Chand, R. v

Factual and Procedural Background

This opinion concerns a renewed application for a lengthy extension of time to apply for leave to appeal against conviction, following refusal by a single judge. The applicant, aged 52, was convicted on 27 February 2020 at the Crown Court at Isleworth of two offences: sending a communication conveying a threatening message contrary to section 1(1)(a) of the Malicious Communications Act 1988, and criminal damage. Due to the pandemic, sentencing was delayed until 5 November 2020, when the applicant was sentenced to a 12-month community order with a rehabilitation activity requirement and a restraining order was imposed.

The applicant sought an extension of 251 days to pursue the appeal, with the delay attributed to the applicant's legal representative misunderstanding the relevant time limits. The court considered the merits of the appeal application independently of the extension request.

The offences arose from a series of incidents between August and October 2018 involving the applicant and his wife's brother and sister-in-law. The prosecution alleged hostility and aggression culminating in a threatening phone call and criminal damage to the complainants' home. The applicant denied these allegations, giving evidence including an alibi supported by his mother.

Central contested evidence was a series of Facebook posts from the account of the applicant's 12-year-old son, containing derogatory allegations against the complainants. The admissibility of this evidence as bad character evidence was a key issue.

Legal Issues Presented

1. Whether the judge erred in admitting Facebook posts as bad character evidence under the Criminal Justice Act 2003.
2. Whether the Facebook posts had the requisite temporal nexus to the offences to be admissible under section 98 of the Criminal Justice Act 2003.
3. Whether the Facebook posts were admissible alternatively under section 101(1)(c) or section 101(1)(d) of the Criminal Justice Act 2003 as important explanatory evidence or evidence relevant to an important matter in issue.
4. Whether the admission of the Facebook posts rendered the trial unfair such that the evidence should have been excluded under section 78 of the Police and Criminal Evidence Act 1984.
5. Whether the convictions were unsafe given the admission of the Facebook posts evidence.

Arguments of the Parties

Appellant's Arguments

• The appellant’s legal representative accepted responsibility for the delay in filing the appeal, explaining confusion over the start date for the appeal period but emphasized that the delay was not the applicant’s fault.
• The appellant contended the judge erred in admitting the Facebook posts as bad character evidence, arguing there was no certainty of the required temporal nexus under section 98 of the Criminal Justice Act 2003.
• It was submitted that the periods between the posts and the offences were too long to establish the necessary nexus.
• Alternatively, the appellant argued that the posts were not admissible under section 101(1)(c) because they did not make the case easier to understand, merely filling out the picture.
• The appellant sought exclusion of the Facebook posts under section 78 of the Police and Criminal Evidence Act 1984 on grounds of unfairness and prejudice.

Respondent's Arguments

• The prosecution argued that the Facebook posts were admissible as evidence "to do with the alleged facts of the offence" under section 98 of the Criminal Justice Act 2003, because they were temporally connected to the offences.
• Alternatively, the prosecution contended the evidence was admissible under section 101(1)(c) as important explanatory evidence or under section 101(1)(d) as relevant to an important matter in issue.
• The prosecution maintained the evidence was relevant to motive and illustrated a background of hostility, supporting the circumstantial case.
• The prosecution opposed exclusion under section 78, asserting the evidence was not unfairly prejudicial and the appellant had ample opportunity to address it.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the applicant’s representative’s frank concession regarding the delay but found this did not justify the extension of time. The court proceeded to consider the merits of the appeal independently.

Regarding the Facebook posts, the court analysed their admissibility under the Criminal Justice Act 2003. It accepted the prosecution’s argument that the posts had a sufficient temporal nexus with the offences, falling between the dates of the two offences, supported by the complainants’ evidence that they first saw the posts after reporting the threatening call.

The court found the posts relevant as they demonstrated ill-feeling and motive, and were therefore admissible either under section 98 or alternatively under section 101(1)(d) as relevant to an important matter in issue. The court rejected the appellant’s narrower interpretation of the explanatory evidence gateway under section 101(1)(c).

On the fairness issue under section 78 of the Police and Criminal Evidence Act 1984, the court found no unfairness in admitting the evidence. The applicant had the opportunity to address the posts in his evidence and the evidence did not cause undue prejudice or distract the jury.

Ultimately, the court concluded that even if there had been any error in admitting the posts, it did not render the convictions unsafe. The real issue was the credibility of the witnesses, which the jury resolved against the applicant after a full and fair trial and summing-up.

Holding and Implications

The court refused leave to appeal against conviction and refused the extension of time required to bring such an appeal.

The direct effect is that the applicant’s convictions and sentence stand. No new legal precedent was established by this decision, which reinforces established principles regarding the admissibility of bad character evidence and the strict approach to extensions of time for appeals.