Mullings v R [2010] EWCA Crim 2820

Case No 2009/02436/B4[2010] EWCA Crim 2820IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LIVERPOOL CROWN COURT
MR JUSTICE LANGSTAFF
T2008/7217
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 01/12/2010
Before
LORD JUSTICE PITCHFORDMR JUSTICE HENRIQUESHH JUDGE MILFORD QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
Between
TYLER JOEL MULLINGSAppellantRRespondent
Mr Weatherby (instructed by Robert Lizar - Solicitors) for AppellantMr A Menary QC and Mr Woodhall (instructed by CPS) for RespondentHearing Hearing date: 2 November 2010
JudgmentLORD JUSTICE PITCHFORD :
[1]This is the appeal of Tyler Joel Mullings, with leave of the full court, against his conviction at Liverpool Crown Court on 6 April 2009 for an offence (Count 4) of possessing a firearm with intent to endanger life, contrary to Section 16 Firearms Act 1968. Mr Mullings was sentenced on 7 April 2009 to a term of six years detention in a young offender’s institution with a direction that 216 days should count for the purposes of Section 240 Criminal Justice Act 2003.[2]The appellant was one of 11 defendants tried before Langstaff J and a jury. The prosecution case was that each of the accused was a member of or a sympathiser with a criminal gang in Manchester known as the Gooch gang. Several defendants were charged with offences of conspiracy to possess firearms, conspiracy to supply class A controlled drugs, conspiracy to murder, attempted murder and possession of controlled drugs. This appeal is concerned with a discrete and largely self contained incident represented by count 4 in the indictment. The link between count 4 and other counts was the appellant’s co-accused, Narada Williams, who was convicted both upon this count and upon others charging him with conspiracy, murder and attempted murder. The appellant’s friend Kayael Wint was also charged in count 4 and convicted.[3]Mr Weatherby represented the appellant at trial and has presented his appeal before this court. Mr Menary QC and Mr Woodhall appeared for the prosecution at trial and for the respondent in the appeal.[4]Kayael Wint was a member of or associated with a gang called Old Trafford Cripz (or OTC). OTC was affiliated to the Gooch gang. Rydell Waite was a known associate of Wint. On 2 February 2007, when the appellant was aged 16, Rydell Waite was shot and injured in Old Trafford, Manchester, an area known to be OTC ‘territory’. The prosecution case was that what followed was intended to be retaliation for the shooting.[5]Shortly before 8pm, a witness returning home in his car saw a group of males, some of them on bicycles, close to 30 Pepperhill Road in Moss Side. The sighting was significant because the witness was a local man who had never seen the youths before. They were on what was known locally as Doddington territory. The Doddington gang were enemies of the Gooch gang. The same witness then saw a male he did recognise walking from Wilcock Street towards 41 Pepperhill Road. The witness believed that the male he recognised was connected to 30 Pepperhill Road and had on other occasions been seen close to sheds where guns and ammunition were believed to have been hidden. The male looked towards the group in Pepperhill Road. The group moved along Pepperhill Road towards Wilcock Street. The witness saw that one of the group had a gun in his hand and he was pointing with the other in the direction of Wilcock Street. The witness entered his home and shortly afterwards heard shots, about ten in all.[6]A police officer passing in a car then saw five or six males rushing out of Plainsfield Street, an extension of Wilcock Street. Two had bicycles and one was limping. They all wore dark clothing and their faces were covered. They crossed Alexandra Road and ran into 72 Bold Street. Local reputation defined Alexandra Road as the dividing line between the territories of the two gangs. At 8pm a 999 call was made from 72 Bold Street. When officers attended they found several young males. Kayael Wint was lying prone in the hallway with gunshot wounds to his legs. He was wearing a single trainer and body armour. The other trainer was later recovered from Wilcock Street. An ambulance attended at the junction of Alexandra Road south and Yarborough Street. Narada Williams appeared. He had suffered a gunshot wound to his right foot and a bullet was recovered from his sock. He too was wearing one trainer. Narada Williams was later to admit to a witness that he had been shot in the foot and had answered the fire of the person who had shot him. Forensic analysis found high levels of gunshot residue types 3 and 1 on Narada Williams’ clothing. On the jury’s findings Narada Williams was an influential member of the Gooch gang.