R v O’BRIEN (2016)

At the appellant’s trial for a joint enterprise robbery the judge had been entitled to admit evidence of a co-accused’s guilty plea. Although there was CCTV footage which showed that only the appellant could have been involved with the co-accused, the plea had not removed the appellant’s defence and, in any event, the jury would not have placed much reliance on it as the evidence against him was overwhelming.
The appellant (O) appealed against his conviction for robbery.

O and three other men had approached the victim as he was walking along the road in the early hours of the morning. O accused the victim of throwing water on him, which he denied. The victim’s case was that O became aggressive. He claimed that O had punched him and had pushed him towards the cashpoint, threatening to stab and kill him. The incident was captured on CCTV. The victim could be seen to take money out and give it to O. One of the other men (B) could be seen next to the cash point during the incident. B pleaded guilty to robbery. O’s case at trial was that he had been hit by liquid and that he had punched the victim as he had invaded his personal space. He denied involvement in a robbery, insisting that the victim had given him money as compensation and that neither he, nor B, had threatened anyone. The Crown applied to adduce B’s guilty plea under the Police and Criminal Evidence Act 1984 s.74. The judge ruled that it was relevant to whether B’s co-accused had committed the robbery and considered that failure to allow it into evidence would allow O to present an untrue defence, namely that neither he nor B had been involved in the offence. 

O submitted that, even if admissible under s.74, B’s guilty plea should have been excluded under s.78 of the Act as its admission had closed off the issue that the jury had to try. He argued that the two cases were inextricably bound; B’s plea necessitated involvement in a joint enterprise robbery and it could only have been O who was involved with him. Accordingly, B’s guilty plea would inevitably lead the jury to conclude that O must also be guilty.

HELD: There was no doubt that B’s guilty plea was admissible. The question was whether its admission had closed off the issue that the jury had to try and whether it ought therefore to have been excluded under s.78. Four individuals had potentially been involved in the offence, but it did not follow that they all had to be guilty. B’s plea had not removed O’s defence; the fact that his account lacked credibility had nothing to do with the guilty plea. Whilst the instant court would not have admitted it into evidence, it had been open to the trial judge on the facts to do so and he had not fallen into error. The ultimate question was whether the conviction was safe. The evidence against O was overwhelming and the jury would not have placed any great reliance on B’s guilty plea. It could see for itself the circumstances in which the victim’s money had been taken, R. v Kempster (Mark John) [1989] 1 W.L.R. 1125 and R. v S [2007] EWCA Crim 2105, (2007) 151 S.J.L.B. 1260 considered.

Appeal dismissed

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