Finch, R v

LORD JUSTICE HUGHES: This appeal against conviction concerns the admissibility in evidence of the police interviews of a co-accused under two new statutory provisions. They are: (a) section 76A of the Police and Criminal Evidence Act 1984, and (b) section 114(1)(d) of the Criminal Justice Act 2003.

Section 76A was inserted into the 1984 Act by section 128(1) of the Criminal Justice Act 2003. It provides as follows:

Section 114 of the Criminal Justice Act 2003 for its part provides as follows:

What a co-accused said to the police out of court is plainly hearsay. It is a statement made otherwise than in oral evidence in the proceedings and it is made with the purpose that it shall be believed by the policeman to whom it is said. Thus it is hearsay within the definition of section 115 of the 2003 Act.

The two new statutory provisions to which we have referred have both been enacted through the same Part of the 2003 Act, that is to say Part 11. They are part therefore of the same statutory process. There is, however, an important difference between the two provisions. Whereas section 76A of the Police and Criminal Evidence Act makes a confession of a co-accused admissible unless it is excluded on grounds of oppression or of equivalent unreliability, such a confession can only become admissible under section 114(1) if the court is satisfied that it is in the interests of justice for it to be admitted.

Both sections were brought into force, together with the other hearsay provisions of the 2003 Act, on 4th April 2005. By section 141 of the 2003 Act they do not apply to any criminal proceedings begun before that date. This trial took place in April 2006 and accordingly both new provisions applied to it.

In the present case, the indictment originally charged this appellant, together with a co-accused called Richer, with joint offences of possession of a prohibited firearm and of ammunition. Richer pleaded guilty. This appellant was thus tried alone. The appellant sought to put in evidence the police interviews with Richer. The judge ruled that the interviews were not admissible under section 76A because Richer was not being tried together with the appellant. He held that application could properly be made to admit them under the hearsay provisions of section 114(1)(d), subject to the rules contained in that section. Subsequently, however, on consideration of that application, he ruled against it on the ground that Richer was available to give evidence and it was thus not in the interests of justice for his hearsay statements to be admitted.

The appellant and Richer both live in Rugby. At about 9.30 on the evening of 6th December 2004 they were stopped in a Mercedes motorcar northbound on the M20 at Maidstone. They had just visited a service station where both of them had got out of the car. Richer was driving and Finch was in the front passenger seat. The front passenger seat in which Finch was sitting was fitted with a sliding drawer underneath it, which slid forwards into the footwell when you opened it. Inside the drawer wrapped in a plastic bag there was a 9mm self-loading pistol with a loaded magazine in place. Two of Richer's fingerprints and one of Finch's were found on the bag. Both defendants initially refused to say where they had come from or where they lived.

Finch when he was interviewed said that he had visited Richer the previous evening back in Rugby and had been asked by him to come for a ride to Maidstone where, he said, Richer had said he had got someone to meet. They had, according to Finch, set off more or less immediately after the invitation was given and accepted. Finch said that he had not at any stage asked why they were going or indeed where they were going, nor how long they might be and this despite the fact that it had seemed to him that Richer was "a bit bothered". Said Finch to the police, he had no idea there was a gun in the car, nor why they had gone all the way they had, nor even whose the car was, because it was not Richer's, as he knew. Finch said to the police that he had been groggy from a previous night's drinking. When he was told about the fingerprint on the plastic bag containing the gun, he said that he might easily have touched anything that had been in the footwell or under the passenger seat because at varying times they had had drinks, cigarettes, sandwiches and the like in the footwell and he had eaten some and passed others to the driver. He was, however, unable to explain how he could have touched the bag inside a closed drawer unless it was protruding from it. The evidence of the policeman who found the gun was that the drawer was fully closed with its leading edge flush with the front of the seat and no part of the bag was visible. It remained, however, Finch's case at trial that he had had no idea that there was a gun in the car; he was simply accompanying his friend on the run out. That was the issue at the trial.