[7]A firearms expert attended the scene in Wilcock Street and concluded that there had been an exchange of fire from each end involving not fewer than three firearms. At least five shots were fired from a single weapon at the Pepperhill Road (Doddington) end of Wilcock Street and four shots were fired from two different hand guns at the sub-station (Gooch) end where three bicycles were found abandoned, one of which belonged to the appellant. There were strike marks on the road surface and kerb edge. The expert’s conclusion was that the rival gunmen were firing towards, and a short distance from, one another. Kayael Wint and Narada Williams were both shot with bullets from the same weapon fired from the Pepperhill Road end of Wilcock Street. Kayael Wint admitted his presence in Wilcock Street at the time of the shooting. His second trainer was found near the abandoned bicycles.[8]The prosecution invited the jury to infer that the group on bicycles comprised members and supporters of the Gooch gang patrolling Doddington territory looking for or expecting confrontation with members of the Doddington gang; that the group was armed with at least two firearms; that participation in the group activity implied complicity in the possession of firearms with intent to use them to endanger life if the occasion arose.[9]The appellant was interviewed as a witness on 8 March 2007. His account was the subject of a formal admission. He said he had been walking through Moss Side in the area of Wilcock Street with his friends, Kayael Wint and ‘Ossei’, when four or five lads wearing hoods called on them to stop. The appellant ran off in one direction and his friends ran the other way. He claimed that he had been the victim of a robbery earlier that day when his bicycle had been stolen from him. He agreed that his bicycle had been dumped by someone in Wilcock Street. He presumed that the group on bicycles, including his own, were members of the Doddington gang. “It was their estate”, he said.[10]The prosecution asserted that the appellant gave an incomplete and false account of his involvement in the Wilcock Street events to conceal his own involvement in the Gooch gang’s invasion of Doddington territory. The purpose was to confront Doddington gang members and to engage, if necessary, in a gun fight. It was not suggested that the appellant was personally in possession of a firearm but he must have been aware that others in the group were carrying firearms with the requisite intent and he participated in that knowledge and with the same intention. Count 4 was, therefore, put against the appellant on the basis of joint possession with intent to endanger life.[11]The appellant was taken into custody on other matters in March 2007. Recovered from his cell in November were several handwritten letters. The letters were heavily redacted for the purposes of disclosure and presentation of the evidence. In them the author or authors, using the initials of various Manchester gangs, demonstrated allegiance to the Gooch gang and its associates, including the OTC, and hatred for the Doddington gang which was included in a “death list”. The prosecution was unable to establish on what date or dates the documents had been received by the appellant but it was common ground that they were sent to the appellant in custody sometime after his remand in March 2007.[12]We do not have a transcript of Mr Menary’s argument for the admission of these documents by the trial judge. We are, however, informed that he argued:(1) Possession of the documents was evidence of a disposition towards misconduct, namely membership of or support for a criminal gang; but(2) it was evidence which (s.98(a) Criminal Justice Act 2003) “has to do with the alleged facts of the offence with which the defendant was charged”; and(3) was therefore admissible at common law; or(4) in the alternative, the evidence was bad character evidence which was admissible under s.101(1)(d) of the 2003 Act as relevant to an important matter in issue, namely whether the appellant’s admitted presence in Wilcock Street was innocent or gang related.[13]It was Mr Menary’s submission that the writing amounted to an implied assertion by the writer that the appellant was himself a member of or sympathiser with the objectives of the Gooch gang. If he was wrong about that, he relied upon the appellant’s receipt and retention of the documents as evidence of his disposition.[14]In a ruling given on 7 January 2009 Langstaff J said (Transcript Vol III, page 7 E):
“This evidence, it is said by the Crown, helps to establish that Mullings was a member of the Gooch gang … In my view it is not evidence that Mullings belonged to a criminal gang, it may be evidence that those who wrote to him thought that he might do so. It does not seem to me to be reprehensible behaviour or misconduct to receive letters written by others which are expressed in extreme terms. I do not take the view that the receipt of these letters shows that Mullings is a member of a particular gang other than by, potentially, hearsay, though I am a little sceptical of Mr Weatherby’s submission to that effect, and by extremely tenuous inference. No application has been made under the hearsay provisions, if indeed it is properly characterised as hearsay… I have to consider whether it is admissible. If it is not, as I think it is not, within Section 98 as bad