Court of Appeal

Published date01 April 2007
Date01 April 2007
AuthorBen Fitzpatrick
Subject MatterCourt of Appeal
Court of Appeal
Confession of a Co-accused; Hearsay
R v Finch [2007] EWCA Crim 36
The appellant had been charged, with a co-accused, R, with possession
of a prohibited firearm and ammunition. The appellant and R were
stopped by the police on the motorway. R was driving and the appellant
was in the passenger seat of their car. There was a drawer underneath
the passenger seat, in which there was a 9 mm self-loading pistol with a
loaded magazine in place. The appellant claimed that he was merely
accompanying R on the journey, and that he had no idea there was a
gun in the car. R told the police in interview that he was delivering the
gun as an errand for a man to whom he owed money and of whom he
was very scared. He claimed that he had been instructed to deliver the
gun at a service station but that the person whom he was supposed to
meet had not been there. R also claimed that the appellant did not know
that the gun was in the car. R pleaded guilty at trial.
The appellant wanted to use the police interviews with R to support
his case. At trial, the judge declined to admit the interviews under s. 76A
of the Police and Criminal Evidence Act 1984 (PACE), because R was not
being tried together with the appellant. The judge also heard an applica-
tion to admit the interviews as hearsay under s. 114(1)(d) of the
Criminal Justice Act 2003 (‘the 2003 Act’). However, he declined to
admit the evidence on that basis; it was not in the interests of justice for
these statements to be admitted, as R was available to give evidence. The
appellant appealed on the basis that the judge’s rulings on s. 76A of
PACE and s. 114(1)(d) of the 2003 Act were wrong.
Section 76A of PACE states:
(1) In any proceedings a confession made by an accused person may be
given in evidence for another person charged in the same proceedings (a
co-accused) in so far as it is relevant to any matter in issue in the proceed-
ings and is not excluded by the court in pursuance of this section.
(2) If, in any proceedings where a co-accused proposes to give in evi-
dence a confession made by an accused person, it is represented to the
court that the confession was or may have been obtained—
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the
circumstances existing at the time, to render unreliable any confes-
sion which might be made by him in consequence thereof, the
court shall not allow the confession to be given in evidence for
the co-accused except in so far as it is proved to the court on the
balance of probabilities that the confession (notwithstanding that
it may be true) was not so obtained.
(3) Before allowing a confession made by an accused person to be given
in evidence for a co-accused in any proceedings, the court may of its own
motion require the fact that the confession was not obtained as mentioned
in subsection (2) above to be proved in the proceedings on the balance of
Section 114 of the 2003 Act provides:
(1) In criminal proceedings a statement not made in oral evidence in the
proceedings is admissible as evidence of any matter stated if, but only if
(a) any provision of this Chapter or any other statutory provision
makes it admissible,
(b) any rule of law preserved by section 118 makes it admissible,
(c) all parties to the proceedings agree to it being admissible, or
(d) the court is satised that it is in the interests of justice for it to be
(2) In deciding whether a statement not made in oral evidence should
be admitted under subsection (1)(d), the court must have regard to the
following factors (and to any others it considers relevant)
(a) how much probative value the statement has (assuming it to be
true) in relation to a matter in issue in the proceedings, or how
valuable it is for the understanding of other evidence in the case;
(b) what other evidence has been, or can be, given on the matter or
evidence mentioned in paragraph (a);
(c) how important the matter or evidence mentioned in paragraph (a)
is in the context of the case as a whole;
(d) the circumstances in which the statement was made;
(e) how reliable the maker of the statement appears to be;
(f) how reliable the evidence of the making of the statement appears
to be;
(g) whether oral evidence of the matter stated can be given and, if not,
why it cannot;
(h) the amount of difculty involved in challenging the statement;
(i) the extent to which that difculty would be likely to prejudice the
party facing it.
,the statements of R could not be used
by the appellant by way of s. 76A of PACE because upon Rs plea of
guilty, R and the appellant were no longer co-accuseds for the purposes
of that provision. On the issue of s. 114(1)(d) of the 2003 Act, the trial
judges decision not to admit the interviews was a decision at which he
was entitled to arrive and it would not be interfered with on appeal.
Section 76A of PACE was created by way of an amendment inserted by
the Criminal Justice Act 2003. It is peculiar that it is only so recently that
the rules relating to a confession by a defendant which a co-accused
might wish to deploy in his own favour have been rendered into
statutory form. It is trite law that a confession is only admissible against
the person who makes it (see R v Gunewardene [1951] 2 KB 600; R v
Silcott [1987] Crim LR 765). The position with a confession made by D
which exculpates a co-accused has been more troublesome, complicated
by the historic intersection of s. 76(1) of PACE, which allows the
prosecution to adduce a confession, but not a co-accused, and the com-
mon law, which permits co-accused X to introduce Ys confession as a
matter of common law as a statement against Ys interests (subject to Ys
voluntariness in making the statement). Particularly vexing as a matter
of principle was the position where the confession was tainted in its
The Journal of Criminal Law

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