O'Brien, R v

A co-accused’s conviction may be admitted under section 74 of the Police and Criminal Evidence Act 1984 where it is relevant to an issue. The provision should be used sparingly because an absent co-accused’s plea may carry substantial but untestable weight.

Under section 78, the decisive question is whether admitting the plea would unfairly remove the real issue for the jury or deprive the defendant of a viable defence. A plea by one alleged participant does not necessarily establish the guilt of all others. Where the defendant can still contend that he did not know of, or participate in, the robbery, admission may remain fair.

The appellant was convicted of robbery at Blackfriars Crown Court on 5 October 2015. A co-accused, Brown, had pleaded guilty before the appellant’s trial.

The prosecution successfully applied to adduce Brown’s guilty plea under sections 74 and 78 of the Police and Criminal Evidence Act 1984. The appellant maintained that he had sought compensation for a wet hoodie, was unaware of threats made by others, and did not participate in a robbery.

On appeal, the central issue was whether admitting Brown’s plea had unfairly closed off the issue the jury had to determine.

1. Appeal dismissed. Brown’s guilty plea was relevant and admissible under section 74 of the Police and Criminal Evidence Act 1984. It was capable of proving that Brown committed a robbery and was relevant to the issue whether a robbery had occurred.

2. The court applied the approach in R v Nathan Smith [2007] EWCA Crim 2105. Evidence of an absent co-accused’s guilty plea requires particular caution because it cannot properly be tested in the remaining defendant’s trial. The court must identify the issue to which the plea is relevant and decide whether its admission would have a disproportionate and unfair effect by closing off all or much of the live issues.

3. On these facts, Brown’s plea did not compel the conclusion that the appellant was guilty. There were as many as four alleged participants. Threats or words may have been used without all participants hearing them. The appellant retained a defence that he believed the payments were compensation and that he neither knew of nor joined any robbery. Although the court members would not themselves have admitted the plea, it was open to the trial judge to do so and he had not erred.

4. In any event, the conviction was safe. CCTV evidence, the appellant’s admitted violence, and the withdrawals and attempted withdrawals from the victim’s account overwhelmingly undermined his account. The court doubted that the jury had placed substantial reliance on Brown’s plea.

• Court of Appeal (Criminal Division) — the appeal against conviction was dismissed in [2016] EWCA Crim 678.
• Blackfriars Crown Court — the appellant was convicted of robbery on 5 October 2015 after the trial judge admitted a co-accused’s guilty plea under the Police and Criminal Evidence Act 1984.