character evidence it may be admissible only if it is relevant. Here, it seems to me that there is a potential relevance in the material not on the basis that it shows Mullings was a member of a gang but it does show that the extent of the hatred and the extent of the attitude which those who regard themselves as members of the Young Gooch Crew have and bear towards those who they believe belong to the Doddington Gang or the Longsight Crew. It is capable therefore of showing that if Mullings can be shown to have been in the presence of someone who on the prosecution case is a member of the Young Gooch or the Gooch Gang that he, Mullings, would, or it is relevant as to the issue of whether he, Mullings, foresaw that that person if he had a gun would or might discharge it with fatal intent towards members of the Doddington group… As I have already said, there is evidence available in the prosecution case that Narada Williams was present in Wilcock Street. If the jury come to the conclusion that he was…, given Narada Williams’ membership of the Gooch gang as other evidence suggests, and given Mullings’ own expression that he was in Doddington territory at the time…, the reasonable inference [may be] that those that were shooting at him may well have been members of the Doddington Gang [and] it seems to be relevant to that issue. Accordingly it seems to me that there is no proper objection to the evidence from that letter upon the basis of relevance. I do not consider that the receipt of such letters is something which properly can be shut out under Section 78 of PACE…”
[15]The appellant did not give evidence in his own defence; nor did Wint or Williams. In his directions to the jury upon the subject of the disputed letters

the judge said (Summing up Transcript Volume V, Page 186 C-G):

“We do not always choose our friends, members of the jury, and if our friends happen to be up to no good that does not mean to say we are. You have heard of that evidence [the documentary evidence] only for this reason: it shows that some associates of Tyler Mullings have an hostility to the Doddington. It is after, sometime after the Wilcock Street shooting that he got those letters and it does not show he was a member of the gang but it does show, perhaps, that he might have thought if he was in Doddington territory that he was at some risk and, the Crown would say, if he thought… he was at some risk might he not have taken some protection along or been with someone who could offer him some protection?”

The judge returned to the subject later in his summing up (at page 486 C-E):

“You will want to consider the difference between his position and that of Kayael Wint, Kayael Wint was an acknowledged member of the Old Trafford Cripz, Tyler Mullings was not shown to be a member of any gang. There was correspondence which came to him when he was in prison from others but that correspondence endorsing the benefits of gang membership in large part was not written [by] him, it was written to him. What that shows is that he knew that a number of people that he knew were or might be involved in gangs and enthusiastically so, but it does not itself show that he was a member of a gang, and it also shows that he would have appreciated that in being on the east side of Alexandra Road he was in enemy territory. The Crown say that it [is] relevant when you come to consider whether he knew that others had a gun with them and with what intention they might have had it.”
[16]Thus, submits Mr Weatherby, the judge directed the jury that they could consider the documents for the purpose of reaching a conclusion whether the following were appropriate inferences (and we paraphrase):(1) they demonstrated hostility by associates of the appellant towards the Doddington gang;(2) by reason of that association, if the appellant found himself on Doddington territory with members of the Gooch gang he would have reason to fear for his safety without armed protection;(3) the appellant would have known that by associating with the Gooch gang in Doddington territory he would be associated with gang business; and(4) the prospect that the appellant would be “innocently” associating with the Gooch gang in Doddington territory was remote.[17]Mr Weatherby objected to the admission of the documents for this purpose. He submitted that since none of the documents was written by the appellant and all of them were received after the count 4 incident had taken place, they were incapable of establishing the inferences sought, which related to a state of knowledge and mind specifically on 2 February 2007 and at no later time. Furthermore, whatever direction the jury received to the contrary, the prejudicial affect of the documents was overwhelming and they should have been excluded under Section 78 Police and Criminal Evidence Act 1984. Despite the direction received by the jury that the documents could not establish that the appellant was himself a member of the Gooch gang, the judge’s directions as to the purpose for which they could be used was so nuanced, if not confusing, that the jury would, in all probability, have treated the document as evidence of the appellant’s membership of the Gooch gang or one of its affiliates.