Varley, R. v

A co-accused’s guilty plea may fairly be admitted under Police and Criminal Evidence Act 1984 where it is used only to establish that an offence occurred, that fact is not a real issue, and the jury is clearly directed that the plea proves nothing about the defendant’s participation.

In a pending appeal affected by the correction of the law of secondary liability, relief requires substantial injustice. The principal inquiry is whether a correct direction would realistically have made a difference. Conditional intention to assist or encourage serious violence may be inferred from participation in a joint criminal venture.

The appellant was convicted at Leeds Crown Court of two robberies and murder. His co-accused had pleaded guilty to all three offences. The appellant challenged the admission at his trial of the co-accused’s guilty plea to the first robbery.

He also sought to rely on the correction of the law of secondary liability in R v Jogee [2016] UKSC 8. The jury had been directed under the former foresight-based approach to parasitic accessory liability. The central issues were whether admission of the plea made the trial unfair and whether the erroneous murder direction caused substantial injustice.

1. Appeal dismissed. The admission of the co-accused’s guilty plea did not render the robbery or murder convictions unsafe.

2. The plea was admissible under section 74 of the Police and Criminal Evidence Act 1984 for the confined purpose of proving that the first robbery had occurred. The occurrence of a robbery was overwhelmingly established by other evidence and was not, in reality, the live issue. The live issue was whether the appellant had participated. The plea did not decide that issue, since the co-accused could have acted alone.

3. The trial judge’s directions properly confined the relevance of the plea. They made clear that it did not prove the appellant’s involvement in any offence. Applying the approach in R v Smith [2007] EWCA Crim 2105, there was no unfairness requiring exclusion under section 78.

4. The murder direction had proceeded on the former proposition that foresight alone could establish secondary liability. Under R v Jogee [2016] UKSC 8, the relevant intention to assist, and the intention that the further crime be committed, may be conditional in a prior joint criminal venture. In an appeal pending when that law was corrected, R v Johnson and Others [2016] EWCA Crim 1613 required the appellant to establish substantial injustice. The primary question was whether the correct direction would have made a difference.

5. This case lay towards the serious-violence end of that assessment. The appellant actively participated in two robberies, remained in the flat while the victim was savagely attacked nearby, and continued his role in the robbery after appreciating the use of really serious violence. The only proper inference was that he participated with the requisite intent. A direction compliant with Jogee would therefore not have altered the result, and substantial injustice was not established.

• Court of Appeal (Criminal Division): By judgment dated 23 February 2017, [2017] EWCA Crim 268, dismissed the appeal against conviction.
• Crown Court at Leeds: On 13 August 2015, convicted the appellant of two robberies and murder.