Downer, R. v

On 10 June 2009 we allowed the appeal against conviction of Tryone Downer and directed that he be retried. We now give our reasons.

On 24 September 2008 in the Crown Court at Croydon before Judge Ainley and a jury Downer was convicted of aggravated burglary. He was later sentenced to five years detention in a young offender institution less 265 days he had spent on remand.

The issues on the appeal, which was with leave of the single judge, arose out of the judge’s admission of the co-defendants’ pleas of guilty.

The facts of the offences were in summary as follows. The appellant and the co-defendants are from Shepherds Bush in West London. James Adams, a drug user, lived in a flat in Sutton. He did not have a bank account and dealt largely in cash. On 15 April 2008 he was planning to move and his sister was helping him to clean up his flat. The appellant and the two co-defendants, Omisore and Broom went to Adams’ premises and gained entry to his flat through the front door. The co-defendants were the first two in. Adams confronted them with a cosh. The appellant ransacked the bedroom and the lounge to see what he could find. During the burglary the co-defendants had a machete and a black handled knife. There was an attempt to extort money from Adams.

When the police arrived the appellant and the co-defendants were in Adams’ bedroom. The machete and the knife were seized by the police. Broom’s fingerprints were on the handle of the machete and the blade of the knife. So were the fingerprints of others, but not the appellant or Omisore. Adams had drug paraphernalia and a safe on the premises and a cosh by his bed. The place smelt of cannabis. When arrested and interviewed the appellant said “no comment.”

The prosecution case against the appellant was that he went to Adams’ address with his co-defendants and that they were armed with the machete and the knife in a joint enterprise. The appellant’s case was that Adams was a drug dealer who had taken their money but failed to supply the drugs, and they went to get either the drugs or their money back. He never saw any weapons prior to or during the burglary and had no idea that weapons were involved. It was possible that the weapons were already at the flat and were picked up by his co-defendants. At the relevant time he was in different rooms from the co-defendants, searching for items to steal.

The grounds of appeal are in summary:

The indictment as originally drawn charged all three defendants with aggravated burglary contrary to Section 10(1) of the Theft Act 1968, the particulars of offence alleging that having entered the premises as trespassers they attempted to steal therein and at the time of committing the burglary had weapons of offence namely a machete and a knife.

Section 10(1) of the Theft Act 1968 provides that a person is guilty of aggravated burglary if he commits any burglary and at the time has with him a weapon of offence etc. Burglary itself is defined in the previous section which describes two different types of burglary. The first, under s.9(1)(a), is entering a building or part of a building as a trespasser with intent to steal or commit another defined offence. The second, under s.9(1)(b), is having entered the building or part of a building as a trespasser committing or attempting to commit a theft or any of the other defined offences.

There are, therefore, within the s.10(1) two distinct types of aggravated burglary depending on which type of burglary was committed. Which it is, will emerge in the particulars of offence indicted (see Archbold 2009 Edition 20 – 130.) In the present case the original indictment charged an aggravated s.9(1)(b) type burglary against all three defendants. The two co-defendants pleaded guilty but the appellant pleaded not guilty.

Each of the co-defendants advanced a specific basis of plea in writing. Not everything in the bases of pleas is relevant to the present appeal. However, the following is. Broom contended that when he entered the premises he was not in possession of any weapon and as far as he was aware neither was Omisore or the appellant. He grabbed a kitchen knife to protect himself against Adams who was wielding a cosh. When he returned from the kitchen Adams had put down the cosh and one of the co-defendants was holding a machete which, as far as he was aware, had been picked up in the flat. Omisore contended that when he entered the premises he was not in possession of any weapon. On entering he saw Adams wielding a cosh and picked up a weapon to defend himself.

The prosecution was not prepared to accept the bases of plea and that remained the position at the time of the appellant’s trial. It was left to the judge to decide, having heard the evidence in the appellant’s trial, whether a Newton hearing was necessary. In the event no Newton hearing ever took place because the prosecution could not secure the attendance of the necessary witnesses. The co-defendants were therefore eventually sentenced on the bases on which they had pleaded guilty.

Before the appellant was tried the Crown sought and obtained leave to amend the indictment against him. The problems in this case stem from this. The new indictment contained two counts. The first was aggravated burglary under s.10(1) and the second simple burglary under s.9(1)(a). The appellant’s plea of guilty to the second count was not accepted by the prosecution. By the amendments the Crown’s case shifted from s.9(1)(b) type aggravated burglary to s.9(1)(a) type aggravated burglary. The particulars of the count on which the appellant was tried now alleged that he entered the premises with the weapons rather than had them inside when he was trying to steal. The particulars alleged that the appellant, with others, entered the premises as a trespasser with intent to steal and at the time of committing the burglary had with them weapons of offence namely a machete and a knife. So, said the Crown, this was a joint enterprise in which all three went to the premises armed with weapons.

