Articles Criminal Defence 18th Dec 2015

Prosecution bad character argument leaves an unpleasant smell

The case of R. v. Sullivan [2015] EWCA Crim 1565 was about a defendant who had a bad sense of smell.

He was the owner of a house at Haystone Place in Plymouth. When police drove into the road he lived in with their windows down, they could smell cannabis. Quite literally following their noses, they ended up at the defendant’s front door, where the smell was overwhelming.

The defendant answered the door and he appeared nervous to the police. A search of the property revealed quite a sophisticated cannabis production operation in the basement and part of the ground floor. Apart from the smell there was a noisy extractor fan. The electricity meter had been by-passed.

The defendant was charged with cannabis cultivation. He denied any knowledge of the plants. He said he lived at the top of the house and had rented the basement and part of the ground floor to a Mr Brown. At trial he said he had a bad, or sometime no, sense of smell and he was able to back up this unlikely claim with some good medical evidence.

Although there was no forensic or documentary evidence linking the defendant with the basement production areas, he did have a number of potentially incriminating messages on his phone. The problems arose from the prosecution’s application to admit the messages.

It was common ground that the messages related to a period outside the indictment and could not refer to the same address. They involved references to “watering”, “timers”, “meter readings” and so on. Taken together they were suggestive that there had been a previous crop, at a different location.

The Crown applied to admit the evidence on the remarkable basis that under section 98 of the Criminal Justice Act 2003, the messages were “to do with the alleged facts of the offence” and therefore not bad character at all. It was suggested that they were “reasonably contemporaneous” and “closely associated with the subsequent production.” In the alternative they also made a standard bad character application.

The Learned Judge ruled in the Crown’s favour on the first ground and therefore when he came to direct the jury he did not direct them in terms on how to approach bad character evidence.

The defendant was granted leave to appeal. Even in the Court of Appeal the prosecution attempted to sustain the Learned Judge’s decision. In oral argument, counsel for the Crown submitted that the previous crop was to do with the facts of the alleged offence because “offenders gain experience and knowledge of how to perpetrate a particular kind of crime every time they offend in that way.”

The Court was having none of it. The judgment points out that if that were true, previous convictions for a similar crime would always be admissible under section 98. The Court ruled that generally “the (criminal) educational opportunity provided by past instances of offending does not afford a sufficient nexus to the offence with which the defendant is charged”.

While the court felt that the evidence against the defendant was strong, he had a “clear and credible” defence and the text messages were potentially very damaging to him. The defendant’s conviction was unsafe because of the lack of a proper bad character direction, and was quashed.

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