Horne v R.

Evidence of a co-accused’s guilty plea under section 74(1) of the Police and Criminal Evidence Act 1984 must be used sparingly. In a closed conspiracy involving only two alleged conspirators, the plea may effectively determine the central issue against the remaining accused. A limiting direction cannot cure the resulting unfairness where the plea logically proves that both parties conspired. The evidence should then be excluded under section 78.

For section 240ZA of the Criminal Justice Act 2003, a related offence is one founded on the same facts or evidence. That statutory test is to be applied literally. A test permitting joinder because offences have a common factual origin cannot be transplanted into the statutory calculation of remand time.

The appellant was convicted at Leicester Crown Court of conspiracy with Ryan Parry to pervert the course of public justice by interfering with two witnesses. During the trial, the judge admitted Parry’s guilty plea to that conspiracy. The appellant contended that, because the alleged conspiracy was closed and involved only himself and Parry, the plea inevitably implicated him.

The appellant also renewed an application to appeal his sentences for conveying a list B article and for telephone offences committed while in custody. He argued that those offences were related to earlier attempted murder and grievous bodily harm charges, so that remand time should count from his arrest. The central issues were the fairness of admitting Parry’s plea and the meaning of a related offence under section 240ZA.

1. The conviction appeal was allowed and the conspiracy conviction was quashed. The renewed application for permission to appeal sentence was granted, but the sentence appeal was dismissed.
2. The Court applied the approach in R v Derk Nathan Smith [2007] EWCA Crim 2105. Evidence of an absent co-accused’s guilty plea may be fair where the commission of the offence is not genuinely disputed and the live issue is whether the accused participated. It may be unfair where it closes off an issue which the jury must determine.
3. This was a closed conspiracy of two alleged participants. Parry could not have been guilty of conspiring with the appellant unless the appellant was also guilty. His plea therefore tended directly to establish the very issue the jury had to decide. The judge’s attempt to use the plea only as support for the credibility of the prosecution witnesses was logically ineffective, because accepting that support was directly relevant to the appellant’s guilt. The evidence ought to have been excluded under section 78 of the Police and Criminal Evidence Act 1984. Despite other evidence, the Court could not be sure that the appellant would have been convicted without it.
4. On sentence, section 240ZA of the Criminal Justice Act 2003 was construed according to its terms. The telephone offences, committed months after the earlier incident and supported by evidence of separate later conduct, were not founded on the same facts or evidence as the attempted murder and grievous bodily harm charges. The joinder approach in R v Barrell & Wilson [1979] 69 Cr App R 250 did not govern the statutory question. Time on remand could not count from before the telephone offences were committed.

• Court of Appeal (Criminal Division). In [2020] EWCA Crim 487, the Court allowed the appeal against conviction and quashed the conspiracy conviction. It granted permission to appeal sentence but dismissed that appeal.
• Crown Court at Leicester. The appellant was convicted on 16 May 2019 of conspiracy to pervert the course of public justice and, on 23 May 2019, received an overall sentence of three years and nine months’ imprisonment.