No: 201505014 B1 
Neutral Citation Number: [2016] EWCA Crim 678
IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
Royal Courts of Justice
Strand
London, WC2A 2LL

Tuesday, 12th April 2016

 
B e f o r e:

VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
LADY JUSTICE HALLETT DBE 
 
MR JUSTICE JEREMY BAKER

RECORDER OF MIDDLESBROUGH 
HIS HONOUR JUDGE BOURNE‑ARTON QC 
(Sitting as a judge of the Court of Appeal Criminal Division) 

 - - - - - - - - - - - - - - - - - - - -

R E G I N A 

v 

LIAM KARL O'BRIEN
 
- - - - - - - - - - - - - - - - - - - -
 
Computer‑Aided Transcript of the Stenograph notes of
WordWave International Ltd trading as DTI  
8th Floor, 165 Fleet Street, London EC4A 2DY 
Tel No:  020 7404 1400  Fax No: 020 7831 8838
(Official Shorthand Writers to the Court) 

- - - - - - - - - - - - - - - - - - - -

Miss J Smart appeared on behalf of the Appellant
Mr H MacLean‑Watt appeared on behalf of the Crown
 
- - - - - - - - - - - - - - - - - - - -

J U D G M E N T
1.	THE VICE PRESIDENT:  
2.	Background 
3.	The applicant appeared at the Blackfriars Crown Court charged jointly with Junior Owusu‑Sekyere and Kadeem Simon Brown with an offence of robbery.  Brown pleaded guilty.  On 5th October 2015 the appellant and Owusu‑Sekyere were convicted.  The issue for this court is whether Brown's plea of guilty should have been admitted in evidence at the appellant's trial.
4.	We can state the facts briefly.  Mr Luck and his friend Mr Desiato were walking along Islington High Street, looking for a taxi, in the early hours of the morning when they were approached by a group of four men: the three accused, and a fourth man (arrested but not charged).  The encounter was captured on CCTV.  
5.	The appellant accused Mr Luck of having thrown water over him.  Mr Luck denied having done so.  According to Mr Luck, the men became more aggressive, surrounded him and separated him from his friend.  They told him he could not ‘get away with’ what he had done and he should tell them who threw the water or he would have to pay.  One of the men, whom he described as "the Turkish guy" (agreed to be the appellant), punched him hard to the side of the face and, with the others, pushed him towards a cash machine, demanding he pay them £250.  He was threatened that if he did not go to the cash point he would be stabbed and killed.  He withdrew £100, which he gave to the appellant.  Brown demanded his bank card and PIN.  His bank records later revealed that two amounts of £100 were withdrawn from his account followed by several unsuccessful attempts to withdraw a further £50.  
6.	The appellant gave evidence at trial that he had gone to Upper Street to get something to eat with his co‑accused.  In the queue at the hot dog stand he and Owusu‑Sekyere were hit by liquid.  He asked Mr Luck and Mr Desiato who had thrown the water.  They denied responsibility but he refused to accept their answer and kept asking them who was responsible.  He threw a punch at the victim, he claimed in self‑defence because the victim had "invaded his personal space" and waved his arms.  He said he overheard a conversation between Mr Luck and Brown in which Mr Luck offered compensation of £50 for his wet hoodie.  He, the appellant, insisted on £250.  He saw Mr Luck and Mr Brown at the cash point.  He believed Mr Luck was withdrawing the money he had offered.  He did not threaten Mr Luck at any time, he did not see or hear Brown make any threat.  When Mr Luck gave him £100, he protested the agreement was for £250, and so Mr Luck withdrew another £100.  Mr Luck claimed he had reached his limit, handed the appellant his cash card, told him his PIN and invited him to check that was the case.  The appellant then tried to withdraw £50 but found he had been given the incorrect PIN.  By this time the victim had left.  Owusu‑Sekyere then tried to withdraw £200 from the victim's account.  
7.	Admission of guilty plea
8.	At the outset of the trial the prosecution applied to admit Brown's plea of guilty into evidence pursuant to section 74 of the Police and Criminal Evidence Act 1984 (“PACE”).  The Recorder considered the matter overnight and provided a very carefully structured and thorough ruling.  He referred to the relevant passages in Archbold and decisions put before him by Miss Smart in R v Kempster [1990] 90 Cr App R 14, R v Nathan Smith [2007] EWCA Crim 2105, and case comment on the decision in R v Curry [1988] Crim LR 527.  He ruled that the guilty plea was relevant to an issue in the case: it was evidence that Brown committed the robbery and it was relevant to whether his co‑accused did so.  He then considered whether the guilty plea should not be admitted because of its adverse effect on the fairness of the proceedings.  He reminded himself he must balance any potential unfairness to the appellant against the potential unfairness to the prosecution and the wider interests of justice.  It was his judgment that a failure to allow the evidence to be admitted would allow the appellant to present a false defence that neither he nor Brown had committed an offence.  He applied the test under section 78 of PACE and asked himself whether admitting the evidence would have such an adverse effect on the fairness of the trial that otherwise relevant and admissible evidence should be excluded.  Whilst he acknowledged the admission of the guilty plea made it more difficult for the appellant to assert there was no robbery, he did not accept that admission of the plea would deprive him of a defence.  It was left open to the appellant to argue that, to his knowledge, there was no robbery and that he participated in no robbery.
9.	Grounds of Appeal
10.	The grounds of appeal advanced by Miss Smart, in helpful and succinct submissions both orally and in writing, focused on the judge's allowing Brown’s guilty plea to be admitted in evidence.  Even if the plea was relevant and admissible under section 74, it was her contention it should have been excluded under section 78.  
11.	Section 74 provides, where relevant:

12.	"In any proceedings the fact that a person other than the accused has been convicted of an offence by or before any court in the United Kingdom or by a Service court outside the United Kingdom shall be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that that person committed that offence, whether or not any other evidence of his having committed that offence is given." 

