L & R v R.

A co-accused seeking to adduce another accused’s confession must satisfy the distinct admissibility conditions in section 76A of the Police and Criminal Evidence Act 1984. An asserted bad-character gateway cannot bypass those conditions. Conduct directly connected with the facts alleged in the charge is excluded from statutory bad-character evidence by section 98 of the Criminal Justice Act 2003.

Where a confession of substantial importance is admitted without the required determination of reliability, and the appellate court cannot safely make that assessment itself, the resulting conviction is unsafe. A connected co-accused’s conviction may also be unsafe where the confession materially bore upon the issues necessary to establish that offence.

The appellants, the parents of an infant, were tried at Southampton Crown Court. L was convicted of inflicting grievous bodily harm and assault occasioning actual bodily harm. R was convicted of cruelty to a person under 16 contrary to section 1(1) of the Children and Young Persons Act 1933.

The trial judge initially excluded L’s police interview from the prosecution case under section 78 of the Police and Criminal Evidence Act 1984. At R’s request, however, he later admitted L’s admission that he had squeezed the child, treating it as co-defendant bad-character evidence under section 101(1)(e) of the Criminal Justice Act 2003. No ruling was made on the statutory reliability condition for a co-accused’s use of a confession. The appeals concerned the legality and effect of that admission.

1. Both appeals were allowed and both convictions were quashed. L’s interview answers were plainly a confession within section 82 of the Police and Criminal Evidence Act 1984. When R sought to adduce that confession, section 76A applied. R therefore had to establish both that it was relevant to an issue and, on the balance of probabilities, that it had not been obtained through conduct likely in the circumstances to render it unreliable.

2. Section 101(1)(e) of the Criminal Justice Act 2003 did not provide a separate route which displaced section 76A. The squeezing admission concerned the alleged facts of the offence charged against L. By section 98 it was not bad-character evidence for the purposes of section 101. The trial judge should consequently have determined admissibility under section 76A.

3. No determination under either section 76 or section 76A had been made. The judge had not heard the evidence necessary to assess whether L’s vulnerabilities and the interview circumstances affected reliability. The Court of Appeal could not properly make that assessment in his place. The admission was a significant basis on which the jury could find that L had handled the child with at least reckless force. Its admission without the required statutory ruling therefore rendered L’s convictions unsafe.

4. R’s complaints about the directions and the bruising evidence would not independently have undermined her conviction. However, the disputed confession bore upon whether the injuries were non-accidental, whether L caused them, and whether R exposed the child to a risk of harm from him. Without it, there remained a prospect that the jury would not be sure of the necessary risk. R’s conviction was accordingly unsafe.

5. The respondent was given 14 days to make a written application for a retrial of either or both appellants.

• Court of Appeal (Criminal Division) — allowed both conviction appeals and quashed both convictions: [2011] EWCA Crim 649.
• Southampton Crown Court — L was convicted on 7 December 2009 and sentenced on 26 February 2010; R was convicted of child cruelty and received a suspended sentence. No citation for the Crown Court judgment is stated.