Girma & Ors, R. v (Rev 1)

A co-defendant’s guilty plea is admissible under section 74 only where the fact of that conviction is relevant to an issue the jury must decide. A plea to a particularised count proves no more than the acts actually admitted. It cannot prove another defendant’s state of mind. Wrongful admission does not itself make a conviction unsafe. The appellate court must assess the independent evidence, the directions and the real risk of prejudice.

In terrorism sentencing, the statutory maximum remains reserved for the worst offending. Consecutive sentences require distinct additional criminality. Where failure to disclose information adds nothing to assisting an offender, the sentences should ordinarily be concurrent.

Following a lengthy trial at the Central Criminal Court before HH Judge Worsley QC, Yeshiembert Girma, Esayas Girma and Mulumebet Girma were convicted of assisting Hussein Osman after the failed 21 July 2005 bombings and of terrorism-information offences. Mohammed Kabashi had pleaded guilty to assisting Osman and to a terrorism-information offence on a limited basis.

At the trial of the remaining defendants, the prosecution was permitted to adduce Kabashi’s guilty plea. The principal issue on the conviction appeals was whether that plea was admissible and, if not, whether its admission made the convictions unsafe. The court also considered the peripheral admission of convictions from the earlier Kingston trial and appeals against sentence by all four appellants.

1. The conviction appeals were dismissed. Kabashi’s plea to assisting an offender should not have been admitted. Section 74 of the Police and Criminal Evidence Act 1984 is an evidential mechanism only. A conviction may be adduced only where the fact that the other person committed the offence is relevant to an issue in the proceedings. The real issue was the appellants’ knowledge, belief and intention, not whether they performed acts capable of amounting to assistance. Kabashi’s plea could not assist on those matters and did not admit conduct involving Yeshi or Esayas.

2. The court nevertheless held that the convictions were safe. The jury had been directed that Kabashi’s plea was not evidence of the appellants’ intentions. There was powerful independent, chronological evidence of each appellant’s involvement after the failed bombing. The acquittals of the defendants living with Kabashi also showed that the jury had separately assessed each defendant’s state of mind. Although the admission decision was made prematurely, as contemplated in Smith [2007] EWCA Crim 2105, it did not cause unfairness capable of affecting the verdicts.

3. The Kingston convictions were peripheral. Even if their admission had been irrelevant absent agreement, it could not conceivably have prejudiced these appellants or affected the safety of their convictions.

4. The sentence appeals were allowed in part. Applying the principles in Sherif and others [2008] EWCA Crim. 2653, the court held that the maximum penalty may be justified by the gravity of the terrorist activity and the importance of the undisclosed information. But a failure-to-disclose count which adds no criminality to assisting an offender should run concurrently with it.

5. Yeshi’s sentence became 11 years and 9 months: six years and nine months on count 2 concurrent with five years on count 3, both consecutive to five years on count 1. Esayas’s total was reduced to five years, and Mulu’s to five years. Kabashi was sentenced, consistently with his basis of plea and an appropriate guilty-plea reduction, to four years’ imprisonment on each count concurrent.

• Court of Appeal (Criminal Division): In [2009] EWCA Crim 912, dismissed the appeals against conviction and allowed the sentence appeals to the extent of varying the sentences.
• Central Criminal Court: HH Judge Worsley QC convicted Yeshiembert Girma, Esayas Girma and Mulumebet Girma after trial, and sentenced them. Kabashi pleaded guilty and was sentenced. No citation for the decisions below is stated in the judgment.