When Richer had been interviewed by the police, he had told them that he had been sent on an errand to deliver the gun by a man to whom he owed money and of whom he said he was very frightened. He said that he had been told to take the gun to a service station at Maidstone but that when he had got there whoever he had been meant to meet was not there. His account to the police was that he had then doubled back northwards and was thinking of jettisoning the gun when the police intervened. Richer told the police that Finch did not know that the gun was in the car.

We think that we should assume for the purpose of what follows that whatever part of Richer's police interviews Finch wished to adduce in evidence are properly described as "confession" within the meaning of section 76A. The contrary has not been argued before us. We do observe that what Finch wanted to adduce was not confined to Richer's admission that he (Richer) was knowingly carrying the gun. Indeed that was not the principal matter which Finch wished to adduce. That Richer knew about the gun was neutral on the question of whether Finch also knew about it. This, in other words, was not a case such as were Beckford and Daly [1991] Crim.L.R 833, or Myers (1981) Cr.App.R 153, in which the crime in question had been committed by either one defendant or the other. The issue in the present case was not either/or; it was one or both. What Finch really wanted to adduce was Richer's assertion that Finch was a mere innocent passenger. He also wanted some supplemental assertions of Richer which would have helped him to support that proposition, such as that he (Richer) was not acting in pursuit of any criminal enterprise beyond delivery of the gun and that they had bought food along the way.

We are conscious of the definition of "confession" in section 82 of the 1984 Act, that is to say as including "any statement wholly or partly adverse to the person making it". However, to accept (as we do) that a statement may remain a confession whilst partially exculpatory and partly inculpatory, is not the same as to say that everything which is said at the same time as an admission falls within the definition "confession". We accept in the present case for the purpose of argument that the assertion that Finch was an innocent passenger was in effect part of Richer's admission that he was carrying out a gun delivery alone. But we think that we should leave for another day and for full argument the broader question of when the contents of a co-accused's police interviews, which go beyond admission of the offence but in some way serve the interests of somebody else, remain within the meaning of the word "confession".

That said, the issue in this case is whether Richer, having pleaded guilty and not being before the jury, was "another person charged in the same proceedings (a co-accused)" so that his confession fell within section 76A. We are quite sure that he was not.

We agree with Miss Radcliffe that this question cannot necessarily be resolved by reference to the definition of "criminal proceedings" as used in various sections of the 2003 Act - in particular sections 112, 134, 140 and 141. In all those provisions that expression is defined as "criminal proceedings in relation to which the strict rules of evidence apply." Those last words of definition determined the issue in R v Bradley [2005] EWCA Crim. 20, 1 Cr.App.R 24 and also in R v H [2005] EWCA Crim. 2083, [2006] 1 Cr.App.R 4. In those cases the question related to the commencement of the bad character and hearsay provisions respectively of the 2003 Act. However, whilst it is true that the new section 76A was created by the 2003 Act, the statutory home into which it has been inserted is the Police and Criminal Evidence Act of 1984. That earlier Act of 1984 contains its own definition of "proceedings" in section 82, that is to say "proceedings means criminal proceedings..." (and it goes on to include those before courts martial). Accordingly, in the 1984 Act the words of qualification which appear in the various sections of the 2003 Act, which we have mentioned - "proceedings in relation to which the strict rules of evidence apply" - do not figure. Thus far, therefore, we are with Miss Radcliffe. Not however any further.

Irrespective of the use of the expression "criminal proceedings" in those sections of the 2003 Act, it has been well established law for many years that a defendant who has pleaded guilty and who is not on trial before the jury is not a "person charged with an offence" in the proceedings for the purpose of his status as a witness. Section 1 of the Criminal Evidence Act 1898, in this respect unaffected by the modification which was made of it in 1984 to deal with the position of spouses, has always provided that "a person charged in criminal proceedings shall not be called as a witness in the proceedings except upon his own application." A defendant who has pleaded guilty has long been held not to fall within that expression. Such a person is therefore a compellable witness for any remaining defendant who is on trial - see R v Boal [1965] 1 QB 402 and R v Conti (1974) 58 Cr.App.R 387. In enacting section 76A, Parliament must plainly be taken to have known and applied this well established proposition of law. Having pleaded guilty, Richer was no longer a person charged or accused in the proceedings which were afoot, namely the trial of Finch. For the same reason, Finch was not charged in the same proceedings as Richer. Therefore section 76A did not apply and what Richer said to the police was not admissible under that section.

