Smith, R. v

A co-accused’s guilty plea is admissible under section 74 of the Police and Criminal Evidence Act 1984 as evidence that the co-accused committed the offence. It is not merely evidence that the plea was entered. However, such evidence requires careful scrutiny and may be excluded under section 78 where it is untestable and is likely unfairly to determine a live issue against the remaining defendant.

The Criminal Justice Act 2003 did not displace that approach. A plea may be admissible in principle as hearsay, but it must still be in the interests of justice to admit it. A court must identify the real issues for the jury and balance the evidence’s probative need against its prejudicial effect.

The appellant was convicted of robbery and of producing a firearm or imitation firearm with intent to commit the robbery. His co-accused, Zoe Taylor, had pleaded guilty to both offences before his trial.

The appellant accepted that Taylor had taken money from the complainant, but contended that there had been a theft rather than a robbery, that he had not participated in it, and that there had been no gun. The trial judge admitted Taylor’s guilty pleas under section 74 of the Police and Criminal Evidence Act 1984 and, alternatively, as hearsay under section 114(1)(d) of the Criminal Justice Act 2003.

The appeal concerned whether those pleas were admissible and, if so, whether their admission was fair and in the interests of justice.

1. Appeal allowed. The convictions were quashed because the co-accused’s guilty pleas were wrongly admitted. A retrial was ordered.

2. Section 74 of the Police and Criminal Evidence Act 1984 made Taylor’s convictions admissible, in principle, as evidence that she committed the offences. The evidence was not confined to the fact that she had admitted them. The appellant’s argument that the pleas were governed by the non-defendant bad-character provisions failed. Under section 98 of the Criminal Justice Act 2003, the relevant misconduct was excluded from bad character because it directly concerned the alleged facts of the charged offences; the conviction was evidence of that misconduct, not bad character itself.

3. The legal admissibility of a co-accused’s conviction did not resolve the fairness question under section 78. The line of authority beginning with R v O’Connor [1987] 85 Cr App R 98, helpfully distilled in R v Kempster [1990] 90 Cr App R 14, remained relevant after the 2003 Act. Such evidence should be sparingly admitted because an absent co-accused’s plea may carry great and untestable weight. It may be fair where commission of the offence is effectively undisputed and participation by the remaining defendant is the live issue. It may be unfair where it closes off issues for the jury.

4. Here, whether the taking was robbery rather than theft, and whether a gun had been used, were central disputed issues. Taylor’s pleas were likely to tell the jury that both propositions were true and thus to determine much of the case against the appellant. There was no real need to admit the pleas: the theft was accepted and the jury could have been told neutrally that Taylor had already appeared in court. The judge proceeded on the false basis that the pleas proved only admissions, and did not properly balance their unfair effect against any countervailing value.

5. Although section 114(1)(d) of the Criminal Justice Act 2003 was in principle wide enough to admit a co-defendant’s guilty plea as hearsay, admission was not in the interests of justice for the same reasons. The defence could not realistically correct the position by giving evidence about Taylor’s motives, and the promised strict warning was not given.

6. The court also indicated that the separate admission of the appellant’s previous convictions for bad character was not open to appellate criticism. The position differed from R v Michael Murphy [2006] EWCA Crim 3408. For a future trial, however, the trial judge would have to decide the issue afresh. A fresh indictment was directed within two months, with arraignment within two months unless the court ordered otherwise. The appellant was refused bail.

• Court of Appeal (Criminal Division) Allowed the appeal, quashed the convictions, and ordered a retrial.
• Crown Court Convicted the appellant of robbery and producing a firearm or imitation firearm with intent to commit that robbery. The court and citation are not stated in the judgment.