Abdirahman Dirie & Anor v R

In a criminal trial, a confession by one accused may be admissible for a co-accused under section 76A of the Police and Criminal Evidence Act 1984, but admissibility does not itself place the confession before the jury. Unless the parties agree otherwise, the document must be properly produced in evidence, ordinarily through a witness who can identify and explain its provenance. Evidence heard on a voir dire establishes admissibility; it does not thereby become evidence in the jury trial. The judge determines admissibility, while the jury determines the weight of an admitted confession, including by considering the circumstances in which it was obtained. Requiring the co-accused who relies on the document to give evidence does not, without more, make the trial unfair.

Two defendants appealed against convictions for murder, perverting the course of justice and arson following a trial at Birmingham Crown Court before HHJ Laird KC. The first appellant challenged the rejection of a submission of no case to answer, arguing that circumstantial evidence concerning a mobile telephone and DNA did not support a safe conviction. The second appellant challenged the exclusion from the jury of a document containing admissions by the first appellant which assisted his defence.

The appeals concerned whether the first appellant’s counsel had properly conceded that the user of a particular telephone was involved in the murder, and whether the confession document, after being ruled admissible under section 76A of the Police and Criminal Evidence Act 1984, had to be produced again before the jury.

1. Dirie’s appeal dismissed. The evidence supported the concession that the user of the 7708 telephone during the relevant period was a party to the murder. The timing and pattern of calls before and after the shooting, including contact with telephones associated on the Crown’s case with other participants, entitled the jury to conclude that the contact was connected with the murder rather than being merely social. It remained for the jury to decide whether Dirie was using the telephone at the relevant times. The judge was therefore right to reject the submission of no case to answer.
2. Omar’s appeal dismissed. Section 76A of the Police and Criminal Evidence Act 1984 addressed admissibility. The judge’s findings that the document was prepared on Dirie’s instructions, signed voluntarily and not obtained through oppression or circumstances likely to render it unreliable meant that it was admissible for Omar.
3. The production requirement was separate from admissibility. A voir dire determines whether evidence is admissible. Even where the judge rules documentary evidence admissible, it does not thereby become evidence in the trial before the jury. Under section 133 of the Criminal Justice Act 2003, the document had to be proved by producing it before the jury, unless the parties agreed another course. The production could ordinarily be undertaken by a witness who could identify the document and give relevant evidence about its provenance.
4. The approach in R v Mustaq [2005] UKHL 25 applied. The judge decides admissibility, while the jury decides the weight of an admitted confession and may consider the circumstances in which it was obtained. The fact that Omar would need to give evidence to put the document before the jury did not make the procedure unfair. He retained the choice whether to testify and chose not to do so.
5. The court expressed no view on the application of section 126 of the Criminal Justice Act 2003 to section 76A. That question was unnecessary to determine the appeal and should be considered in a case where it is necessary.

• Court of Appeal (Criminal Division): The appeals against conviction were dismissed. Abdirahman Dirie & Anor v R [2023] EWCA Crim 341.
• Birmingham Crown Court: The appellants were convicted of murder, perverting the course of justice and arson following trial before HHJ Laird KC.