Rehman, R. v

Evidence of a co-accused’s conviction may properly be admitted under section 74 where the defence has put the co-accused’s knowledge or state of mind in issue and the conviction is relevant to that issue. The question under section 78 is not whether the evidence harms the defence, but whether its admission would have such an adverse effect on fairness that it ought to be excluded. A careful direction may prevent unfair prejudice where the jury is told that the co-accused’s conviction is neither conclusive nor determinative of the defendant’s guilt.

Sentencing parity requires a justified basis for imposing a greater sentence on one co-offender than another. Where no sufficient basis is given, and personal mitigation favours the defendant, a higher sentence may create a perceived injustice.

The appellant was convicted at Peterborough Crown Court, following a retrial, of possessing explosives contrary to section 4 of the Explosive Substances Act 1883. He received two years and eight months’ imprisonment. The retrial followed a jury’s failure to agree at the first trial, at which David Crosby, who supplied the canister containing explosive powder, was convicted and later sentenced to two years’ imprisonment.

The prosecution adduced Crosby’s conviction under section 74 of the Police and Criminal Evidence Act 1984. The appellant challenged its admission under section 78, after the defence had relied on evidence bearing on Crosby’s knowledge of the powder. He also appealed his longer sentence, contending that there was no proper basis to distinguish his culpability from Crosby’s.

1. The appeal against conviction was dismissed. The conviction was not unsafe. The appellant accepted that Crosby’s conviction was relevant and admissible under section 74 of the Police and Criminal Evidence Act 1984. The sole question was whether the judge should nevertheless have excluded it under section 78.

2. The trial judge acted within the proper ambit of the section 78 discretion. The defence had proposed to use Mark Crosby’s evidence to invite the jury to conclude that David Crosby did not know the powder was dangerous and therefore could not have conveyed its dangerous nature to the appellant. In those unusual circumstances, Crosby’s conviction was relevant evidence of his state of mind when handing over the canister.

3. Evidence adverse to the defence is not thereby unfairly prejudicial. The judge was entitled to conclude that the jury might instead have been misled if they heard the proposed defence use of Mark Crosby’s evidence without knowing of David Crosby’s conviction. A careful direction confined the use of the conviction to evidence relevant to what, if anything, Crosby communicated to the appellant. It also made clear that the conviction did not determine the appellant’s guilt.

4. The appeal against sentence was allowed. Although a court may in some cases properly differentiate between a supplier and recipient of explosives, the judge gave no adequate reason for treating the appellant as more culpable than Crosby. The appellant also had substantial personal mitigation. The sentence of two years and eight months’ imprisonment was quashed and replaced with two years’ imprisonment. Time on remand continued to count towards sentence.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction and allowed the appeal against sentence, substituting two years’ imprisonment.

• Crown Court at Peterborough: following a retrial, convicted the appellant on 1 July 2009 of an offence under section 4 of the Explosive Substances Act 1883 and imposed two years and eight months’ imprisonment.