Finch, R v

Section 76A of the Police and Criminal Evidence Act 1984 applies only where the maker of a confession remains a person charged as a co-accused in the trial then before the jury. A defendant who has pleaded guilty is no longer such a person in the remaining defendant’s trial and is a compellable witness.

Under section 114(1)(d) of the Criminal Justice Act 2003, a reluctant witness’s untested out-of-court account is not automatically admissible. The interests-of-justice assessment must give particular weight to the availability of oral evidence, the ability to test it, its reliability, and prejudice to the opposing party.

The appellant was convicted of possessing a prohibited firearm and ammunition. His co-accused, Richer, had pleaded guilty before the appellant’s trial. In police interviews Richer had asserted that the appellant did not know that a gun was in the car.

The trial judge refused to admit the interviews under section 76A of the Police and Criminal Evidence Act 1984, holding that Richer was no longer a co-accused tried with the appellant. The judge also refused admission as hearsay under section 114(1)(d) of the Criminal Justice Act 2003, principally because Richer was available to give oral evidence. The appellant appealed against conviction.

1. Appeal dismissed. The court upheld both evidential rulings and the conviction.
2. Section 76A of the Police and Criminal Evidence Act 1984 did not apply. Although the court assumed that the relevant parts of Richer’s interviews could be described as a confession, section 76A concerns a confession tendered by one person charged in the same proceedings for another co-accused. Once Richer pleaded guilty, the proceedings in progress were the appellant’s trial. Richer was no longer a person charged or accused in those proceedings.
3. This construction was consistent with the established rule that a defendant who has pleaded guilty is a compellable witness for a remaining defendant. The court relied on R v Boal [1965] 1 QB 402 and R v Conti (1974) 58 Cr.App.R 387. It also accorded with the purpose of section 76A: to address the evidential obstacle in a joint trial, where one defendant cannot call the other. That obstacle disappears after a guilty plea.
4. The judge was entitled to refuse hearsay admission under section 114(1)(d) of the Criminal Justice Act 2003. He considered the factors in section 114(2), including the account’s potential importance and probative value. Richer could nevertheless be called and compelled to give oral evidence. His unwillingness to support his account on oath undermined its reliability and would have deprived the Crown of a proper opportunity to challenge it.
5. An appellate court may interfere with that evaluative decision only if the judge applied wrong principles or reached a conclusion outside the legitimate range. Neither occurred. The possible risk in calling a reluctant witness did not make the admission of untested hearsay necessary in the interests of justice.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction: [2007] EWCA Crim 36.
• Trial court (not identified) — convicted the appellant after refusing to admit the co-accused’s police interviews under section 76A of the Police and Criminal Evidence Act 1984 and section 114(1)(d) of the Criminal Justice Act 2003.