No: 200700062 C2 
Neutral Citation Number: [2007] EWCA Crim 2105
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Thursday, 26th July 2007
 
B E F O R E:

LORD JUSTICE HUGHES 

MR JUSTICE UNDERHILL 
 
THE RECORDER OF HULL 
(Sitting as a Judge of the Court of Appeal Criminal Division) 
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R E G I N A 

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DERK NATHAN SMITH 
 
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MR J FARMER appeared on behalf of the APPELLANT
MR D O'DONNELL appeared on behalf of the PROSECUTION
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J U D G M E N T 
1.	LORD JUSTICE HUGHES:  This appellant and a prostitute called Zoe Taylor were jointly charged with two offences against a client of the girl.  The charges were robbery and the production of a firearm, or imitation firearm, with intent to commit that robbery.  The girl eventually pleaded guilty to both offences.  The appellant did not.  His case at trial was that he had been present, that the girl had stolen money from the client but that it had been theft, not robbery, and that he had had nothing to do with it.  Moreover, there had been no gun.
2.	The judge admitted into evidence the girl's pleas of guilty.  It is here contended that he was wrong to do so.
3.	The victim's evidence was that he had made an appointment by telephone to visit the prostitute at her home.  After they had begun to have some kind of sexual contact the appellant burst into the room, brandishing what the victim said was a gun.  According to the victim the appellant said that he was a police officer.  He affected to be affronted by what the client wanted the girl to do and he pinned the client to the bed, holding the gun at his throat.  Whilst he did that the girl went through his wallet and stole £260.  The client was then allowed to go.  He had undoubtedly then called 999 on his mobile telephone from outside the house.  There was a transcript of that telephone call and it showed, among other things, that the appellant had come outside while the victim was on the telephone and was in a position to see that he was on the telephone.  It showed that the appellant had spoken of returning some or all of the money, at least if the client put the phone down.  In the end that is not what happened.
4.	The appellant's account at trial was that he had a girlfriend who was a prostitute but he left her to her own devices.  He said he had come home.  He had heard raised voices from inside her bedroom.  He had heard her, he said, call out to him to get the man out.  He had gone in.  He admitted that he had lost his temper with the man because of what the man wanted the girl to do.  He agreed that he had leant over the victim on the bed.  He admitted that he had had a torch in his hand and had poked the victim in the face with that, and he admitted that, whilst he was doing that, the girl had taken money from the man's wallet.  He said, however, that the only reason why he had had any physical contact with the man was because the girl had called for help and because he was affronted at what was happening.  He said that he had nothing to do with stealing any money and had not wanted it stolen, and he said that there was no gun.  He said that he had not gone outside because he had spotted that the man was making a telephone call; rather, he had gone outside to return the money.
5.	Those then were the issues at the trial.
6.	The judge admitted the girl's pleas of guilty under section 74 of the Police and Criminal Evidence Act 1984.  So far as relevant, that provides in subsection (1): 
"In any proceedings the fact that a person other than the accused has been convicted of an offence ... shall be admissible in evidence for the purpose of proving ... that that person committed that offence, whether or not any other evidence of his having committed that offence is given." 
In admitting the evidence, the judge said this: 
"The mere fact that the co‑defendant had admitted the two offences does not prove that this defendant committed them.  The jury have the advantage of knowing what the co‑defendant's position is.  The co‑defendant admits stealing the wallet and possessing the firearm.  As to whether the defendant stole the wallet and whether the defendant held the gun to the complainant's head those matters are still to be decided by the jury who will evaluate the complaint's evidence.  In my judgment this situation is far from that in O'Connor even if O'Connor were to be decided in the same way today.  I therefore admit this evidence simply under section 74."
7.	When he came to sum the case up, the judge said this to jury this ‑‑ and this alone ‑‑ about the evidence of the girl's pleas of guilty: 
"Now, Zoe Taylor has pleaded guilty to both of these offences with which the defendant is charged.  That is the evidence.  She has pleaded guilty.  She has admitted the matters, and so you know about her and what she has admitted.  That is its sole significance.  Nothing more, nothing less.  It does not follow that the defendant committed these offences.  Nor does it follow that her admissions are true and correct.  That is for you, the jury, to decide on all the evidence in the case, and in particular of course, the evidence of [the complainant]."