[18]If, contrary to the submission that the post-incident receipt of these letters rendered them irrelevant, the letters were to be admitted in evidence, Mr Weatherby submitted they could only be admitted as bad character through a gateway provided by section 101 Criminal Justice Act 2003. If that had been the basis for admission, a bad character direction would have been required and none was provided. Mr Menary’s response was a concession that the basis upon which the material was admitted was not one sought by him. He recognised that the narrow purpose for which the judge admitted the evidence added little if anything to(i) the concession already made by the appellant in his witness statement that he knew that he was on Doddington territory,(ii) Wint’s concession that he was a member of OTC,(iii) the appellant’s admission that Wint was his friend and(iv) evidence that OTC was an affiliate of the Gooch gang. While the judge may have admitted the evidence for a reason which was ‘tenuous’, Mr Menary submitted that the effect of its admission for the narrow purpose stated by the judge was to provide the appellant with a more generous direction than that to which he was strictly entitled. Accordingly, no unfairness resulted.[19]We shall first examine the basis on which the prosecution made its application for the admission of the evidence to the judge. Hearsay - the assertive nature of the statements[20]The letters contained representations of fact or opinion intended to cause the recipient to believe them, namely that(i) membership of Gooch was good,(ii) Doddingtom was the enemy of Gooch, and(iii) Doddington members should be killed. Had the admission of the documents been sought to prove the truth of the assertions made they would have constituted hearsay statements under sections 114(1) and 115(2) and (3) Criminal Justice Act 2003. This was not, however, the purpose for which the prosecution was seeking to adduce the statements. The prosecution sought to adduce the statements to establish that on 2 February 2007 the appellant shared these sentiments. The implied assertion was that the appellant was himself a member of the Gooch gang or one of its associates. The implied assertion was supported by the inference invited that such letters would only have been written to another member or associate. It was, in our view, arguable, as Mr Menary had submitted to the judge, that since the statements were not being admitted to prove the truth of the fact or opinion they expressed they did not constitute hearsay evidence and were admissible as tending to prove the appellant’s own membership of or sympathy with the objectives of Gooch. As the Vice President, Sir Christopher Rose, said in Singh [2006] EWCA Crim 660, [2006] 1 WLR 1564 at para. 14:
“What was said by the callers in Kearley would now be admissible as direct evidence of the fact that there was a ready market for the supply of drugs from the premises, from which could be inferred an intention by the occupier to supply drugs. The view of the majority in Kearley, in relation to hearsay, has been set aside by the Act.”
This was not, however, the basis for admission accepted by the judge.

(a) Criminal Justice Act 2003

[21]We shall next consider whether the documents amounted to bad character evidence within the meaning of s.98(a) Criminal Justice Act 2003 which provides:- “References in this Chapter to evidence of a person’s “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which— (a) has to do with the alleged facts of the offence with which the defendant is charged……” The word “misconduct” is defined in s.112(1):- “misconduct” means the commission of an offence or other reprehensible behaviour”.[22]It follows that the appellant’s possession and retention of documents expressing the sentiments revealed would be bad character evidence if those facts were capable of demonstrating his disposition towards misconduct. The misconduct was the unlawful activity of the Gooch gang and the disposition was the inclination to support that activity. It does seem to us arguable that the possession and retention of these documents constituted evidence from which the jury could infer that the appellant identified himself with the sentiments they expressed. Had the letters been admitted to prove a disposition towards misconduct the jury would have required a careful direction to the effect that they could not use the letters for this purpose unless they were sure that possession and/or retention of the letters established the appellant’s disposition. We do not accept Mr Weatherby’s submission that their receipt after the event charged in count 4 rendered the letters irrelevant to the appellant’s disposition and state of mind on 2 February. It is not uncommon for conduct of a defendant well after the date of commission of an alleged offence, to be admitted as relevant to a propensity or disposition at the time of the offence alleged. It would have been a matter for the jury to reach a conclusion whether they had that effect or not. It seems to us that Mr Menary’s analysis was, in this respect, correct.