Tesfazgi, R v

A trial judge may refuse to discharge a jury following a late and unverified third-party confession where there is a substantial risk that the intervention is intended to derail the trial, particularly after previous delay. The refusal will not render convictions unsafe where the confession does not undermine compelling evidence on the issues the jury had to decide. A claim that another person possessed a firearm earlier does not answer whether the defendant knowingly possessed it at the relevant time.

The applicant was convicted at St Albans Crown Court of aggravated vehicle taking, possession of a prohibited firearm and possession of an article with a blade or point. He had also pleaded guilty to a further knife-possession offence and received six years’ imprisonment in total.

After the jury had retired, a man attended a police station and made a brief account claiming that he had left the shotgun in the stolen vehicle. He then withdrew cooperation. The defence sought discharge of the jury so that the account could be investigated. The trial judge refused, considering that it was likely to be an attempt to derail a delayed trial.

The single judge refused leave to appeal. On renewal, the central issue was whether refusal to discharge the jury rendered the convictions unsafe.

1. The renewed application for leave to appeal against conviction was refused. The court also refused the applicant’s late request for an adjournment to obtain representation. It was the first attempt to seek representation and the court had considered the application’s merits.

2. The trial judge had been entitled to refuse to discharge the jury after the purported confession. The account was brief, unverified and followed by the confessor’s refusal to cooperate. There was a high risk that it was a deliberate attempt to derail proceedings which had already been delayed.

3. The purported confession did not undermine the safety of the convictions. The relevant issue was whether the applicant knowingly possessed the shotgun when the vehicle was stopped, not whether the confessor might earlier have possessed it. The weapon was in an unhidden bag in the front passenger footwell, where the applicant had been sitting, alongside a rucksack containing a knife bearing his DNA. The weapons and petrol can in a diesel vehicle also supported the inference that the occupants were jointly equipped for violence.

4. No application had been made to admit the purported confession as fresh evidence under section 23 of the Criminal Appeal Act 1968, although that course had been identified in counsel’s advice. The refusal to discharge the jury therefore did not render the convictions unsafe.

• Court of Appeal (Criminal Division): renewed application for leave to appeal against conviction refused: [2018] EWCA Crim 881.

• Crown Court at St Albans: on 28 June 2017, the applicant was convicted of aggravated vehicle taking, possession of a prohibited firearm and possession of bladed articles; he received a total sentence of six years’ imprisonment.