8.	Mr Farmer's first submission for the appellant is that the evidence of the girl's pleas of guilty was bad character evidence for the purposes of the Criminal Justice Act 2003.  It was thus admissible, says Mr Farmer, only if it passed the qualifications set out in section 100 of that Act for the admissibility of a non‑defendant's bad character.  
9.	That submission is misconceived.  The pleas of guilty were evidence that the girl had committed the very two offences which the jury was trying.  Bad character is defined in section 98 of the Criminal Justice Act as "misconduct or a disposition to misconduct".  There is, however, excluded from the definition of bad character misconduct or disposition towards misconduct which "has to do with the alleged facts of the offence with which the defendant is charged".  This misconduct by the girl did have to do with the offences charged ‑ precisely.  Bad character provisions were simply not relevant.  We ought to record that that was the submission which was made on behalf of the appellant at the trial.  On this point, Mr Farmer's first thoughts are an improvement on his second.  
10.	Mr Farmer's submission here has been that whilst the conduct of the girl might fall to be excluded under section 98 the conviction itself is not part of the alleged facts of the offence and that is why it is not excluded by the words of section 98 which we have cited.  That, however, is a further misconception.  Bad character, as defined in section 98, is the misconduct or the disposition towards misconduct.  The conviction itself is not the bad character: it is merely evidence of what the person convicted did.  And in this instance, what the person convicted, that is to say the girl, did, was something to do with the alleged facts of the offence charged.
11.	Bad character aside, Mr Farmer makes three submissions about the admission under section 74 of the girl's pleas of guilty.  First, he says this case does not satisfy the test for admissibility contained in section 74.  Second, he says that if he is wrong about that the convictions should not have been admitted at all as a matter of discretion, applying section 78 of the 1984 Act.  In support of that second submission he says, thirdly, that the judge's direction shows that the judge admitted this evidence under a misunderstanding of what it went to prove.  
12.	The first question is, therefore, whether the conviction was legally admissible under section 74 at all.  That depends upon whether it was admissible in this case to prove that the girl committed the offences.  The answer to that is, "Yes, of course."  It was plainly admissible in the trial of the appellant to prove that the girl had committed the offences.  It was not an indispensable, but an integral, part of proving, as the Crown sought to do, that what had been committed was a joint offence committed by the prostitute and her minder.  Indeed the evidence of the victim plainly went to prove both that the appellant had committed the offences and that the girl had also.
13.	We are asked to consider the direction which the learned judge gave because part of Mr Farmer's submission is that it demonstrates that the conviction was in this case admitted for a purpose other than that provided for by section 74.  Where a conviction is admitted under section 74 it is, by the terms of the statute itself, evidence that the person convicted did commit the offence.  That is also how any jury would understand it.  If a person has admitted an offence, that is obviously evidence that that person did it.  The girl's plea of guilty was, accordingly, not merely evidence that she had pleaded guilty: it was evidence that she was guilty. 
14.	The judge's direction appears to attempt to water down the effect of the admission of this conviction.  If the judge had regarded the conviction as proving no more than that the girl had admitted the offences and not that in fact she was guilty of them, that would have meant that the condition for admissibility contained in section 74(1) would not have been met.  Those are nevertheless the terms in which this jury was directed by the judge.  
15.	That leads us on to what is, we are satisfied, the real question in this case and will be in many section 74 cases.  It is whether the conviction which is legally admissible ought nevertheless to be excluded under section 74 of the Police and Criminal Evidence Act on the grounds that its admission would have such an adverse effect upon the fairness of the proceedings that it ought not to be admitted. 
16.	We have been taken to the line of cases which begins with R v O'Connor [1987] 85 Cr App R 98.  They are well known; we need not review all of them.  We should, however, refer to the helpful distillation of many of them in R v Kempster [1990] 90 Cr App R 14 in the judgment of Staughton LJ.  That line of cases indicates that section 74 should be sparingly applied.  The reason is 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.  
