R v Gholami: Court of Appeal Re-affirms Trial Judges’ Discretion on Hearsay and Clarifies the “Wholly” Direction for Bad-Character Evidence
1. Introduction
The decision in Gholami, R. v ([2025] EWCA Crim 290) confronts two perennial difficulties in criminal trials:
- When, and on what basis, may disputed hearsay and alleged prior statements of the defendant be placed before a jury?
- How must a judge direct a jury on the proper use of bad-character (propensity) evidence—particularly where only the word “wholly” is used, and the word “mainly” is omitted?
The Court of Appeal (Criminal Division), constituted by Lord Justice Lewis, refused leave to appeal against Jan Ali Gholami’s murder conviction. In doing so it delivered a carefully reasoned judgment that cements the breadth of the trial judge’s gate-keeping discretion under sections 114 and 78 of the Criminal Justice Act 2003 (“CJA 2003”) and clarifies that a direction not to rely “wholly” on bad-character evidence is ordinarily sufficient.
2. Case Background
• The fatal incident. On 27 May 2020, Zahra—Gholami’s adopted four-year-old daughter—sustained catastrophic head injuries and later died.
• The competing accounts. Gholami claimed he returned from a trip to Tesco to find Zahra injured; his wife asserted Zahra had fallen down the stairs. The Crown alleged deliberate injury by Gholami and an attempted “alibi” using CCTV, a time-stamped photo and a Tesco receipt.
• The trial. Before Wall J at Maidstone Crown Court (January 2024), the prosecution sought to adduce (a) hospital-based hearsay that Gholami said his wife rang him while he was in Tesco, and (b) three strands of propensity evidence indicating domestic violence. The jury convicted and Gholami sought leave to appeal.
3. Summary of the Judgment
The Court of Appeal refused leave on every proposed ground:
- Hospital hearsay admitted properly. The trial judge was entitled to change his initial ruling and admit the doctors’ evidence. The additional material (direct recollection by Dr Bokhari and a contemporaneous note by Dr Ambulkar) justified admission under section 114(2) CJA 2003; cross-examination safeguarded fairness.
- Propensity/bad-character evidence admissible. Applying sections 101-103 CJA 2003 and section 114, the judge had addressed every statutory factor and balanced probative value against prejudice; no error of principle arose.
- Direction on bad-character impeccable. Although the judge told the jury not to rely “wholly” (without adding “or mainly”) on the propensity evidence, the summing-up, read fairly, left no realistic prospect of jury misunderstanding.
Accordingly, none of the grounds rendered the conviction unsafe (s.2 Criminal Appeal Act 1968).
4. Analysis
4.1 Precedents Cited & Their Influence
While the Court did not list every authority expressly, its reasoning draws heavily on leading cases that shape hearsay and bad-character jurisprudence:
- R v Y [2008] EWCA Crim 10 – establishes the flexible yet structured approach under s.114(2) (“interests of justice” test) and the importance of reliability, necessity and fairness.
- R v Horncastle [2009] UKSC 14 – re-affirms that hearsay can be admitted provided adequate safeguards exist (cross-examination on the circumstances, corroboration, judicial directions).
- R v Tsekiri [2017] EWCA Crim 40 – emphasises contemporaneity and corroboration as potent indicators of reliability for hearsay statements.
- R v Hanson [2005] EWCA Crim 824 – leading guidance on propensity evidence; clarifies that a single incident may suffice and that judges must warn juries not to convict solely or mainly on bad-character.
- R v Campbell [2007] EWCA Crim 1472 – approves “do not rely wholly or mainly” wording but stresses substance over form.
- R v Rowton (1865) – classic authority that character alone cannot prove guilt; informs modern bad-character directions.
By accepting the “wholly” direction as sufficient, the Court aligned itself with Campbell’s substance-over-form rationale and further refined the position: omission of “or mainly” is not fatal where the jury is repeatedly reminded to weigh all the evidence.