We are fortified in that conclusion by consideration of what was the plain purpose of section 76A. It was enacted following the recommendations of the Law Commission in Consultation Paper No 245, and it was enacted to put the law onto a proper footing following the difficulties which had been exposed by Beckford and Daly (supra), Campbell and Williams [1993] Crim.L.R 448, and the decision of the House of Lords in Myers (supra). The plain purpose of the new section was twofold. First it was to put into statutory form the rule in Myers that defendant A in a joint trial could not only cross-examine defendant B on the latter's confession if B gave evidence, but could also adduce the confession even if B declined to go into the witness box. Secondly, it was to provide for B against A the same protection that he would have had against the Crown if the confession had been obtained by oppression or as a result of anything said or done which was likely to render it unreliable. The new rule, and for that matter the decision in Myers, were designed to meet the problem faced by defendant A who, if charged in the same trial as B, could not call B into the witness box because section 1 of the 1898 Act prevents B from being called except on his own application. That obstacle, however, does not exist except where A and B are tried together. It does not exist once B has pleaded guilty. A can then call B and B is compellable. Nor, now that section 114(1)(d) of the 2003 Act provides the court with an overriding power to admit hearsay evidence if the interests of justice require it, can it any longer be said that A needs to be able to rely on either Myers or section 76A to get relevant evidence before the jury even if B is unavailable or for some other reason his evidence cannot be given orally. As we have already said, the creation of section 76A and the new provisions of section 114 are part of the same statutory process.

Miss Radcliffe urges on us that the confession, as she describes it, of Richer is the more cogent when Richer has pleaded guilty and, as she says, stood by it. It is no doubt true that he had pleaded guilty without resiling from his acceptance of responsibility and for that matter of sole responsibility. It may be that certainly in a case in which a criminal act must have been committed by either A or B, it could properly be said that the plea of guilty of B adds enormously to the weight of his previous confession. It is not quite the same, of course, where the case is not one of either A or B but of whether it is A plus B or A alone. In the latter case, of which this is an example, it is not in the least unlikely that one defendant may wish falsely to exonerate the other.

If section 76A had the meaning for which this appellant contends the jury would be presented with out of court assertions made by persons who had once been charged in circumstances where there may be every likelihood that they will not be reliable and would be deprived of any means of testing their veracity or reliability even though the maker was available to give evidence. That consequence would be highly undesirable. It is in no sense necessary, given the provisions of section 114, and we are quite satisfied that it is not what Parliament meant to achieve.

We should add, though it is not in those circumstances necessary for our decision, that if that were not the law there would be very considerable difficulties in deciding who was and who was not included within the expression "person charged in the same proceedings". Miss Radcliffe's initial submission to us was that anybody who had been charged with any offence arising out of the same investigation as the man on trial came within that expression. On reflection we understood her to accept that it might be necessary to curtail the ambit of that proposition to some unspecified extent and once that is accepted we see enormous difficulties in arriving at any sensible test of the expression. However, that does not arise because we are quite satisfied that the meaning is that which we have explained.

The appellant made alternative application to adduce the contents of Richer's police interviews under this section. The Crown arranged for Richer to be produced at court and he was present. The judge was told that he was reluctant to give evidence. He may have had his solicitors present at court - he certainly had been represented. The judge was either shown or told about a letter which had been written by his solicitors some time beforehand and he was told that Richer declined to see Finch's representatives. The letter indicated that Richer had been advised not to give evidence because, as it was suggested, he did not wish to jeopardise his position so far as sentence was concerned and the letter said that he would refuse to answer questions on the grounds that they might incriminate him further, having already pleaded guilty. There was a reference in the letter to his having pleaded guilty on a basis. This was not a case in which any written basis for plea had been advanced, still less accepted, and had there been an assertion as to something falling short of the defence of duress but amounting to pressure to commit the offence, it is likely that there would have had to be some kind of fact-finding hearing in the case of Richer.

