Johnson v R.

In a joint criminal trial, a relevant and voluntary earlier guilty plea or written basis of plea may be admitted at a co-accused’s request under Police & Criminal Act 1984, section 76A. The fact that the plea was later vacated does not itself make the evidence inadmissible. A trial judge may reconsider an earlier evidential ruling made under a misapprehension of the law, particularly where fairness between co-defendants requires it.

Evidence of an inconsistent account to a probation officer and bad-character evidence may properly be admitted where it is materially probative of an important issue between defendants. Explanatory evidence may also be admissible in a credibility case if its use remains fair. A minor error in a summing-up does not render convictions unsafe unless there is a real possibility that the jury was misled to the defendant’s prejudice.

The appellant was convicted at Kingston upon Thames Crown Court of being knowingly concerned in the fraudulent evasion of the prohibition on importing cocaine and cannabis. He received six years’ imprisonment for the cocaine offence and a concurrent year for the cannabis offence.

The parcel had been addressed to his co-accused, who collected it from a depot after the drugs had been removed by customs officers. Each defendant maintained that the other was responsible. Before trial, the appellant had entered, and later been permitted to vacate, a guilty plea on a written basis of plea.

On appeal against conviction, he challenged the admission of that earlier plea and basis, an inconsistent account given to a probation officer, bad-character and explanatory evidence, and a passage in the Recorder’s summing-up. The central issue was whether those rulings or the summing-up made the convictions unsafe.

1. Appeal dismissed. The trial was conducted fairly and in accordance with law. None of the grounds cast doubt on the safety of the convictions.

2. The written basis accompanying the earlier guilty plea was plainly a confession for section 76A purposes. It was relevant to the issue between the defendants. The Recorder found, on the balance of probabilities, that neither the plea nor its basis had been obtained by anything said or done likely to render it unreliable. The co-accused could therefore rely on it under section 76A(1).

3. The earlier vacation of the guilty plea did not entitle the appellant to a later trial free from the plea’s evidential consequences. Applying R v Myers [1998] A.C. 124, the court held that fairness between co-defendants required the relevant voluntary statement to be available to the co-accused. Once the correct law had been drawn to the Recorder’s attention, he was entitled to reconsider his initial ruling, which had proceeded on a misapprehension of law.

4. The probation officer’s account was materially inconsistent with the appellant’s trial evidence. Its admission under section 119 of the Criminal Justice Act 2003 did not create unfairness warranting exclusion.

5. The recent conviction for cocaine possession had substantial probative value on an important issue between the defendants under section 101(1)(e). The initial denial associated with that conviction, standing alone, would not have sufficiently demonstrated a propensity to be untruthful. The withdrawn assault allegation was admissible as explanatory evidence for the co-accused’s false account of her arrival at the depot, and did not undermine overall fairness.

6. The Recorder’s imprecise reference to what the co-accused’s solicitor had said created no real possibility of jury misunderstanding or prejudice to the appellant.

• Court of Appeal (Criminal Division): The appellant’s appeal against conviction was dismissed: [2007] EWCA Crim 1651.
• Crown Court at Kingston upon Thames: Before Recorder Parker and a jury, the appellant was convicted on 21 November 2006 of two drug-importation offences and sentenced on 12 January 2007.