4.2 The Court’s Legal Reasoning
- Admissibility of the Hospital Statements (Hearsay)
• Trigger: Initial exclusion reversed after fresh material emerged.
• Test: Section 114(2) CJA 2003 – “interests of justice.”
• Factors considered: reliability (first-hand account + contemporaneous note), importance to the case (central to alleged alibi fabrication), prejudice (limited, given opportunity for rigorous cross-examination) and feasibility of securing direct evidence (the patient-doctor context rendered formal recording impracticable).
• Result: Jury could rationally evaluate credibility; no error of law. - Propensity Evidence
• Statutory gateways: s.101(1)(d) & s.103 CJA 2003 (important explanatory evidence; propensity to commit offences of the kind charged).
• Hearsay overlay: s.114(2) again invoked because material comprised out-of-court statements by wife and neighbour.
• Safeguards: Wall J weighed each of the s.114(2) factors, specifically the extent of corroboration, and then conducted the ancillary s.78 PACE balancing test (fairness).
• Deference: Appellate court reluctant to interfere where the judge has strictly followed the statutory checklist (Tully principle). - Summing-Up Direction
• Issue: Was “wholly” enough? Court held yes, for three reasons: (a) The summing-up repeatedly emphasised that bad character was only a part of the evidential picture; (b) Detailed explanation of relevance and limitations met Hanson guidelines; (c) No realistic scenario where jury could have relied mainly on propensity alone in light of extensive forensic, medical and timing evidence.
4.3 Likely Impact on Future Litigation
- Hearsay admissibility. The judgment pragmatically endorses trial-level reassessment when new context emerges, encouraging judges to revisit earlier rulings without fear of appellate criticism provided the s.114(2) checklist is systematically applied.
- Form of bad-character directions. Appellate courts may treat linguistic lapses with tolerance if the summing-up, viewed holistically, conveys the correct principle. Defence counsel will need to show genuine risk of misunderstanding, not mere lexical omission.
- Propensity evidence in domestic abuse/murder cases. The decision indicates that post-event allegations of domestic violence, even when largely hearsay and historically separate, may be admissible where identity of perpetrator and accident/deliberate dichotomy are live issues.
- Practice for medical professionals. Concomitantly, the case underscores the evidential significance of contemporaneous clinical notes and may influence hospital protocols for recording interpreters’ conversations.
5. Complex Concepts Simplified
- Hearsay (CJA 2003, s.114). Evidence given in court that repeats an out-of-court statement to prove its truth. Normally excluded unless a statutory gateway—such as “interests of justice”—is satisfied.
- Section 114(2) Factors. A list of considerations (e.g., reliability, importance, prejudice, circumstances of making) the judge must balance in deciding whether admitting hearsay serves justice.
- Section 78 PACE 1984. Empowers judges to exclude prosecution evidence if admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
- Propensity Evidence (Bad Character). Evidence showing a defendant’s tendency to behave in a certain way (e.g., prior acts of violence) used to suggest likelihood of committing the charged offence.
- “Wholly or Mainly” Direction. A caution that jurors must not convict solely—or predominantly—because the defendant behaved badly in the past; they must evaluate all the evidence.
6. Conclusion
R v Gholami is less about breaking doctrinal ground than about consolidating two pivotal areas of criminal evidence:
- It confirms the breadth, yet structure, of the s.114(2) “interests of justice” discretion—particularly apt where disputed hearsay concerns fabricated alibis and there is cogent contemporaneous support.
- It modulates the linguistic strictness surrounding Hanson-style directions, signalling that an omission of “or mainly” will rarely vitiate a conviction if the overall instructions achieve the same protective purpose.
The Court’s judgment reinforces confidence in a trial judge’s robust case-management powers while reminding advocates that appellate scrutiny focuses on substance, not semantics. Future defendants will need to demonstrate not merely technical error but tangible unfairness to dislodge jury verdicts grounded in a careful application of the statutory evidence code.
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