[23]The second critical question is whether, if the jury so concluded, the evidence had “to do with the alleged facts of the offence” with which the appellant was charged. The interpretation of these words and their application to the facts of particular cases has caused some difficulty in the past. It is clear that evidence will have to do with the alleged facts of the offence if the further misconduct is a component part of the facts of the offence alleged. A further example is proof that a co-accused had pleaded guilty to a conspiracy, the existence of which it was necessary for the prosecution to establish in the case against the defendant. Evidence of criminal acts committed at the same time and place as the main offence will be admitted if the act is an integral part of the offence charged. Evidence of preparation for the commission of an offence will form part of the facts of the alleged offence. What then should be the principled approach to the issue?[24]In Tirnaveanu [2007] EWCA Crim 1239, [2007] 1 WLR 3049 (Thomas LJ, Penry-Davey J and Wyn Williams J), the appellant had been convicted of facilitating illegal entry to the United Kingdom by issuing persons with forged entry documents. The appellant had denied that he was the provider of the documents. The prosecution successfully sought the admission in evidence of other false documents found in the appellant’s possession. The trial judge admitted the documents under the common law upon a finding that they had to do with the alleged facts of the offence. Thomas LJ, delivering the judgment of the Court, said at paragraph 23:- “23. The basis on which it was contended before us by the prosecution that the evidence which they sought to adduce was "to do" with the facts of the alleged offence was that it was evidence which was central to the case in that it related to proving that the appellant was the person who had committed the offences charged in the various counts. We do not accede to that submission. As counsel for the prosecution accepted, if his submission was right, then in any case, where the identity of the defendant was in issue (including, by way of example, cases of sexual misconduct), the prosecution would be able to rely on this exclusion to adduce evidence of misconduct on other occasions which helped to prove identity. It seems to us that the exclusion must be related to evidence where there is some nexus in time between the offence with which the defendant is charged and the evidence of misconduct which the prosecution seek to adduce.” Professor J.R. Spencer, commenting upon Tirnaveanu, pointed out in the second edition of his work Evidence of Bad Character, at para 2.27:- “Although there is a potential overlap between section 98(a) and the gateways set out in section 101, it should be stressed that it is a limited one. “Evidence which has to do with the facts of the offence” is not the same as “evidence which is relevant to the offence” – or even “evidence which is central to the prosecution case”.” “Although there is a potential overlap between section 98(a) and the gateways set out in section 101, it should be stressed that it is a limited one. “Evidence which has to do with the facts of the offence” is not the same as “evidence which is relevant to the offence” – or even “evidence which is central to the prosecution case”.”[25]In McNeill [2007] EWCA Crim 2927 the Court approved the admission in evidence of the appellant’s remark to a housing officer two days after the alleged offence of making threats to kill to her neighbours, by setting fire to their home, “What do you want me to fucking do? Do you want me to burn it down? Do you want them to come out in body bags?" Rix LJ, delivering the judgment of the Court said at para. 14:
“In our judgment, however, the words of the statute "has to do with" are words of prima facie broad application, albeit constituting a phrase that has to be construed in the overall context of the bad character provisions of the 2003 Act. Thus the breadth of the words are clearly limited by the context for instance of section 101(1)(c)'s reference to important explanatory evidence, and gateway (d)'s more general reference to important matter in issue, which taken together with section 103 relates to propensity and previous convictions. In our judgment, it would be a sufficient working model of these words if one said that they either clearly encompass evidence relating to the alleged facts of an offence which would have been admissible under the common law outside the context of bad character or propensity, even before the Act, or alternatively as embracing anything directly relevant to the offence charged, provided at any rate they were reasonably contemporaneous with and closely associated with its alleged facts (see for instance the reference to R v Machado noted towards the end of Archbold 13 - 6).”
