Shirt & Anor v The Queen

A co-accused’s guilty plea which falls within section 74(1) of the Police and Criminal Evidence Act 1984 may be admitted as evidence that a conspiracy existed. It does not prove that another defendant joined the conspiracy or acted dishonestly.

The section 78 inquiry is whether admission would adversely affect the fairness of the proceedings, not whether it makes the defence more difficult. The assessment is fact-sensitive and balances the interests of the defendant, the prosecution and justice. A clear direction restricting the plea to the existence of the conspiracy can preserve fairness where the jury must still decide each defendant’s knowing participation and dishonesty independently.

The appellants were convicted at the Crown Court at Derby of conspiracy to commit fraud by making a false representation, contrary to section 2(1) of the Fraud Act 2006. The prosecution alleged that they participated in presenting a forged will as genuine in order to secure property for the deceased’s step-granddaughter.

Two co-accused, who purportedly witnessed the will, had pleaded guilty before trial. The trial judge admitted evidence of those pleas under section 74(1) of the Police and Criminal Evidence Act 1984, while directing the jury that it was relevant only to the existence of a conspiracy. The appellants appealed, contending that the evidence destroyed their sole defence that the will was genuine and should have been excluded under section 78.

1. The appeals were dismissed. The co-accused’s guilty pleas fell within section 74(1) of the Police and Criminal Evidence Act 1984. They were relevant, and therefore prima facie admissible, as evidence that a conspiracy existed. The indictment did not allege a closed conspiracy. The pleas did not establish that either appellant was a knowing party to it or acted dishonestly.

2. The applicable question under section 78 was whether admission would adversely affect the fairness of the proceedings. Difficulty caused to a defence did not itself amount to unfairness. The assessment was fact-sensitive and required a balance between the interests of the defence, the prosecution and justice, consistently with R v Denham & Stansfield [2017] 1 Cr App R 7.

3. When the judge ruled at the start of trial, the appellants’ stated case did not rest solely on the genuineness of the will. The prosecution still had to prove both knowing participation in a conspiracy and dishonesty. Although the guilty pleas made the assertion that the will was genuine more difficult, they did not have the same effect on those separate issues. The handwriting evidence also independently created substantial difficulty for the defence on genuineness.

4. The subsequent evidence did not render the trial unfair. The trial judge gave a clear and appropriately confined direction: the pleas could be used only on the issue whether a conspiracy existed, and could not determine the appellants’ guilt. The jury still had to be sure of every element against each appellant.

5. There was a peripheral criticism that defence counsel should perhaps have been permitted to comment on why the co-accused had pleaded guilty. It was not a ground of appeal and, in any event, could not render the verdicts unsafe.

• Court of Appeal (Criminal Division): In [2018] EWCA Crim 2486, dismissed both conviction appeals and upheld the ruling admitting the co-accused’s guilty pleas.
• Crown Court at Derby: On 14 March 2018, the appellants were convicted of conspiracy to commit fraud by making a false representation. They were sentenced on 17 April 2018.