Downer, R. v

A plea of guilty by an absent co-defendant is evidence under section 74 that the co-defendant committed the offence to which the plea relates. Where aggravated burglary is charged, the underlying form of burglary under section 9 matters. A plea to aggravated burglary based on possession of weapons after entry does not prove a charge alleging entry with weapons.

The particulars of the indictment are admissible under section 75 to identify the facts on which the conviction was based. Evidence of a co-defendant’s plea should be admitted sparingly and excluded under section 78 where its limited probative value is outweighed by an unfair and untestable prejudicial effect on the remaining defendant’s trial.

The appellant was convicted at the Crown Court at Croydon of aggravated burglary and sentenced to detention in a young offender institution. His two co-defendants had pleaded guilty to aggravated burglary on the original indictment, which alleged burglary by attempting theft after entry.

Before the appellant’s trial, the prosecution amended the indictment. It instead alleged entry as a trespasser with intent to steal while armed, said to be a joint enterprise. The prosecution obtained admission of the co-defendants’ guilty pleas, but not of their written bases of plea.

On appeal, the central issues were whether those pleas had probative value, whether their admission was unfair under Police and Criminal Evidence Act 1984, section 78, and whether the judge’s summing up wrongly treated the pleas as pleas to the very offence charged against the appellant.

1. Appeal allowed. The conviction was unsafe. The court quashed it and directed a retrial.

2. Section 10(1) of the Theft Act 1968 creates aggravated burglary by reference to burglary under section 9. Section 9(1)(a) and section 9(1)(b) describe distinct forms of burglary. The original indictment, to which the co-defendants pleaded guilty, alleged weapons possessed during an attempted theft after entry. The amended count against the appellant alleged entry while armed and intending to steal. They were therefore not the same offence for the evidential purpose advanced by the prosecution.

3. Under section 74 of the Police and Criminal Evidence Act 1984, a co-defendant’s conviction was evidence that the co-defendant committed the offence admitted. Under section 75, the particulars of the relevant indictment were admissible to identify the facts on which that conviction rested. If the pleas were admitted, the jury needed to know those particulars; the unaccepted bases of plea did not answer that question.

4. The pleas had little, if any, probative value on the live issue: whether the appellant entered with the weapons, personally or in a joint enterprise. They carried a substantial risk that the jury would infer that all three defendants had entered armed. Following the approach explained in R v Smith [2007] EWCA Crim 2105 and the earlier authorities, such evidence must be assessed carefully where an absent co-defendant’s plea may close off issues the jury must decide. The pleas should have been excluded under section 78 because their admission adversely affected the fairness of the proceedings.

5. The summing up made the error decisive. The judge repeatedly described the co-defendants as having pleaded guilty to the very aggravated burglary charged against the appellant and gave directions which blurred the difference between entering armed and later taking up weapons inside. That could readily have led the jury to conclude that the appellant knew of the weapons on entry.

The court also observed, without deciding the point, that where a co-defendant’s unaccepted basis of plea departs from the indictment particulars, the co-defendant would ordinarily need to be called if that departure were to be established against another defendant.

• Court of Appeal (Criminal Division): allowed the appeal against conviction, quashed the conviction and ordered a retrial: [2009] EWCA Crim 1361.
• Crown Court at Croydon: on 24 September 2008, convicted the appellant of aggravated burglary and sentenced him to five years’ detention in a young offender institution, less time on remand.