In Machado [2006] EWCA Crim 837 the bad character in question was that of the complainant who, so the defendant contended, had collapsed under the effects of the consumption of drugs and not, as was the prosecution case, as a result of being pushed by the defendant in the course of the robbery with which he was charged.[26]The Court has in several cases referred to the need for a close link in time between the misconduct or disposition towards misconduct the applicant seeks to prove and the commission of the alleged offence. In Lowe [2007] EWCA Crim 3047 [18] the Court equated the section 98(a) facts with the res gestae. In Machado the misconduct was contemporaneous with the offence. In McNeill the Court said the misconduct should be reasonably contemporaneous and closely associated with the commission of the alleged offence. In McKintosh [2006] EWCA Crim 193 [24] it was enough that the misconduct occurred in the “aftermath” of the crime charged.[27]In Haigh [2010] EWCA Crim 90, however, the appellant had been charged with the murder of her child by asphyxiation. The prosecution adduced evidence of a visit by the child’s birth-mother and her sister to see the appellant and the child a month before the death. The birth-mother gave evidence to the effect that the appellant was inattentive and inconsistent in her handling and care of the child. The appellant’s inadequate handling of the child was relevant to her state of mind at the time of the child’s death. The Court considered the test for admissibility at common law by application of section 98(a) but preferred to treat the evidence as evidence of background admissible under section 101(1)(c) Criminal Justice Act 2003. This was evidence of an event which took place remote in time from the alleged offence but it was relevant to the appellant’s attitude towards the child at the time of the alleged offence.[28]In Fox [2009] EWCA Crim 653 the appellant had been convicted upon two counts of causing a child under the age of 13 to engage in sexual activity under section 8 Sexual Offences Act 2003 and two counts of taking an indecent photograph of a child. By choreographing the girls to strike poses for the photographs the applicant, it was alleged, caused them to engage in sexual activity. Amongst other evidence it was alleged that certain poses struck by the girls were the same as those in which the applicant had photographed grown women. The issues for the jury included, in respect of the charges laid under section 8(1) of the Sexual Offences Act 2003, whether, in causing the girls to pose, the applicant caused them to engage in sexual activity. The prosecution contended that the extraneous evidence going to proof of the applicant’s state of mind, “a notebook in his handwriting and other photographs in his possession”, were excluded from the definition of bad character, even if they otherwise qualified as misconduct, because they were to do with the alleged facts of the offence with which he was charged. Scott Baker LJ said at paragraph 25 of the Court’s judgment:- “We cannot accept that submission which, if correct, would seem to us to eliminate from the bad character provisions a great deal of evidence relating to propensity or motive. The reference in section 98(a) to the facts of the offence seems to us to be to the actus reus. Here we are concerned with the applicant's intention and whether it was sexual – the mens rea.”[29]With respect to this view, expressed obiter by the Court in Fox, we doubt that section 98(a) can be so narrowly construed as to exclude from the definition only evidence of the actus reus of the offence. (See the illuminating commentary on Fox by Professor David Ormerod at [2009] Crim L.R.881). Bad character evidence includes evidence of a disposition towards misconduct and not only misconduct itself. Evidence of disposition may constitute important evidence of an intention at issue between the prosecution and the defence. If, as we think, evidence going to proof of mens rea can fall on either side of the section 98(a) line the question is where that line should be drawn. It is at this point that Professor Spencer’s observation as to the need to draw a distinction between evidence relevant to proof of the offence and evidence relevant to proof of the offence which also has to do with the alleged facts of the offence, in our view, provides assistance.[30]The facts of the offence alleged here were(i) participation with a group of supporters of the Gooch gang(ii) in joint possession of a firearm on Doddington territory(iii) walking into Wilcock Street(iv) with intent to endanger life. We shall apply the test of temporal connection or nexus between the evidence of disposition the prosecution sought to adduce (letters found in the appellant’s possession in November 2007) and the events of the night of 2 February. There was no such connection.[31]To test this conclusion by way of an example, if the prosecution had possessed evidence that in November 2007 the appellant had himself expressed support for the Gooch gang or enmity towards the Doddington gang, this may, depending upon the jury’s view, have been important evidence relevant to the appellant’s state of mind at the time of the alleged offence but it would not have been evidence which had ‘to do’ with the alleged facts of the offence. If, on the other hand, the appellant, when walking into Wilcock Street, had been shouting similar sentiments, the purpose for which the prosecution sought the admission of the evidence would be the same, but his activity would undoubtedly have had to do with the facts of the alleged offence. The appellant’s retention of documents from which the prosecution sought an inference of relevant disposition had nothing temporally or otherwise to do with ‘the alleged facts of the offence with which the defendant is charged’. It was evidence of a general disposition. It seems to us that the status of the documentary evidence was the same as that in the first example. It tended to establish a relevant sympathy with the objectives of the Gooch gang which went to the issue both of the appellant’s alleged joint possession and his intention, but it did not have to do with the alleged facts of the offence.