Daniels & Ors, R v

Evidence from a co-defendant who has entered a Serious Organised Crime and Police Act 2005 agreement is not inadmissible merely because the witness hopes to obtain, or retain, a sentencing benefit. The agreement, the witness’s self-interest, and any failure to give a full or truthful account usually concern credibility. They should ordinarily be addressed by cross-examination and clear jury directions, rather than by a stay or exclusion under section 78 of the Police and Criminal Evidence Act 1984.

A prosecutor may call a witness whose evidence on material matters is capable of belief although the witness may be unreliable about his own criminality. Legal professional privilege is fundamental. General co-operation terms should not readily be construed as requiring its waiver; but speculative privileged material, particularly where no disclosure application was made, will not make the trial unfair.

The appellants were tried at Bradford Crown Court for murder and conspiracy to rob following the death of Edward Simpson during a planned robbery. At an earlier trial, the jury had failed to reach verdicts in respect of Davies, Neale and Martin. Daniels was tried later after being implicated by Sonny Stewart.

Stewart had pleaded guilty to manslaughter and conspiracy to rob under a Serious Organised Crime and Police Act 2005 agreement and gave evidence for the Crown. Davies and Martin were convicted of murder and conspiracy to rob. Daniels and Neale were convicted of conspiracy to rob. Davies also appealed his 35-year minimum term for murder.

The central question was whether reliance on Stewart’s evidence was an abuse of process or rendered the proceedings unfair so that it should have been excluded under section 78 of the Police and Criminal Evidence Act 1984, including because privileged material held by Stewart’s solicitors had not been disclosed.

1. All conviction appeals and Davies’s sentence appeal were dismissed. Stewart’s evidence was properly admitted. A co-defendant’s Serious Organised Crime and Police Act 2005 agreement does not in principle bar the admission of his evidence. The incentive to secure a reduced sentence, and the pressure to maintain an account so as to retain that benefit, are recognised dangers bearing on credibility. The ordinary safeguard is a proper warning to the jury, not exclusion of evidence that is central to the prosecution case.

2. The Crown’s acceptance of Stewart’s manslaughter plea was pragmatic and its legal basis was difficult to identify. It may have allowed Stewart to receive a markedly favourable outcome. That possibility was inherent in the statutory regime and reinforced the need for careful jury directions, but it did not make the prosecution’s reliance on him abusive or unfair.

3. Applying R v Cairns [2003] 1 Cr App R 38, the Crown was entitled to call Stewart if it considered core parts of his evidence against the appellants capable of belief, even if it considered him untruthful about the extent of his own involvement. A failure to fulfil his agreement exposed Stewart to the loss of its benefit and to credibility challenges. It did not require exclusion.

4. There was no evidence that police pressure or inducement caused Stewart to implicate Daniels late or to add to his account concerning Davies. The circumstances, including unrecorded conversations and changes in his account, were before the jury. They were matters for assessment at trial rather than grounds for excluding his evidence under section 78.

5. The court held that the prosecution had not failed in any investigation or disclosure duty by not seeking privileged material from Stewart’s solicitors on its own initiative. No relevant application had been pursued, the suggested value of the material was speculative, and the jury already had a full basis on which to assess Stewart’s reliability. The court left open whether a prosecutor may lawfully require an express waiver of privilege in a SOCPA agreement. It observed that general obligations of complete co-operation should be read cautiously and that any waiver requirement should be expressed clearly and specifically.

6. The minimum term of 35 years was open to the sentencing judge. He had properly assessed Davies’s organising role, aggravating features, culpability and the outstanding part of an existing sentence. The term was not manifestly excessive.

• Court of Appeal (Criminal Division): Dismissed all conviction appeals and dismissed Davies’s appeal against his minimum term: [2010] EWCA Crim 2740.
• Crown Court at Bradford: At the second trial, Davies and Martin were convicted of murder and conspiracy to rob; Daniels and Neale were convicted of conspiracy to rob. Davies received a life sentence with a 35-year minimum term.