R v Tyler Moore

Where a co-defendant’s conviction is admissible under section 74 of the Police and Criminal Evidence Act 1984, exclusion under section 78 depends on the fairness of the trial. The central question is whether the conviction imports the defendant’s complicity so as unfairly to close off a real defence. A conviction will not ordinarily have that effect where the jury must still decide whether the defendant was present, participated, assisted or encouraged the offence, and had the requisite intent. The fact that the evidence makes the defence harder to advance does not itself make the trial unfair. An earlier co-defendant’s acquittal was irrelevant where it could invite speculation about different evidence heard by a different jury.

Tyler Moore was convicted of murder at the Central Criminal Court on 7 July 2022 following the joint-enterprise killing of Mohammed Usman Mirza. The prosecution alleged that Moore assisted or encouraged the attack and was present at the scene. Moore denied involvement and maintained that he was at home.

At the trial, the judge admitted under section 74 of the Police and Criminal Evidence Act 1984 evidence of convictions of co-defendants from an earlier trial, including Omari Thompson’s murder conviction. Moore sought permission to appeal, contending that this evidence should have been excluded under section 78 because it effectively established his own involvement. He also relied on the earlier acquittal of another co-defendant, Aman.

The central issue was whether admitting Thompson’s conviction unfairly closed off Moore’s defence or otherwise made the trial unfair.

1. Permission to appeal was refused. The trial judge correctly admitted the earlier convictions under section 74 of the Police and Criminal Evidence Act 1984 and was entitled not to exclude them under section 78.

2. The court approved the orthodox approach explained in R v Stevens [2020] EWCA Crim 280. Once a co-defendant’s conviction is admissible, the material question is whether it imports the present defendant’s complicity to such an extent that it unfairly forecloses a defence. That inquiry is fact-specific.

3. Thompson’s conviction did not determine Moore’s guilt. The jury still had to decide whether Moore was at the scene, whether the telephone evidence was consistent with his being at home, whether he participated in or assisted or encouraged the attack, and whether he had the intent required for murder. Moore’s defence therefore remained available, although the evidence may have made it more difficult to advance.

4. The judge was also entitled to find that admission of the convictions did not prejudice trial fairness. In a single trial, a jury could take account of guilty verdicts against co-defendants. Section 74 provided the factual starting point in the later trial without relieving the jury of its task in relation to Moore.

5. Aman’s acquittal was irrelevant. Telling the jury about it could have encouraged speculation about why a different jury, which had heard different evidence, reached a different verdict. The summing-up and route to verdict properly directed the jury on the permissible use of the conviction evidence.

• Court of Appeal (Criminal Division): refused Moore permission to appeal against conviction: [2023] EWCA Crim 1184.
• Central Criminal Court: Moore was convicted of murder before HHJ Durran and a jury on 7 July 2022. No citation was stated in the judgment.