We have considerable sympathy with the judge who acquired this case as a floater and accordingly would have had little time to read the papers in advance of the prosecution’s applications to amend the indictment and adduce the pleas of the co-defendants under Section 74 of the Police and Criminal Evidence Act 1984.

When the prosecution sought to amend the indictment Mr Capon, for the prosecution, said, in the context of the new indictment, that the only issue was whether the appellant was part of a joint enterprise as far as the weapons of offence were concerned.

Section 74(1) provides:

“In any proceedings the fact that a person other than the accused has been convicted of an offence by or before any court in the United Kingdom…….shall be admissible in evidence for the purpose of proving that that person committed that offence, where evidence of his having done so is admissible, whether or not any other evidence of his having committed that offence is given.”

Section 75(1) provides:

“Where evidence that a person has been convicted of an offence is admissible by virtue of section 74 above, then without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based –

(a)

the contents of any document which is admissible as evidence of the conviction, and

(b)

the contents of the information, complaint, indictment or charge sheet on which the person in question was convicted

shall be admissible for that purpose.”

The argument before the judge focussed not so much on whether the co-defendants’ pleas should be admitted but on whether the jury should be told the bases of them. As Mr Frame, for the appellant, put it:

“If the jury were aware that there was just the guilty plea, then they would inevitably end up speculating about the guilty plea and the guilty plea being on the full facts.”

In the event the judge ruled the co-defendants’ pleas could be admitted under s.74 but that “if you want to say that the facts of the case are those which are contended for by the other defendants in their bases of plea, then they have got to be called, unless the prosecution accept those bases of plea.”

No one appears to have had in mind when the application to admit the pleas was made that the offence to which the co-defendants had pleaded guilty was a s.9(1)(b) type aggravated burglary and that the charge that the appellant was then facing was s.9(1)(a) type aggravated burglary. How, we ask, does it help to prove the Crown’s case against the appellant that all three went into the premises armed with the machete and the knife in a joint enterprise, that the two co-defendants had admitted having the weapons when attempting to steal once they were in the premises?

It has been repeatedly stated in the authorities that where a conviction is admitted under s.74 its effect is by the terms of the statute that the person convicted did commit the offence to which he pleaded guilty. As Hughes L.J put it in R v Smith [2007] EWCA Crim 2105 at para 13:

“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 only evidence that she had pleaded guilty but that she was guilty.”

Under s.75(1) the contents of the indictment are admissible as evidence of the facts on which the conviction was based. Had the indictment to which the co-defendants pleaded guilty been put before the jury the particulars of the offence would have made it plain that what the co-defendants had admitted and pleaded guilty to was a s.9(1)(b) type aggravated burglary.

Mr Capon’s argument is that the offence of aggravated burglary is indivisible; he relies on the wording of s.10. It does not matter that it can be committed in more than one way; there is just one offence of aggravated burglary. But his argument overlooks the fact that in order to find out what constitutes a burglary you have to go back to s.9 where the two types are described. We cannot accept Mr Capon’s argument. Were Mr Capon’s argument correct it would make no difference if the appellant was charged with going armed into the premises as a trespasser with intent to steal whereas the co-defendants went into the premises as trespassers armed themselves with weapons once inside and then caused unlawful damage to the building. On Mr Capon’s argument all would be guilty of the same offence of aggravated burglary. Although the co-defendants have pleaded guilty to an aggravated burglary at the same premises and on the same date as the one with which the appellant was charged, it is not the same offence.

The appellant did not dispute that he burgled the premises. Indeed he tendered a plea to the second count in the indictment to that effect. The question arises whether the co-defendants’ pleas had any probative value in the case against the appellant. He admitted a s.9(1)(a) burglary. The only issue was whether he entered with the machete and the knife either himself or as part of a joint enterprise with his co-defendants. It is difficult to see that the co-defendants pleas had any probative value against the appellant on that issue. It seems to us, however, that the more important point is the prejudicial effect to the appellant of admitting the pleas in evidence.

As Hughes L.J pointed out in Smith there is a line of cases beginning with R v O’Connor [1987] 85 Cr App R 88, helpfully distilled in R v Kempster [1990] 90 Cr App R 14 by Staughton L.J. They illustrate that s.74 should be sparingly applied because the evidence that a now absent co-defendant has pleaded guilty may carry enormous weight with the jury but 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 was also. Hughes L.J said that in both these situations the court needs to consider with considerable care whether the evidence of the conviction would have a disproportionate unfair effect upon the trial. Those circumstances have to be contrasted with those in which a co-defendant’s evidence can properly be admitted to show the offence did occur, leaving the jury independently to consider whether the guilt of the present defendant is additionally proved. He added at para 17:

“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.”

And at para 18:

“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.”