17.	We accept, as did the trial judge in this case, that this line of cases was decided before the passing of the Criminal Justice Act 2003.  We agree that that new Act does proceed, as the judge in this case said, upon the basis that in some respects the ambit of evidence with which a jury can be trusted is wider than the law formally allowed.  That thinking is, we do not doubt, there to be discerned in the bad character provisions of the Criminal Justice Act 2003 and also in the relaxation of the rule against hearsay.  It does not, however, follow that the approach of the line of cases to which we have been referred is simply out of date.  It remains extremely relevant what the issue is in the case before the trial court.  It remains of considerable importance to examine whether the case is one in which the admission of the plea of guilty of a now absent co‑defendant would have an unfair effect upon the instant trial by closing off much, or in some cases all, of the issues which the jury is trying.
18.	It remains a proper approach, we are satisfied, that if there is no real question but that the offence was committed by someone and the real issue is whether the present defendant is party to it or not, evidence of pleas of guilty is likely to be perfectly fair, though of course each case depends upon its own facts.  However, it also remains true that such evidence may well be unfair if the issues are such that the evidence closes off the issues that the jury has to try.  In the present case, the issue which the jury was trying was not whether there was a theft of money from this unfortunate client.  That was accepted.  It was, however, trying whether there was a robbery; namely, whether the admitted physical contact between this appellant and the victim had been made in order to steal or for the reasons which the appellant asserted.  The jury was also trying the question of whether there was a gun there at all.  
19.	Mr O'Donnel for the Crown has invited us to conclude that there was or might have been a route by which the jury could properly have concluded that even if the girl was guilty of these offences the present appellant was not.  The jury might so have concluded, suggests Mr O'Donnel, if it thought that the girl had robbery on her mind throughout and had caused the appellant to become angry with the client with the secret intention of robbing him but without telling the appellant that is what she was going to do.  As for the firearm, says Mr O'Donnel, it might have been open to the jury to think that even though it was not a gun but was a torch, the girl had pleaded guilty to the firearms offence on the basis that she intended the object to have the appearance to the victim of a firearm and thus to facilitate robbery.  Whether or not those somewhat far‑fetched possibilities might have been theoretically available to the jury, there is not the slightest sign that the judge adverted to them as a possibility, no doubt for the very good reason that Mr O'Donnell has formulated them only in response to the present appeal.  The reality of this case was that the indictment charged having a firearm or imitation firearm with intent in count 1.  The issue was whether there was a gun there at all.  It was a live issue.  The jury was told that the other person present had agreed that there was.  That is substantially the effect of what the jury was told.  On count 2 the indictment charged robbery.  The issue was whether it was robbery or theft and the jury was told that the other person present had admitted that it was robbery.
20.	That evidence went, as it seems to us, a very long way towards closing off the very issues which the jury was trying.  If the girl had made comprehensive admissions in interviews to both these offences but then for some reason had been missing at the trial, we doubt very much if the judge would have admitted evidence of what she said to the police in the trial of the appellant.  If she had made such admissions, had pleaded not guilty, had been tried together with the appellant and had not given evidence, we do not doubt the judge would have directed the jury to treat the contents of her interview as evidence in her case only and no evidence at all for or against the appellant.  However, the evidence the judge did admit had very largely the same effect as would have been achieved in either of those situations.  
21.	We have been left in some doubt as to whether the judge's cautious direction to the jury which we have cited means that he misstated to himself what the conviction went to prove or, on the other hand, demonstrates that he was conscious that the admission of the conviction was dangerous in that it might be taken to mean that the appellant must be guilty also.  But what we are quite satisfied of is that by administering the self‑direction that he did in his ruling and then its equivalent in the ruling to the jury he avoided properly balancing under section 78 the pros and cons in terms of fairness of admitting the conviction.  