13.	Section 78(1) provides:

14.	"In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it." 
15.	Ms Smart took us through a number of decisions of this court on the application of s.74, as she had with the trial judge. The most helpful recent summary of those decisions appears in the case of Nathan Smith. Although the court noted that the line of cases considered had been decided before the passing of the Criminal Justice Act 2003 (“CJA”), which extended the ambit of evidence ‘with which a jury can be trusted,’ it did not follow the decisions were out of date. Section 74 should be “sparingly applied".  The reason given at paragraph 16 is:
i.	"... because the evidence that a now absent co‑accused has pleaded guilty may carry in the minds of the jury enormous weight, but it is nevertheless evidence which cannot properly be tested in the trial of the remaining defendant.  That is particularly so where the issue is such that the absent co‑defendant who has pleaded guilty could not, or scarcely could, be guilty of the offence unless the present defendant were also.  In both those situations the court needs to consider with considerable care whether the evidence of the conviction would have a disproportionate and unfair effect upon the trial.  With those cases can be contrasted the kind of case in which there is little or no issue that the offence was committed, and the real live issue is whether the present defendant was party to it or not.  In those circumstances, commonly, the pleas of guilty of other co‑defendants can properly be admitted to reinforce the evidence that the offence did occur, leaving the jury independently to consider whether the guilt of the present defendant is additionally proved."  
16.	Thus, the focus of the court remains: what is the issue to which the guilty plea is said to be relevant? Would the admission of the plea of guilty of a now absent co-defendant have an unfair impact upon the fairness of the trial by closing off much or all of the issues? (See paragraph 17). On the facts of Nathan Smith the court concluded that it did. The court was also critical of the judge’s directions to the jury to the effect that the only significance of the co-defendant’s plea was that the girl had admitted her guilt.  If that was so, the requirements of section 74 (by which the judge had purported to admit the evidence) had not been met.
17.	Miss Smart does not submit that the Recorder’s directions here were wrong; he directed them in clear terms that (pursuant to s.74) the plea of guilty was admissible to prove that Brown had committed the offence of robbery.  However, she maintained that simply by admitting the evidence, the judge has effectively closed off the issue that the jury had to try.  She had no opportunity to challenge Brown or test the basis upon which he pleaded guilty. The fact that he was guilty of robbery meant that the appellant must have been involved with him.  The appellant's case was inextricably bound up with that of Brown.  Brown could not have been guilty of robbery simply by standing by the cashpoint and adding his threatening presence unless the appellant was in the process of committing a robbery.  Accordingly, if Brown was guilty of the offence, the jury would inevitably conclude that so must the appellant be.  No directions could rectify the unfairness to the appellant.
18.	Conclusions
19.	As in the case of Smith, we have no doubt that the evidence of Brown's plea of guilty was relevant and admissible at the appellant's trial.  It went to the issue of whether there was a robbery. The question for us, however, is whether its admission into evidence has closed off the very issue that the jury had to try and should therefore have been excluded under section 78.  In our view, on the facts of this case, it did not.  There were up to four people allegedly involved in the robbery.  Words may have been uttered and threats issued not heard by all. It did not follow from the plea of one of the four that all four must be guilty.  
20.	The appellant's case throughout, from the defence case statement to his evidence at trial, was that, whatever Brown and others were up to, he was not involved in a robbery. As far as he was concerned, Mr Luck was withdrawing cash to hand to him as compensation for his wet hoodie.  He insisted he was unaware of any threats and that any violence in which he had been involved had been in the course of self‑defence.  The evidence of Brown's plea did not remove that defence from him.  It was open to Miss Smart to argue on his behalf that even if Brown was a robber, the jury could not be sure the appellant was also one. Even if Miss Smart's task was made more difficult by the admission of the plea, as she claims, she still had a defence to run.  The fact that the appellant's account lacked credibility had nothing to do with Brown's plea.  
21.	Accordingly, although the individual members of this court would not have agreed to the plea of guilty being admitted in evidence, and we understand why the single judge has given leave, we were not persuaded the trial judge fell into error.  It was open to him to admit the plea of guilty.  
22.	Even if we had been satisfied that the judge had fallen into error in admitting the plea, the ultimate question for us is whether the conviction is unsafe.  It is not. The evidence was overwhelming: the incident was captured on CCTV and the appellant admitted punching Mr Luck for no obvious reason and when he was under no real threat. Further, the idea that Mr Luck would have been prepared to pay £250 for spilling water on the appellant’s hoodie and would have willingly left his credit card and pin number behind or that the appellant could have thought, even in drink, that he was entitled to £250 for a wet hoodie, stretches credulity to breaking point.  The defence, as the prosecution at trial argued, bears all the hallmarks of the appellant having fabricated a story to meet the objectively verifiable facts, namely the appellant’s aggressive behaviour caught on camera and the withdrawals and attempted withdrawals from Mr Luck’s bank account. We doubt the jury would have placed any great reliance on Brown's plea, they could see for themselves the circumstances in which Mr Luck's money and card were taken.  
23.	For all those reasons, therefore, as indebted as we are to Miss Smart for her submissions, and to Mr MacLean‑Watt for stepping into the breach at the last moment for today’s hearing, this appeal must be dismissed.