| CRIME — Evidence — Admissibility — Confession by co-accused — Co-accused pleading guilty and not called as witness — Whether “another person charged in the same proceedings” as defendant — Whether confession admissible in evidence for defendant — Police and Criminal Evidence Act 1984, s 76A (as inserted by Criminal Justice Act 2003, s 128(1)) — Criminal Justice Act 2003, s 114(1)(d)
R v Finch
CA: Hughes LJ, Rafferty J and Sir Charles Mantell: 15 January 2007
S 76A of the Police and Criminal Evidence Act 1984, which enabled a confession made by a co-accused to be given in evidence for another person charged in the same proceedings, did not apply where that co-accused had pleaded guilty and therefore no longer stood trial with the defendant.
The Court of Appeal (Criminal Division) so held when granting an application for permission to appeal but dismissing an appeal by David Finch against his conviction on 27 April 2006 by the Crown Court at Maidstone (Judge Carey and a jury) for offences of possessing a prohibited firearm and possessing ammunition without a firearm certificate, contrary to ss 5(1)(aba) (as inserted by s 1(2) of the Firearms (Amendment) Act 1997) and 1(1)(b) of the Firearms Act 1968.
LORD JUSTICE HUGHES, giving the judgment of the court, said that the defendant and his co-accused “R” were jointly charged with possessing a firearm and ammunition. During his police interview, R admitted possessing them but said that the defendant had no knowledge of them. R pleaded guilty. At trial the defendant contended that he had no knowledge of the firearm and sought to rely on R’s interview statement to that effect. R had been brought to court, but as he was a reluctant witness, defence counsel chose not to call him. The defendant applied to admit R’s interview statement in evidence under s 76A of the Police and Criminal Evidence Act 1984. The judge refused the application on the ground that section 76A only applied to an accused and co-accused who were together in a trial or Newton hearing and not to an a co-accused who had pleaded guilty. The judge also refused a defence application to admit the statement as hearsay evidence under s 114(1)(d) of the Criminal Justice Act 2003 on the grounds that it was not in the interests of justice to do so. His Lordship said that the judge had been correct to rule as he did. It was established law that a defendant who had pleaded guilty and was not on trial, was not a person charged with an offence in proceedings for the purpose of his status as a witness. In enacting s 76A Parliament must have been taken to apply that principle. A person charged in proceedings was not compellable as a witness for other defendants on trial. The purpose of s 76A was to put in statutory form the rule that a defendant A in a joint trial could cross-examine defendant B on B’s confession if B gave evidence, and adduce that confession even if B declined to give evidence. Once B pleaded guilty, he was compellable. It had been open to the defendant to seek to treat R as an adverse witness and put his interview to him as a previous inconsistent statement. The fact that the defendant decided not to risk calling him as a witness did not render it necessary to admit R’s out of court statement in the interests of justice. R’s reluctance to give evidence put his credibility into question. Even if a co-accused was unavailable or had good reason not to give evidence, it would rarely be in the interests of justice for evidence he was not prepared to have tested, to be put before the jury untested.
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