[32]Had the letters been admitted for the purpose sought by the prosecution they would, in our judgment, have constituted evidence of bad character which went to the question whether the appellant participated in a group activity of whose objectives he was aware. We recognise that there is space for the alternative view, namely that the alleged disposition was so closely a feature of the appellant’s state of mind at the time of the incident that it was inseparable from the mens rea of the offence, namely possession with intent to endanger life. However, one of the purposes of the bad character provisions in the Criminal Justice Act 2003 is to bring within their scope evidence of extraneous misconduct or disposition towards misconduct so as to subject it to the rigour of analysis for relevance and purpose under the section 101 gateways. The wider section 98(a) is construed, and the wider the embrace of evidence which ‘has to do’ with the facts of the alleged offence, the less effective the statutory purpose becomes. In our view, the narrower interpretation of section 98(a) is to be preferred. A close temporal connection between the event, evidence of which it is sought to adduce, and the “alleged facts of the offence” is required before it can be said that the event “has to do with” those alleged facts. For reasons which will appear, however, these views are expressed obiter.[33]Whether this was or was not strictly bad character evidence within the meaning of section 98(a) of the 2003 Act, it was, in our view, admissible. If it was bad character then it was admissible under section 101(1)(d) since it went to an important issue in the case. If it was not bad character evidence, it was admissible under the common law as relevant to the issues of joint possession and intention. The test for admissibility of the bad character evidence included the section 101(3) requirement that the evidence should not have such an adverse effect on the fairness of the proceedings that it ought to be excluded. Relevant evidence should be excluded under section 78 Police and Criminal Evidence Act 1984 if its prejudicial effect would undermine the fairness of the proceedings. We do not, however, have to consider whether as evidence of bad character the letters should have been excluded because the judge admitted them on a much more limited basis. The limited purpose of admission[34]The issue placed before the jury by the prosecution was whether the group seen by the witness in Pepperhill Road, two members of which returned fire, were Gooch gang members and associates seeking out confrontation with members of the Doddington gang. In the case of the appellant the issue of membership was withdrawn from the jury. Notwithstanding the possession of letters which expressed loyalty to the Gooch gang and enmity towards the Doddington gang, the judge specifically directed the jury that they were not evidence, and that there was no other evidence, that the appellant was a member of any gang. While it is our view that the retention of the letters may have permitted the inference sought by the prosecution, we well understand the judge’s caution in declining to leave the matter to the jury on that basis. His reasoning was that the mere receipt of the letters did not amount to evidence of misconduct or a disposition towards misconduct.[35]There were, on the other hand, inferences which the jury could, if they thought it right, infer from the appellant’s possession of the documents which did not involve an inference of disposition towards misconduct. They were: by reason of his association, proved by receipt of the letters, with those who embraced the objectives of the Gooch gang the appellant would have been well aware of the risk of being present with members of the Gooch gang in Doddington territory; further, the appellant would not have been in Wilcock Street with the group unless aware that at least some of them were armed and prepared to fire if confronted. As we have already found, the date of receipt of the letters did not determine admissibility. The question for the jury was whether they supported the inference of knowledge at the relevant time. Viewed in this way the evidence did not have the quality of implying a disposition towards misconduct and was not evidence of bad character. It was, however, evidence from which the jury could infer a relevant state of mind at the time the alleged offence was committed. We have concluded that it is probable, in any event, that the appellant’s possession of the documents added little to the facts already within the jury’s knowledge. As the judge himself reminded the jury, the appellant’s close friend, Kayael Wint, was a member of the Old Trafford Cripz, a known affiliate of the Gooch gang. The appellant was in Wint’s company on Doddington territory. Earlier that day the appellant had visited the place where Rydell Waite had been shot. Wint was wearing body armour. The inference was available merely from the appellant’s close association with Wint that, if he associated with this group in Wilcock Street, they were bound, in the circumstances, to be armed and ready.[36]Since the judge gave to the jury an explicit direction limiting the purpose for which the evidence might be used, there was no prospect of the jury treating the documents as generally prejudicial. We do not accept Mr Weatherby’s assertion that the judge’s direction was unclear in its effect; nor do we accept that the jury might have ignored an explicit direction not to draw the inference that the appellant was himself a member of the Gooch gang or of an affiliated group. Only if the jury had been directed that they may reach such a conclusion would they have required a warning not to place undue emphasis on that conclusion if they reached it. For the reasons we have given no bad character direction was required. The same result was achieved by prohibiting the jury from utilising the letters as evidence of bad character. We accept Mr Menary’s submission that the appellant may have received a more generous direction from the learned judge than that to which he was strictly entitled. We do not consider that the safety of the jury’s verdict is in doubt. For these reasons, the appeal will be dismissed.

Cited in 1 later judgment