Tee, R. v

Under the Police and Criminal Evidence Act 1984, the discretion to exclude a co-accused’s conviction requires an assessment of the fairness of the proceedings as a whole. It is not confined to prejudice to the accused. A judge may revisit admissibility where subsequent evidence risks giving the jury a misleading account.

A co-accused’s guilty plea in a joint-enterprise case which is not conspiracy does not necessarily establish another accused’s guilt. The jury must decide each accused’s dishonesty and the other ingredients separately. Clear directions to that effect may avoid unfair prejudice. In sentencing repeated attempted frauds, the total sentence must reflect totality.

The appellant, a financial adviser, pleaded guilty to benefit and mortgage frauds. He was also convicted at Southampton Crown Court of fourteen counts of attempting to evade liabilities by deception. The prosecution alleged that he operated a dishonest debt-management scheme by causing clients’ creditors to pursue them at an address which was not their true residential address.

At trial, evidence that Sheila Madan, a client jointly charged on five counts, had pleaded guilty was initially excluded. After the appellant’s evidence portrayed his business and clients as legitimate, the judge admitted the pleas under sections 74 and 78 of the Police and Criminal Evidence Act 1984. The appellant challenged that ruling and his five-year sentence.

Conviction appeal

1. The appeal against conviction was dismissed. The judge lawfully admitted evidence of Madan’s guilty pleas. Although section 74 provided the evidential gateway, the section 78 inquiry concerned the fairness of the proceedings as a whole. Following R v Stewart [1999] Crim LR 746, that assessment included fairness to the prosecution and the interests of justice.
2. The appellant’s evidence and the earlier questioning about unprosecuted clients could give the jury a misleading impression that his long-running business had attracted no suggestion of dishonesty. It was open to the judge to conclude that Madan’s admitted participation in criminal conduct was needed to correct that impression. The judge was best placed to assess the impression made at trial and was entitled to find that the resulting prejudice did not require exclusion.
3. The charges were not conspiracy counts. Madan’s guilty pleas did not legally require the conclusion that the appellant was guilty. The jury still had to decide separately whether each ingredient, especially the appellant’s dishonesty, was proved against him. The summing-up accurately required separate verdicts and separate consideration of the evidence against the appellant.

Sentence appeal

1. The appeal against sentence was allowed. There was no unjustified disparity between the appellant’s immediate sentence for the benefit and mortgage frauds and Madan’s suspended sentence. The appellant’s criminality, including the convictions reached by the jury, was relevant to the comparison.
2. The guideline range of two to four years for the fourteen attempted frauds was relevant, but the four-year concurrent terms were too high. The judge had not sentenced for uncharged conduct; his observations supplied context only. The offending fell towards the lower end of the range, and totality required reduction.
3. The court substituted concurrent terms of three years on the fourteen attempt counts. The consecutive one-year terms for the benefit and mortgage frauds remained. The total sentence was therefore reduced from five years to four years’ imprisonment.

• Court of Appeal (Criminal Division) The appeal against conviction was dismissed. The appeal against sentence was allowed, and the total sentence was reduced to four years’ imprisonment: [2011] EWCA Crim 462.
• Southampton Crown Court The appellant pleaded guilty to three fraud-related counts, was convicted by a jury of fourteen attempt counts, and received a total sentence of five years’ imprisonment.