April 2
L saw his friend, the victim, being hit by a car and identified the defendant as the driver. L told his father, B, the defendant had been the driver and they provided witness statements to the police. The defendant was charged with attempted murder, causing grievous bodily harm with intent and attempting to cause grievous bodily harm with intent. He rang L to tell him to alter his witness statement and his co-accused, R, contacted B to tell him to do the same. The defendant then contacted B to tell him to withdraw his witness statement. The defendant was charged with and pleaded guilty to conveying a list-B article into or out of prison and eight counts of the unauthorised transmission of an image or sound by electronic communication from within a prison (“the telephone offences”). He and R were charged with an offence of conspiracy to pervert the course of justice, contrary to section 1 of the Criminal Law Act 1977 (count 5). R pleaded guilty to count 5 on the first day of the trial. At trial, the defendant admitted phoning L and B but said (i) he did not know what R had been saying or doing when he contacted them; and (ii) he rang them to make sure they told the truth, namely that he had not been driving the car when it struck the victim and that they were not pressured into implicating him falsely. L and B were cross-examined on the basis that they were lying about what they claimed the defendant had said in the telephone calls. It was the Crown’s case that the defendant had conspired with R to persuade L and B to alter their evidence or avoid testifying. The defendant had abandoned his mobile telephones and replaced them with new devices, one of which he smuggled into prison following his arrest. There was evidence that the defendant had used two telephones from prison to contact L and B. The judge permitted the Crown to introduce R’s plea to conspiring with the defendant to pervert the course of public justice by interfering with the witnesses in the case, pursuant to section 74(1) of the Police and Criminal Evidence Act 1984. He sought to limit the evidential impact of the evidence in his directions. The defendant was acquitted of attempted murder and the causing grievous bodily harm offences but convicted of the telephone offences. He was convicted of count 5 and sentenced to three years’ imprisonment, with a consecutive term of nine months’ imprisonment for conveying a list-B article and concurrent sentences for the telephone offences. He appealed against conviction on the ground that the judge had erred in admitting the evidence of R’s guilty plea in a closed conspiracy consisting solely of himself and R. That would have caused the jury to conclude, however directed, that R’s plea demonstrated the defendant’s guilt. The defendant also appealed against his sentence of nine months’ imprisonment for conveying a list-B article and for the telephone offences, on the ground that the starting point for time served for the telephone offences should have been the date of his arrest and remand in custody, because the telephone offences were related offences, pursuant to section 240Z of the Criminal Justice Act 2003 vis-à-vis the counts on which he was acquitted.
On the appeals—
Held, (1) Appeal against conviction allowed. The introduction of R’s plea would have tended significantly to close down the central issue in the case which was whether the defendant entered into the conspiracy with him. R could not have been guilty of the offence unless the defendant was guilty. The conviction was admitted into evidence along with the detail in count 5. Notwithstanding that the judge sought to limit the evidential impact of the evidence in his directions, there was a high risk that the jury would have concluded that R’s admission that he had conspired with the defendant meant that the defendant had conspired with him. Given the fact on which the conviction was based was that the defendants conspired together, the conviction proved that R and defendant were both guilty of conspiracy. On the facts, the judge’s attempt to limit the evidential impact of R’s plea to a discrete and subsidiary issue in the case was ineffective. As the defendant was acquitted of three other serious charges he would not necessarily have been convicted of count 5 had the jury not heard of R’s guilty plea. The important evidence of R’s conviction should have been excluded under section 78 of the Police and Criminal Evidence Act 1984 on the grounds that its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted (paras 22, 23, 24).
(2) Appeal against sentence dismissed. The test for joinder could not be cross-applied to section 240ZA which addressed the technical area of when and to what extent time spent on remand in custody should count towards a sentence of imprisonment. Under section 240ZA which should be interpreted literally an offence was related to another if it was founded on the same facts or evidence which was to be determined on the facts of the case. The telephone offences were properly joined by reason of having a common factual origin but were not founded on the same facts or evidence as the attempted murder and grievous bodily harm offences for the purposes of section 240ZA of the Criminal Justice Act 2003. The telephone offences commenced four months after the incident and were founded on evidence relating to the later period, involving separate incidents not of a similar character. The starting point for time served could not be counted from a date before the relevant offences were committed (paras 29–31).
Graeme Wilson (assigned by the Registrar of Criminal Appeals) for the defendant.
Nicola Moore (instructed by Crown Prosecution Service, Appeals Unit, Special Crime Division) for the Crown.