whether they believed Mr Fender’s evidence and in particular the reasons he gave for his presence at the meeting. His credibility was the foundation of his case. He made a number of statements which, if true, would have bolstered his credibility and supported his case that he was not the sort of man who would be involved with guns or gangs or related violence for moral reasons. The impression flowed from his assertion of non-association with gangs because they made him quiver; his assertion of non-association with gangs which used guns; his objection to the use of guns because of their dangerousness and connection with violence; and his reasons for so objecting being rooted in morality. Individually and collectively he portrayed himself as a man of peace with a moral objection to gun-related gang activity, albeit he had engaged in what he described as low-level cannabis dealing. These observations were freely given and were designed to create an impression which bolstered his credibility and truthfulness, which in turn was relevant to the accuracy and acceptability of his explanation for his presence at the flat. The prosecution considered that this impression was false. The court held that in these circumstances the Crown was entitled to adduce rebuttal evidence. Admissibility of a piece of rebuttal evidence was not conditional upon it being capable in and of itself of amounting to a complete answer to the false impression conveyed, but the evidence was nonetheless probative to some material degree. The court therefore concluded that a false impression was conveyed and prima facie the prosecution was entitled to adduce rebuttal evidence.

As to the previous convictions for dishonesty and violence, the court held that these were relevant in rebutting the impression that Mr Fender was honest and credible when he explained that he had a moral objection to gangs and gun-related activity which by its nature entailed the risk of violence. The antecedents were relevant to that particular issue and in a broader sense to the credibility of his account and his case that he lacked a tendency or propensity to be involved in gun trades.

Turning to the gang affiliation evidence, the court addressed the three strands of Miss Power’s argument. On the admissibility of PC Akkaya’s evidence as expert evidence, the court noted that the Crown had not applied to reopen the prosecution case to call PC Akkaya and instead used information in parts of the report as a basis for cross-examining Mr Fender on his claim that he did not have gang connections. The nub of the complaint was therefore not truly about the admissibility of expert evidence but about the use to which the contents of such a report could subsequently be put. On the extent of the material put in cross-examination, the court held that only parts of the contents of the report were put to Mr Fender. The Crown introduced into evidence six photographs downloaded from his phone showing named individuals said to be from specific gangs. The extent of the material put in cross-examination was not extensive and was supplemented by agreed facts on the previous convictions of photographed individuals. If the jury accepted the prosecution suggestion that these were gang members and it could be inferred that Mr Fender had connections with them because he had images of them on his phone, then it was relevant to refute his case that he had no gang affiliations. The court did not consider that this evidence went too far; it was a carefully tailored approach which accorded with the judge’s desire to prevent the issue becoming satellite litigation.

On the third point, the court acknowledged that because the Crown did not seek to call PC Akkaya to give expert evidence, there was no actual proof that the individuals recorded on Mr Fender’s phone were gang members. In his legal directions the judge accurately summarised the competing contentions, saying only that the prosecution “suggested” that the individuals were gang members, and did not say that there was evidence showing that they in fact were. He then summarised Mr Fender’s evidence to the effect that he had no gang connection himself and did not know whether the photographed individuals had any such connections. Miss Power accepted that she approved the manner in which the judge formulated this part of the directions to the jury and that no objection or criticism was made at the time, though she submitted candidly that this was in error on her part and the judge should have added caveats emphasising that questions put by counsel in cross-examination were not evidence and that there was no evidence before the court demonstrating that the individuals were gang members. The court held that in an ideal world the judge would have added these provisos, but was not persuaded by the argument. First, the court attached weight to the fact that experienced and skilled counsel at the time did not consider such caveats necessary, and nor did the judge or the prosecution. The court was bound to give some weight to the fact that counsel and judge were best placed to make that sort of evaluative judgment during the trial and there was a real danger in attempting to second-guess what should have been said after the event. Second, there was no criticism of the accuracy of what the judge actually did say. It was to be inferred from the judge’s choice of language that the prosecution case on gang affiliation was nothing more than suggestion and was not fact. The court was by no means convinced that the jury would have been confused even if it would have been better had the judge made these points clear. Ultimately the criticisms about the gang affiliation issue were not justified.

Lord Justice Green made a number of additional general observations. On the complaint that Mr Fender’s evidence did no more than refute the basic charge against him, the court held that this point was unjustified. Mr Fender’s primary defence was that he attended the flat simply to acquire cannabis and was not a dealer in weapons or ammunition. An essential issue for the jury was whether his presence at the gun sale was pure coincidence. The main thrust of his evidence lay in providing explanations for prima facie inculpatory evidence relating to such matters as his presence in the flat, CCTV evidence of his fleeing, cell site and call data evidence linking him to co-defendants, his arrival at the flat in a convoy possibly with a lookout, and his connection to a person able to tip him off that the police were conducting a raid. The creation of the alleged false impression did not go to these core facts. Mr Fender did not need evidence of impression to advance his primary case. His evidence instead created a secondary defence based upon a disinclination or lack of propensity. The primary defence was that he did not do it; the secondary case was that he would not do it. On whether the judge permitted more evidence than was necessary to rebut the impression, the court considered that the evidence did not go beyond what was necessary. The judge was best placed to make a judgment call about this and the court should show reticence in the absence of a clear error in interfering with plainly fact-sensitive decisions. The judge expressly contemplated the limits of what he considered necessary to refute the false impression, which was why he refused to permit previous convictions relating to sexual assault or causing death by dangerous driving to be adduced and why he gave directions to ensure that the matter did not assume disproportionate significance by cautioning the prosecution to avoid the issue becoming satellite litigation. He also made clear that he contemplated the possibility of Mr Fender having the right to call additional evidence to rebut the Crown rebuttal evidence.

In short, the Court of Appeal held that Mr Fender had conveyed a false impression by portraying himself as a man of peace with a moral objection to gangs and firearms, that the prosecution was entitled to adduce bad character evidence to correct that impression, that the evidence adduced went no further than necessary, and that the judge’s directions were adequate; the appeal against conviction was accordingly dismissed.