Sliogeris v R

A co-accused’s out-of-court confession may be admitted under section 114(1)(d) of the Criminal Justice Act 2003 where admission is in the interests of justice. The trial judge must personally consider the statutory factors, including the reliability of the maker and of the evidence that the statement was made. The judge need not make a final finding of reliability, but must be satisfied that a jury could properly regard the evidence as reliable.

An accusation against another defendant is not a confession for section 76A of the Police and Criminal Evidence Act 1984 merely because it was made with an admission by its maker. It must form part of, or be inextricably linked with, the adverse admission.

The appellant was convicted at the Crown Court at Norwich of murder and acts tending and intended to pervert the course of justice. He received a life sentence for murder with a minimum term of 210 months.

At trial, a co-defendant sought to rely on a landlord’s evidence that another co-defendant, Pocius, had said that he had seen the appellant beat the deceased to death. The trial judge admitted the alleged statement under section 76A of the Police and Criminal Evidence Act 1984 and, alternatively, section 114(1)(d) of the Criminal Justice Act 2003. The appellant appealed, contending that the statement was neither a confession nor hearsay which the interests of justice permitted to be admitted.

1. Appeal dismissed. The alleged statement identifying the appellant as the attacker was not admissible under section 76A of the Police and Criminal Evidence Act 1984. Pocius’s admission that he was present during the attack was potentially adverse to him and therefore a partial confession. However, his separate allegation that the appellant committed the offence was exculpatory. It was logically distinct from the admission of presence and was not so inextricably connected with it as to be part of the confession.

2. The statement was nevertheless capable in principle of admission under section 114(1)(d) of the Criminal Justice Act 2003. R v Y [2008] 1 WLR 1683 established that the provision may apply to a co-defendant’s confession. The identity of the applicant matters to the interests-of-justice assessment, and such evidence is not to be admitted routinely.

3. A trial judge must address the factors in section 114(2), including the reliability of the statement’s maker and the reliability of the evidence that it was made. The judge cannot leave those matters entirely to the jury. The judge had erred by identifying Mikolaitis, rather than Pocius, as the maker and by expressing reliability as a jury question. Yet his reasons showed that he regarded the evidence as capable of belief: the alleged statement was voluntary, made soon after the killing to a friend rather than an authority, and there was an explanation for the witness’s equivocation.

4. The admission decision was therefore within the range properly open to the judge. The evidence was potentially important to the applying co-defendant’s case, and the appellant had been able to challenge it. Once admitted under section 114, it was evidence in the case generally. The judge’s careful directions on reliability and weight were unchallenged.

• Court of Appeal (Criminal Division): dismissed the appellant’s conviction appeal: [2015] EWCA Crim 22.

• Crown Court at Norwich: convicted the appellant of murder and doing acts tending and intended to pervert the course of justice. He was sentenced to life imprisonment for murder, with a minimum term specified under section 269(2) of the Criminal Justice Act 2003.