However that may be, the judge indicated that he was not satisfied with that bare assertion. After time for consideration, Miss Radcliffe declined to call Richer. The judge had plainly contemplated that Richer should be put into the witness box so that his reaction could be judged before any question arose of his out of court statements being admitted. He seems to have contemplated Richer being called for that purpose immediately before the jury. A possible alternative preliminary might have been to apply to call him into the witness box in the absence of the jury to explore his reaction and the legitimacy (if any) of his stance, but no application to do that was ever made. Instead, the appellant stood on the proposition that to call him when he was reluctant to give evidence, or (in the useful colloquial expression) blind, was something that could not be expected of him. Thus the judge had to resolve without hearing Richer the question whether the interests of justice required his out of court assertions to be adduced as hearsay.

The judge worked through the relevant factors set out in section 114(2). He accepted that the evidence was, if true, of substantial probative value. He was plainly well aware that the assertion went to the heart of the defence of Finch and that there was otherwise only the evidence of Finch himself, so that the assertion was of considerable importance to the case as a whole. He concluded, however, that oral evidence of what Richer said about Finch was available to be given. He was unable to see how Richer could damage his own position by giving evidence that Finch was an innocent passenger. He also considered, in reference to sub-paragraph (e) of section 114(2), the potential unreliability of Richer if he was not prepared to support in the witness box what he had said to the police. He correctly addressed the difficulty for the Crown of controverting or challenging Richer's assertion if Richer were not in the witness box to make it. His conclusion was that the interests of justice did not call for the interviews to be admitted as hearsay. Plainly in reaching that conclusion the principal factor was the fact that Richer was available to give oral evidence if compelled to do so, together with the various consequences which that entailed.

This was a situation calling for the exercise of the judgment of the trial judge. This court will interfere if, but only if, he has exercised it on wrong principles or reached a conclusion which was outside the band of legitimate decision available to him. We are unable to see that his decision can be criticised on either ground. We do accept that there are some difficulties for an appellant and his counsel in this situation when faced with a potential witness who is reluctant to give evidence. Richer would not of course have been called entirely blind. There may not have been a recent proof of evidence but there were the interviews with the police, properly recorded, available as an indication of what he could say. Had he in evidence not supported them it would have been open to Miss Radcliffe to seek to treat him as adverse and, had that been done and his previous inconsistent statements put to him, the latter would under the modern law have stood as evidence of any matter stated in them - see section 119 of the new Criminal Justice Act 2003. We understand, nevertheless, that an appellant might well decide, as this one did on advice, that calling such a witness was a risk that he was unprepared to take. It does not, however, follow that wherever that happens the interests of justice call for the admission in evidence of something which the reluctant witness has said out of court but is not prepared to support on oath. On the contrary, the reluctance only undermines the reliability of the evidence. We agree with the judge that in this case Richer's refusal to give evidence voluntarily plainly carried the suggestion that he was anxious that he would not be believed. Whether he was anxious that he would be disbelieved about the role of Finch or about his own role or about both we cannot tell, and nor could the judge, but either way his credibility was put severely in question by his reluctance to enter the witness box. We should say that we reach that conclusion without examining in detail what are said to be several doubtful features of Richer's assertions which exonerate Finch. In the end, had his evidence been before the jury those criticisms of what he said would have been, we accept, for the jury.

Whatever might be the situation if an erstwhile co-accused were to be unavailable or had demonstrably good reason not to give evidence, it will, as it seems to us, often not be in the interests of justice for evidence which the giver is not prepared to have tested to be put untested before the jury. It is not in short the law that every reluctant witness's evidence automatically can be put before the jury under section 114. We are satisfied that in this case the judge was right on both issues and this appeal must in consequence be dismissed.