McEwan, R. v

A defendant who has pleaded guilty is no longer a person charged for the purpose of section 53 of the Youth Justice and Criminal Evidence Act 1999, unless the plea is set aside. The witness is therefore competent to give evidence for the prosecution, even if later evidence minimises his own participation or the basis of plea is disputed.

Under section 78 of the Police and Criminal Evidence Act 1984, an accomplice's inconsistency about his own role does not necessarily make evidence identifying another defendant unfair. Where the identification is consistent and capable of assessment by the jury, the trial judge may admit it within the proper margin of discretion.

The appellant appealed against his conviction following a trial before His Honour Judge Anthony at Lewes Crown Court. The prosecution case depended on Reilly, who had pleaded guilty to an offence arising from the attack and later identified the appellant as a participant.

An earlier trial had been discharged after a challenge to Reilly's competence as a prosecution witness. At the second trial, the appellant sought to exclude Reilly's evidence, principally on competence and fairness grounds. He also challenged the admission of bad-character evidence, the rejection of a submission of no case to answer, and the summing-up.

The central issue was whether Reilly's evidence could properly be admitted and left to the jury, and whether the resulting conviction was safe.

1. Appeal dismissed. The conviction was safe when the evidence was assessed as a whole.

2. Section 53(4) of the Youth Justice and Criminal Evidence Act 1999 prevents a person who remains charged from giving prosecution evidence. Section 53(5), however, excludes a person who is no longer liable to conviction in the proceedings. A guilty plea therefore made Reilly competent to give evidence. His later attempt to minimise his participation, and any dispute about the basis of plea, did not alter that position. He would remain bound by the plea unless and until it was set aside.

3. The judge had applied the correct approach under section 78 of the Police and Criminal Evidence Act 1984. Although another judge might have excluded Reilly's evidence because of his account of his own involvement and the possible sentencing incentive, the trial judge's decision fell within the permissible margin of discretion. Reilly had consistently placed himself at the scene and, once he named the appellant, consistently identified the appellant as present and involved. The jury could properly assess whether to accept those parts of his evidence.

4. The bad-character ruling was justified. The case was not weak if the jury accepted Reilly's evidence. The judge was also entitled to reject the submission of no case to answer. Reilly's evidence alone would have caused serious difficulty, but it was supported by evidence of association, the appellant's false original alibi, and his untruthfulness in interview.

5. The summing-up fairly and carefully directed the jury on Reilly's credibility, the previous convictions, and propensity. The verdicts showed a careful assessment of the evidence, and no ground rendered the conviction unsafe.

• Court of Appeal (Criminal Division) Dismissed the appeal and held the conviction safe.
• Crown Court at Lewes His Honour Judge Anthony tried and convicted the appellant in January 2010.
• Earlier Crown Court trial The jury was discharged after a challenge to Reilly's competence under section 98(1) of the Criminal Evidence Act 1898.