Introduction

Bogdanovic v ([2020] EWCA Crim 1229) is a pivotal judgment delivered by the England and Wales Court of Appeal (Criminal Division) on September 8, 2020. The case involves an appeal against conviction of the appellant, Bogdanovic, who was sentenced to 12 years' imprisonment following his conviction on two counts: supplying a Class A controlled drug and possessing criminal property. Central to the appeal are three grounds: the exclusion of bad character evidence related to his co-accused, comments made by the judge in the Route to Verdict, and jury directions on the standard of proof. This case delves into the intricate application of Section 100 of the Criminal Justice Act 2003 concerning the admissibility of non-defendant's bad character evidence.

Summary of the Judgment

The Court of Appeal examined the appellant's three grounds of appeal. The first ground contended that the trial judge erred in excluding bad character evidence related to Bogdanovic's co-accused, arguing that such evidence could have supported his defense. The second ground focused on a comment made by the judge in the Route to Verdict, which the appellant claimed unfairly framed the prosecution's case. The third ground challenged the judge's direction to the jury regarding the standard of proof.

After thorough analysis, the Court upheld the original convictions. It concluded that the exclusion of the bad character evidence was appropriate, as the evidence did not possess substantial probative value in relation to the central issue of who possessed the 30,060 in cash at the time of the arrest. The Court also found the judge's comments in the Route to Verdict and the jury direction on the standard of proof to be legally sound and not detrimental to the fairness of the trial.

Analysis

Precedents Cited

The judgment references several key precedents to underpin its reasoning:

• R v Braithwaite [2010]: Highlighting the fact-sensitive nature of assessing probative value under Section 100.
• R v Dizaei [2013]: Affirming that the court can consider the risk of satellite litigation when determining admissibility.
• R v Stephens [2002], R v Majid [2009], and R v JL [2017]: Relating to jury instructions on the standard of proof.
• R v King [2015], R v Umo & Ors [2020], and R v DG [2020]: Further clarifying applications of Section 100 and related considerations.

Legal Reasoning

The Court meticulously analyzed Section 100 of the Criminal Justice Act 2003, which governs the admissibility of non-defendant's bad character evidence. The key considerations include whether the evidence is:

• Important Explanatory Evidence: The evidence must aid in understanding the case.
• Substantial Probative Value: It must significantly relate to a matter in issue.

Applying these criteria, the Court determined that the bad character evidence related to Davis did not sufficiently contribute to the central issue of who was in possession of the cash at the time. The evidence was deemed to lack the necessary probative value and was not considered important explanatory evidence. Additionally, the potential for satellite litigation—whereby separate, albeit related, factual issues could derail the trial—was minimal in this context.

Regarding the Route to Verdict, the Court found the judge's inclusion of information aligning with the prosecution's narrative was within acceptable bounds, noting that any potential bias was mitigated by the opportunity for the defense to challenge these points during closing arguments.

On the jury direction concerning the standard of proof, the Court upheld the judge's explanation, affirming that terms like "sure" are to be understood in their ordinary context without necessitating a mathematical or statistical interpretation.

Impact

This judgment reinforces the rigorous standards required for admitting non-defendant's bad character evidence under Section 100. It underscores the necessity for such evidence to be directly relevant and substantially probative to the matter at hand. Furthermore, it elucidates the boundaries judges must observe when providing Route to Verdict comments and directing juries on the standard of proof, thereby safeguarding the fairness of criminal trials.

Complex Concepts Simplified

Bad Character Evidence

Bad character evidence pertains to information about a person's previous misconduct, which is not directly related to the current charges. Under Section 100 of the Criminal Justice Act 2003, such evidence is typically inadmissible unless it serves an important explanatory purpose or has substantial probative value concerning issues in the case.

Section 100 of the Criminal Justice Act 2003

This provision outlines the conditions under which a court can admit evidence about someone else's bad character. The key aspects include:

• Important Explanatory Evidence: Evidence that helps the jury understand the case better.
• Substantial Probative Value: Evidence that significantly relates to a key issue in the trial.

The court must assess these criteria meticulously to ensure that admitting such evidence does not unfairly prejudice the defendant.

Standard of Proof

In criminal cases, the standard of proof is "beyond a reasonable doubt." This means the jury must be convinced of the defendant's guilt to a high degree of certainty. In this case, the jury was instructed to interpret "sure" in its ordinary meaning rather than as a quantifiable measure.

Conclusion

The Bogdanovic v EWCA Crim judgment serves as a significant reaffirmation of the principles governing the admissibility of non-defendant's bad character evidence under Section 100 of the Criminal Justice Act 2003. By upholding the exclusion of such evidence in this case, the Court of Appeal emphasizes the importance of relevance and probative value in maintaining the fairness of criminal proceedings. Additionally, the judgment provides clarity on the appropriate scope of judges' comments in the Route to Verdict and reinforces the proper guidance on the standard of proof juries must follow. Overall, this case underscores the judiciary's commitment to safeguarding defendants' rights while ensuring that only pertinent and substantial evidence shapes criminal convictions.