Lifestyle Evidence

It goes without saying that “lifestyle evidence” can be very damaging. There is always a fear that what the prosecution is asking the jury to conclude is that “bling equals crime.”

A picture of an impressive house or sports car, may say a thousand speculative words in their minds. This is very difficult to dislodge once made and the process inevitably includes an in depth accounting exercise which is collateral to the central issues in a case.

The topic has been considered recently, but only to some extent, in the following case.

R. v. Green [2010] Crim.L.R. 306, C.A.
Date of Judgment: July 14, 2009
Judges: Aikens L.J., Holman J., H.H. Judge Bevan Q.C.

The Court held that in a trial relating to a conspiracy to supply Class A drugs evidence of a defendant’s opulent lifestyle was admissible where it went to support the prosecution case that his income and capital were derived from the illegal drug dealing which was the subject matter of the main conspiracy alleged against him. The Court considered that the case of R. v. Morris [1995] 2 Cr.App.R. 69, C.A., was not limited to the admission of evidence of the possession of cash and there was no basis for interfering with the conviction where the judge had directed the jury that they should not hold this evidence against him unless they were sure:

(i)that the defendant’s own case as to the funding of his standard of living was untrue, and

(ii) that the standard of living could only be explained by the defendant being part of the conspiracy charged.

The Court considered that the admission of the evidence was not unfairly prejudicial because the inference sought to be drawn from it by the prosecution could be rebutted by evidence peculiarly within the defendant’s knowledge and the defendant was in a unique position to remedy any prejudicial impact it might have. __Comment by Nicholas

Corsellis This case raises the question of whether evidence of an extravagant lifestyle is in fact “bad character” evidence.

The prosecution seemed to be contending, and the Court of Appeal seemed to be accepting, that Morris may survive the 2003 Act as an independent head of admissibility. Certainly, the Court of Appeal did not analyse the matter in terms of the provisions of the 2003 Act.

Whilst the conduct in question may not be reprehensible per se (see the Criminal Justice Act 2003, s.112(1) (Archbold, 2010, § 13-8)) and indeed may not be directly applicable to the facts with which the defendant is charged, the inference that the jury will be asked to make from the evidence will be as to the defendant’s bad character.

The actual evidence relied on may include, for example, evidence of massive and lavish expenditure by the defendant on himself and on other persons. Whilst it could be argued that this might be thought to show the defendant to be of a generous disposition, the prosecution is likely to approach the evidence with a cynical view and suggest that it demonstrates a more sinister side.

On the basis that it is bad character evidence, then it can only be admitted as being evidence having to do with “the alleged facts of the offence with which the defendant is charged” (s.98 Archbold § 13-5)) or as falling within section 101 (§13-25).

It is submitted that evidence of lifestyle should be at least be considered under the section 101 gateways. Whilst 101 (d) may allow for the evidence to be adduced if it deemed as being relevant to a matter in issue, an argument could be mounted in future cases of lifestyle evidence that such relevance needs to be significantly enhanced given the prejudicial nature of it and the likelihood of raising collateral issues as to how the money was obtained and why it was spent in the way in a seemingly profligate way.

Should it become admissible, it is submitted that admissions of the fact of the possessions should be considered rather than by parading the wealth by photographs or films.

Nicholas Corsellis 3 Temple Gardens

Did you know?

45 per cent of all recorded robberies in England and Wales in 2006/07 occurred in London.