Denham & Anor v R.

Under the Police and Criminal Evidence Act 1984, evidence of a co-conspirator’s conviction or guilty plea may be admitted in a conspiracy trial where the real issue is whether the defendant joined an existing agreement with the required intent. It must be excluded where admission would be unfair, including where it closes off an issue which the jury must decide. It is not unfair merely because the evidence makes the defence more difficult.

The admissibility decision requires a fact-sensitive assessment of fairness. Evidence of later communications and conduct may also be sufficient for a jury to infer an earlier intent, where the evidence is not wholly equivocal and includes practical arrangements or steps towards the proposed offence.

The appellants were tried at Bristol Crown Court before HHJ Lambert for conspiracies concerning the sexual abuse of a child, T. Denham was convicted of conspiracy to sexually assault a child under 13, as an alternative to conspiracy to rape a child. Stansfield was convicted of two conspiracies to rape T.

They appealed against conviction, principally challenging the admission of guilty pleas by alleged co-conspirators under the Police and Criminal Evidence Act 1984. Stansfield also challenged the sufficiency of the evidence of his intent on one count. Denham sought leave to appeal his extended sentence, contending that the allocation of the custodial terms between counts was excessive.

The court dismissed both appeals against conviction and refused Denham leave to appeal against sentence.

1. Sections 74 and 78 of the Police and Criminal Evidence Act 1984 required the judge to assess relevance and fairness, not mere forensic difficulty. The approach in Derek Nathan Smith [2007] EWCA Crim 2105 remained correct. Where it is not realistically disputed that others committed the conspiracy, and the live issue is whether the defendant joined it with the required intent, evidence of their guilty pleas will ordinarily be fair. It may nevertheless be unfair if it closes off a defence or an issue the jury must determine.
2. The trial judge correctly applied that approach. The guilty pleas did not prevent either appellant from advancing the case that he had not joined the relevant agreement, lacked the requisite intent, or was participating only in sexual fantasy. The verdicts also showed that the jury distinguished the intentions of the appellants from those of the co-conspirators who had pleaded guilty.
3. There was a case for Stansfield to answer on the February conspiracy. Later communications were capable of supporting an inference that he intended rape at the earlier date. Unlike Goddard and Fallick [2012] EWCA Crim 1756, the evidence was not confined to equivocal fantasy exchanges: it included discussion of time, place and practical details, and Stansfield’s journey to Luton. The totality of the evidence was capable of showing an intent beyond admitted masturbatory fantasy.
4. The overall extended sentence was neither wrong in principle nor manifestly excessive. The proposed restructuring of concurrent and consecutive sentences, designed to secure a more favourable release position, did not disclose an arguable sentencing error.

• Court of Appeal (Criminal Division): dismissed the appellants’ conviction appeals and refused Denham leave to appeal against sentence: [2016] EWCA Crim 1048.
• Crown Court sitting at Bristol: HHJ Lambert admitted evidence of co-conspirators’ guilty pleas, convicted Denham and Stansfield following jury trial, and sentenced Denham. The sentencing order was later varied to correct sentences exceeding the statutory maximum on two counts.