Nazir, R v

A co-accused’s police interview may be admitted under section 76A of the Police and Criminal Evidence Act 1984 where it is relevant to another defendant’s case. A statement which inculpates its maker while exculpating a co-accused can remain a confession. The jury must be able to assess the whole relevant interview, rather than isolated parts of it.

A pre-commencement witness-anonymity order does not make a conviction unsafe where the statutory conditions for such an order were met and anonymity did not deprive the defendant of a fair trial. Mere presence at a murder is insufficient for joint liability. Presence can found liability only where it was intended to, and did, encourage the offence.

The appellant was convicted at the Central Criminal Court of the murder of his sister. The prosecution alleged that he had participated in a joint enterprise with the co-defendant, who admitted stabbing the deceased but asserted that he had acted alone.

The appellant appealed on three grounds. He contended that the jury had been wrongly prevented from considering the co-defendant’s police interviews; that a key witness should not have been permitted to testify anonymously, or had been the subject of an inadequate jury direction; and that the direction on joint venture was defective.

The central issues were whether the errors alleged rendered the conviction unsafe and whether the statutory conditions for the anonymity order were satisfied.

1. Appeal dismissed. Although the jury had been wrongly directed that it could not consider the co-defendant’s police interviews in deciding the appellant’s case, the conviction was not unsafe.

2. Section 76A of the Police and Criminal Evidence Act 1984 had put the relevant common-law rule on a statutory footing. A co-accused’s statement may be a confession even though it is partly exculpatory of another defendant. If the appellant had relied on the provision, the jury should have received the whole interview, not merely a summary or selected admissions, so that it could assess the proper weight of the material.

3. That error could not realistically have affected the verdict. The co-defendant’s assertions that he acted alone were undermined by repeated lies in the interview and by material that supported the prosecution case that the appellant had a motive and had been involved. The remaining evidence against the appellant was strong.

4. Under section 11 of the Criminal Evidence (Witness Anonymity) Act 2008, the anonymity order could have been made had the Act then been in force. The witness was important and would not have testified without anonymity. Her fear was genuine and objectively justified. The order was consistent with a fair trial because her evidence could be tested, there was no proper basis to suggest dishonesty or bias, and it was not the sole or decisive evidence implicating the appellant.

5. The jury direction adequately identified both that anonymity must not count against the appellant and that it disadvantaged his ability to challenge the witness’s credibility.

6. The joint-venture direction correctly stated that mere passive presence is not criminal. The appellant could be guilty only if he intended by his presence to encourage, and did encourage, the murder. No further definition of the ordinary English word “encouragement” was required.

• Court of Appeal (Criminal Division): appeal against conviction dismissed.
• Central Criminal Court: the appellant was convicted of murder before His Honour Judge Moss QC and a jury on 16 June 2006.