22.	We have referred to the potential unfairness of admitting the conviction.  We need to address the question of whether there were powerful countervailing reasons why it should be admitted.  We conclude that there was really no occasion for it at all.  There was no need to put in this conviction to show that there was a theft; that was admitted by the appellant.  The judge appeared to advert to the advantage to the jury of knowing what the co‑defendant's position was.  That, we anticipate, is perhaps a reference to the difficulties which can sometimes arise if juries worry about why somebody who is an obvious defendant is not there to be tried by them.  It is an argument sometimes referred to as the desirability of demystifying the position for the jury.  The demystification argument is, as it seems to us, always a dangerous one.  It did not, however, arise in this case.  The jury could perfectly well have been told, and probably by consent, that the girl had already appeared in court for her part in the incident and that it was not concerned with her.  Other formulae might have been agreed.  It did not need to have added that she had admitted not only theft, but robbery and the presence of a gun.  This evidence was likely to be taken by the jury as extremely powerful.  It was likely to be taken to carry the implication that the appellant must be guilty also.  That conclusion was likely to be arrived at without the jury hearing the evidence of the girl tested and without anyone being in any realistic position to address possible reasons why she might have pleaded guilty, whether she was or not.  Defendants do sometimes admit what is not true.  There is perhaps a especially risk of that in persons such as this girl who was a drug addict and a prostitute.  She was likely to have frequent contact with the police.  She was in need of a quiet life.  Her case was no doubt going to be, and it may well be that it would have been accepted as being, that she was but the merest pawn in the hands of the appellant.  She might well have expected that she would be dealt with comparatively leniently.  She may have other reasons for what she chose to do.  It is certainly to be noted that she could not make up her mind what she was going to do for some considerable time.  
23.	We are well aware that this court will not reverse a judge's decision under section 78 unless satisfied either that it was one that he could not reasonably have come to or that he proceeded on a false basis.  In this case we are sure that the judge did proceed on a false basis because he appears to have assumed that the conviction did no more than prove the girl had admitted the offence and not that it was evidence that she had done it.  Moreover, there is no sign that he addressed the considerable power of the evidence and set about balancing the pros and cons as section 78 requires.  That, as it seems to us, is sufficient distinction between this case and the superficially similar case of R v Stewart (unreported) 27th November 1998, the facts of which may well, for all we know, have justified the conclusion there reached, that the convictions could safely be admitted on a proper balancing and with a proper direction to the jury.
24.	In the present case the judge alternatively admitted the evidence of the pleas of guilty under section 114(1)(d) of the Criminal Justice Act 2003 ‑ that is to say as hearsay evidence.  We accept, contrary to Mr Farmer's submission, that the judge did address the various considerations set out in section 114(2).  We also accept that in strict legal terms section 114(1)(d) is sufficiently wide to allow a judge to admit the evidence of a co‑defendant's plea of guilty.  What section 74 always did was to make admissible something which would otherwise have been hearsay.  
25.	However, for the same reasons that we have already given in relation to section 74, we are quite satisfied that the judge's conclusion that the admission of the pleas of guilty was in the interests of justice ‑‑ which is the acid test for section 114 ‑‑ was flawed in the same manner as his decision under section 78.  We should add that in ruling under section 114 the judge said this: 
"The only issue is that any possible motive cannot be cross examined by the defence but in fact the defence can easily seek to correct the picture simply by giving evidence.  The rest can be cured by strict warnings."  
26.	The defence, in reality, did not realistically have any chance of giving evidence about the girl's motive.  Secondly, the judge, though he may have intended in due course to administer strict warnings to the jury about the difficulties faced by a defendant who could not test the out‑of‑court statement of the girl, did not in fact ever do so.  In those circumstances this evidence could not properly be admitted under section 114 either.  
27.	We accordingly come to the conclusion that this important evidence was wrongly admitted before the jury and for those reasons this conviction must be quashed.  
28.	We observe that the trial judge's job was made more difficult by his being asked to consider the admission of these pleas of guilty before the case was even opened.  We understand, of course, that it is often convenient for those conducting a trial to know at the earliest possible opportunity what evidence is going to be admitted and what is not.  Sometimes we agree such decisions can properly be made in advance of the opening.  However, particularly in a case of evidence of this kind where so much depends upon what the issue turns out to be for the jury, we venture the general thought that it will very often be helpful to wait at least until the principal lay evidence has been given and cross‑examined and the issues have more clearly emerged.  Had that happened in this case, it may be that the judge would not have fallen into the error which we have had to hold that he did.
29.	There is a second ground of appeal relating to the admission of evidence of the previous convictions of the appellant as bad character evidence under section 101 of the Criminal Justice Act 2003.  Leave to argue that ground was refused by the single judge.  On the view which we take of the principal ground it does not arise.  We think, however, that we should say, lest the contrary assumption be made, that, like the single judge, we are unable to see that the judge's exercise of his discretion in relation to that matter can properly here be criticised.  The issue in the present case was whether the appellant used the force on the victim that he admittedly did as a party to a robbery or whilst scrupulously refusing to have anything to do with taking the man's money.  The appellant has convictions for a number of offences of theft, in some cases combined with assault and threats to those who had caught him.  Those were offences comparatively recently.  He also had in 1988 a conviction for conspiracy to rob which had involved the possession of a firearm.