Now the potential damage to the appellant in the present case was the jury’s knowledge that the co-defendants had committed an aggravated burglary. The issue for the jury was whether they were sure the appellant went in to the premises armed with a machete and a knife as part of a joint enterprise with the co-defendants. The co-defendants never admitted possession of the weapons before they went in; nor did their pleas imply that they had. Even if it was made clear to the jury that the co-defendants had pleaded guilty to a different offence (a s.9(1)(b) type aggravated burglary) it was going to be easy for the jury to jump to the conclusion that they must all have had, or been aware of, the weapons when they entered.

Even if the co-defendants’ pleas to a different form of burglary had any probative value against the appellant we think there was a strong case for refusing to admit the pleas under Section 78 of the Police and Criminal Evidence Act 1984 on the ground that their admission would have such a adverse effect on the fairness of the proceedings that they ought not to be admitted.

What in the end, however, in our view proves fatal to the conviction in the present case is the manner in which the judge summed the case up. He drew no distinction between the offence to which the co-defendants had pleaded guilty and the offence with which the appellant was charged. Indeed, he treated them as one and the same. He said at 6 D:

“Another matter that I must bring to your attention is this. You know that the other two people with whom he is jointly charged have pleaded guilty to aggravated burglary, the very offence with which he is charged. The only reason you have been given that information is because it is evidence that goes to prove that that offence was actually committed and that those two men committed it.”

The reference to “the very offence with which he is charged” suggests the co-defendants had pleaded guilty to an aggravated burglary that involved taking the machete and the knife into the premises, but they had not.

The error is compounded at 7 D when the judge says the essence of the prosecution’s case is an aggravated burglary in which the three were jointly involved and it was a burglary with weapons. He follows this with reference to the particulars of the offence for which the appellant was being tried. Then at the bottom of page 7, he gave the standard direction on joint enterprise, and he said at 8 F:

“Let’s say he knew while they were on the way to the scene that the other two were tooled up with those weapons and carried on taking part in the burglary, then plainly he would be guilty because he had the intention that the offence should be carried out and he took some part in it. It could be a different way of course. He might not have known until he was at the premises that there were weapons (that) were going to be used, but knowing that they were being used he then carried on and merrily goes into the other rooms and starts burgling them. Likewise, he would be guilty because he knows an aggravated burglary is going on and he takes part in it whilst the owner is being terrorised by the weapons.”

This illustrates that the judge is drawing no distinction between the two types aggravated burglary, the one to which the co-defendants had pleaded guilty and the one for which the appellant was being tried.

At page 14 the judge refers to the confrontation outside the bedroom pointing out that all were agreed the other two defendants were the first two in and that they were the two holding the weapons. The judge then says:

“As you know they pleaded guilty to aggravated burglary. Now the defendant says: “yes I was ransacking another room and the lounge but I never saw the weapons.” That of course is a central issue for you to decide. Is that or may it be true?”

Mr Capon accepts that the conviction can only be upheld if the court accepts his submission that aggravated burglary is but one offence and it matters not that the co-defendants pleaded to the s.9(1)(b) version while the appellant was being tried for the s.9(1)(a) version. As we have explained, we are unable to accept Mr Capon’s argument.

If the jury was left with the impression, which they may well have been from the way in which the judge summed the case up, that the co-defendants had pleaded guilty to taking the machete and the knife into the premises it is difficult to see how the appellant was not likewise guilty. It was common ground that all three went to the premises together and it would have been difficult, if not impossible, for the machete at any rate, to have been concealed from the appellant.

Returning to the grounds of appeal, the argument before the judge never really dealt with whether the pleas should be admitted under s.74, but rather with whether the jury should be told the bases of them. In our view it would have been helpful to concentrate on the fact that the co-defendants had pleaded guilty to a s.9(1)(b) type aggravated burglary whereas the appellant was charged with a s.(9)(1)(a) type aggravated burglary. The particulars of offence in each case demonstrated this. Had this been done there would have been a proper debate about the probative value, if any, of the co-defendants’ pleas.

Argument about the jury being told the bases of the co-defendants’ pleas was something of a red herring. What the jury needed to know , if the pleas were admitted in evidence, was the particulars of the offence to what the co-defendants had pleaded guilty (admissible by virtue of s.75). Where a co-defendant has pleaded guilty on a basis that the court has not accepted, it seems to us that if the plea is admitted in evidence against a co-defendant it is necessary, absent an admission, to call that co-defendant if it is desired to establish any departure from the particulars in the indictment to which he has pleaded guilty. However, it is unnecessary to decide this to determine the outcome of the present case.

As to the third ground of appeal, we think the pleas should have been excluded under s.78 of the Police and Criminal Evidence Act 1984, an error which was exacerbated by the way the judge dealt with them in his summing up.

This case, in our view, went down the wrong track when the prosecution sought and obtained leave to amend the indictment. Had the appellant been tried for the same offence to which the co-defendants had pleaded guilty their pleas would have been properly admissible and the issue would have been whether the appellant was a party to a joint enterprise with the weapons inside the property when the attempt to steal took place. Unfortunately it was not and a simple case became over complicated. The conviction in our view is not safe and accordingly we allowed the appeal.