Arguments for Excluding a Co-accused’s Guilty Plea and the s. 78 ‘Duty’ R v O’Brien [2016] EWCA Crim 678
| Author | Damian Warburton |
| Published date | 01 October 2016 |
| Date | 01 October 2016 |
| DOI | http://doi.org/10.1177/0022018316668054 |
| Subject Matter | Court of Appeal |
The Journal of Criminal Law 80(5)
What is more, there is no judicial discretion in respect of s. 236A. It is always for the sentencing judge
to determine dangerousness. The finding is never mandatory. However, if a s. 236A offence has been
committed, and the offender is not dangerous, the s. 236A sentence must be passed, with the conse-
quences that may follow.
The result may be that offenders who have committed less serious offences spend more time in
custody than offenders who have committed more serious offences, simply due to the drafting of sched.
18A. This is not a logical or satisfactory situation.
Gavin A. Doig
Arguments for Excluding a Co-accused’s
Guilty Plea and the s. 78 ‘Duty’
R v O’Brien [2016] EWCA Crim 678
Keywords
Robbery, confession evidence, discretion, Police and Criminal Evidence Act 1984, s.74, s.76 and s.78
The appellant was convicted of robbery after a trial at which the earlier guilty plea of a co-accused had
been admitted in evidence pursuant to the provisions of s. 74 of the Police and Criminal Evidence Act
1984 (PACE).
The facts behind this appeal were significantly disputed. The appellant’s version of events at trial was
that, after V had thrown water at him which wet the appellant’s clothing, an on-street offer by V was
made to the appellant’s co-accused (D3) to pay to the appellant £50 in compensation. According to the
appellant, he protested that the amount should be £250 and V withdrew £200 in total from a cashpoint,
which he gave to the appellant voluntarily, along with his bank card and PIN for confirmation that no
more could be withdrawn from the cashpoint. The appellant said that V then disappeared, leaving his
card behind and another of the appellant’s co-accuseds (D2) attempted to withdraw further money.
V’s version of events was predictably very different and placed the appellant as part of a group of
three men who, falsely alleging that V had thrown water at them, delivered a punch to the side of V’s
face, threatened him with being stabbed and killed, and aggressively jostled him to the cashpoint from
which he was compelled to extract £100. V said that he was then made to hand over his card and PIN, and
that subsequently £200 was withdrawn and attempts made to withdraw further sums. Some of the
relevant events were recorded by CCTV. The three accused were arrested, along with a fourth man
who was not charged.
D3 was a man called Brown and he pleaded guilty before the trial got under way. During the trial of
D1 and D2 the jury were permitted to hear evidence of D3’s earlier guilty plea. The trial judge had ruled
this to be admissible under s. 74 of the 1984 Act and rejected submissions made to exclude it pursuant to
the provisions of s. 78 of that Act. The jury evidently preferred the Crown’s version of events and the
appellant and D2 were convicted.
The appeal was brought on the basis that the trial judge had been wrong not to exercise his discre-
tionary power to exclude evidence of the conviction under s. 78 of PACE. The appellant submitted that,
as his involvement in the events was so closely associated with that of Brown, if Brown was guilty then
the jury would inevitably conclude that the appellant must also be guilty. The appellant contended that it
was therefore unfair for the purposes of s. 78 to admit Brown’s guilty plea as it did not allow the
Court of Appeal
295
appellant to be tried on the basis of his version of events, which was that ‘whatever Brown and the others
were up to, he was not involved in a robbery’ (at [20]).
HELD, DISMISSING THE APPEAL, that, notwithstanding that the individual members of the
court considered that, had any of them been presiding over the trial, none would have admitted the guilty
plea of D3, the judge had not erred in doing so.
. . . evidence of Brown’s guilty plea was relevant and admissible . . . 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 [whether it] 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. (at [19])
Even if the court had concluded that the judge erred in admitting the plea, the conviction was not
unsafe as ‘[t]he evidence was overwhelming . . . ’ (at [22]).
Commentary
Admissibility at trial of a conviction of a person other than an accused is...
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