30.	Mr Farmer has referred us to a decision of this court in R v Michael Murphy [2006] EWCA Crim 3408 in which a 20‑year‑old conviction for possession of a firearm was held incapable alone of giving rise to a propensity to possess firearms when a similar offence was charged 20 years later.  Whilst we can see that different views might be taken by different judges about the admission of the old conviction of conspiracy to rob and possession of a firearm in the present case, it is perfectly plain to us that the situation in Murphy was different to this case.  This was a defendant of whom it could properly be said his convictions demonstrated a propensity to steal and to use violence where necessary.  We would not, accordingly, have felt it open to us to interfere with the judge's decision on that matter and if the case falls later to be considered again the trial judge must make his own mind up about the question of the admission of bad character.  However, for the reasons which we have given, the appeal is allowed and the conviction is quashed.  Mr O'Donnel? 
31.	MR O'DONNELL:  Mr Lords, I invite the court to order a retrial. 
32.	LORD JUSTICE HUGHES:  It is a question of the public interest, is it not? 
33.	MR O'DONNELL:  Yes, it is a very serious allegation. 
34.	LORD JUSTICE HUGHES:  Quite.  Mr Farmer?
35.	MR FARMER:  Can I just mention that I think your Lordship may have referred to previous conviction as 1998; it is 1988. 
36.	LORD JUSTICE HUGHES:  If I did I will correct it.  Thank you.
37.	MR FARMER:  Obviously I am not stupid, I can see the application coming.  I would simply pray in aid, as it were, for your consideration that there is as a matter of fact by reason of the vagaries by which the co‑defendant's plea came and went ‑‑ this was the third time it was listed for a trial, and the defendant, through no fault of his own whatsoever, was brought to the point of just about to start trial, all geared up to go.  On the one hand it is serious, on the other hand it is pretty agonising to keep bringing him back.  I am not talking about the situation of being through a trial and the jury not agreeing.  It was all connected with the comings and goings of what the co‑defendant was or was not going to do; so he has been put through quite a bit already.  It is a consideration for the court, in my submission. 
38.	LORD JUSTICE HUGHES:  Thank you very much. (Pause) We are satisfied that the interests of justice require a retrial.  We direct that a fresh indictment be preferred within two months.  The case is to be tried at the Crown Court at Norwich or at such other location as the presiding judges of the South Eastern Circuit direct and he must be arraigned within two months unless this court says otherwise.  Is there any other application? 
39.	MR FARMER:  My Lord, what does the court say about bail? 
40.	LORD JUSTICE HUGHES:  What is the present position?  
41.	MR FARMER:  The present position is obviously he is in custody serving an IPP for the underlying sentence of three years and 18 days. 
42.	LORD JUSTICE HUGHES:  On the basis of six years?  
43.	MR FARMER:  Sorry?
44.	LORD JUSTICE HUGHES:  That is the half figure, is it?
45.	MR O'DONNELL:  Four years. 
46.	LORD JUSTICE HUGHES:  Four years less 347 days; so in other words a hypothetical eight‑year sentence.
47.	MR FARMER:  He has now been in custody for well over a year. 
48.	LORD JUSTICE HUGHES:  What had been the position prior to trial? 
49.	MR FARMER:  He had been in custody; that is how he has the time in custody.  He has been in custody from his arrest, which was that night, which date at the moment escapes me. 
50.	LORD JUSTICE HUGHES:  He is 42/43.  WE have his previous convictions; it looks like something like 60 previous appearances.  Is that right? 
51.	MR FARMER:  It may be. 
52.	LORD JUSTICE HUGHES:  Mr O'Donnell? 
53.	MR O'DONNELL:  Fear of committing further offences, interfering with witnesses, if he can. 
54.	LORD JUSTICE HUGHES:  I am afraid not, Mr Farmer, he must remain in custody in the meantime.  Representation order for solicitors and junior counsel, Mr Farmer, for the retrial.