Vincent & Anor v R

Severance of a joint indictment is exceptional. It is properly refused where co-defendants advance opposing accounts of the same incriminating events and a fair determination requires the jury to hear each account tested in the same trial.

A co-defendant’s police interview is evidence only in that co-defendant’s case. The prosecution may pursue legitimate questions suggested by the interview or supported by other admissible evidence, but must not present the interview’s assertions as evidence against another defendant.

In a transitional murder case, the specified period under the Criminal Justice Act 2003 must reflect the pre-December 2002 Home Secretary practice. The later and higher starting points in Schedule 21 must not increase the period.

Vincent and Smith were convicted of the murder of King at the Crown Court at Luton. Attridge, tried with them, was acquitted of murder. Elfes was convicted of assisting an offender.

Vincent and Smith sought leave to appeal against conviction. They challenged the refusal of severance, the use and directions concerning Attridge’s police interviews, and aspects of the summing up. Smith also challenged the exclusion of further material about Attridge’s alleged drug dealing. Both defendants appealed their specified periods of imprisonment for life.

The central issues were whether the joint trial and conduct of the evidence rendered the convictions unsafe, and whether the specified periods complied with the transitional sentencing regime.

1. The court refused the applications for leave to appeal against conviction, having treated them as substantive appeals. The convictions were safe.

2. The refusal of severance was correct. Joint trial is the ordinary course, and the trial judge’s discretion is disturbed only for error of principle or a decision outside the proper range. Smith and Vincent attributed their admitted conduct to Attridge, while Attridge attributed his conduct to Vincent. Their accounts were effectively mirror-image defences. A joint trial enabled each account and allegation to be tested before the same jury.

3. Attridge’s interviews were not evidence against Vincent or Smith. The court reaffirmed that this rule must govern the conduct of the whole trial. Questions to another defendant may nevertheless be proper where they concern admissible evidence, the relationship between defendants, or matters which may become relevant if the interviewee gives evidence. The prosecution’s questioning and closing submissions were directed to the case against Attridge or had an independent evidential basis. One question to Vincent would have been better framed without referring to Attridge’s interviews, but it did not make the conviction unsafe. The present cross-examination was materially unlike that considered in R v Clarke and Hewins.

4. The court held that evidence of an accused’s own belief about a drug dispute was not bad-character evidence and was admissible under section 98 of the Criminal Justice Act 2003. Actual drug dealing by Attridge could potentially have been admissible under section 101(1)(e) if it had substantial probative value on an issue between co-defendants. Police belief or suspicion was irrelevant unless soundly based in fact. No admissible undisclosed material existed, so this ground could not affect the safety of Smith’s conviction.

5. The summing up and the judge’s isolated courtroom remark did not create any real doubt about the verdicts. The jury received clear and repeated directions to consider Attridge’s interviews only in Attridge’s case.

6. The sentence appeals succeeded. Paragraph 10(a) of Schedule 22 to the Criminal Justice Act 2003 required the court to apply the likely pre-December 2002 Home Secretary practice, for which the Lord Woolf CJ Practice Statement was the appropriate guide: R v Sullivan [2004] EWCA Crim 1762; [2005] 1 Cr App Rep 1. The trial judge had likely been influenced by the higher later starting points in Schedule 21. The specified periods were reduced to 25 years for Vincent and 22 years for Smith, in each case less 386 days.

• Court of Appeal (Criminal Division) — In [2007] EWCA Crim 3, the court refused leave to appeal against conviction after treating the applications as substantive appeals. It allowed both sentence appeals and substituted lower specified periods.
• Crown Court at Luton — Vincent and Smith were convicted of murder and sentenced to life imprisonment. The trial judge fixed specified periods of 30 years for Vincent and 25 years for Smith.