Leslie & Anor v R [2025] EWCA Crim 1045:
No Judicial Discretion to Exclude Strictly Relevant Co‑Accused Confessions

1. Introduction

This commentary examines the Court of Appeal (Criminal Division) decision in Leslie & Anor v R [2025] EWCA Crim 1045, a case that re‑affirms and sharpens an important principle in criminal procedure: a trial judge has no common law discretion to exclude relevant confession evidence which a co‑accused seeks to adduce, merely because that evidence may be prejudicial to other defendants. Instead, the admissibility threshold is one of “strict relevance”, and any prejudice must be controlled by directions or, in the last resort, severance.

The case arises out of the robbery and killing of Mr Vishal Gohel in Bushey in January 2022, involving a so‑called “honey‑trap” robbery. Multiple defendants were tried together. The two appellants, Tevin Leslie and Sakeen Rhoje Gordon, were convicted of murder; Leslie had earlier pleaded guilty to manslaughter and conspiracy to rob, and Gordon to possession of a bladed article. The appeal centres on the trial judge’s treatment of incriminating notes allegedly written by a co‑defendant, Tianna Edwards‑Hancock, which contained a confession to conspiracy to rob and detailed attempts to fabricate a defence narrative with her co‑accused.

The Court of Appeal:

• Dismissed Leslie’s appeal, holding the excluded material was not relevant to the issues in his case; but
• Allowed Gordon’s appeal against his murder conviction, holding that the judge had no power to exclude the confession evidence which was strictly relevant to Gordon’s defence, and that its exclusion rendered his conviction unsafe.

The judgment is significant because it:

• Clarifies the operation of s.76A Police and Criminal Evidence Act 1984 (PACE) on co‑accused confessions;
• Re‑states the principle from Lobban and Myers that there is no general judicial discretion to exclude relevant evidence when relied on by a co‑defendant;
• Emphasises a test of “strict relevance” where evidence is prejudicial to co‑defendants; and
• Illustrates the correct and incorrect uses of prior inconsistent statements and jury directions on authorship of documents.

2. Summary of the Judgment

2.1 Core facts and trial

• Three women (including Edwards‑Hancock) arranged a “sex party” with the deceased via a dating app.
• The prosecution alleged a joint plan whereby the women would gain entry, drug and distract the victim, and then allow three male co‑accused (Leslie, Gordon and Browne) to enter and rob him. Violence ensued in the bedroom; the victim died from combined blunt force head injuries and mechanical asphyxia.
• Leslie accepted conspiracy to rob and manslaughter, but denied intending serious harm.
• Gordon denied any conspiracy and denied entering the bedroom at all.
• Only one witness, co‑defendant Tianna Edwards‑Hancock, placed Gordon in the bedroom; she was later acquitted of all charges.

2.2 The notes and the trial judge’s ruling

During the cross‑examination of Edwards‑Hancock, the prosecution received from the solicitor for co‑defendant Georgia Bruce‑Annan a set of handwritten notes said to have been written by Edwards‑Hancock while the three women were on remand together. The notes:

• Contained admissions amounting to a confession to conspiracy to rob; and
• Showed her actively orchestrating a fabricated account to fit the available evidence, urging her co‑accused not to implicate certain others.

Following a voir dire:

• The judge found the notes to be genuine.
• He treated most of their content as admissible as previous inconsistent statements under s.4 Criminal Procedure Act 1865 (CPA 1865), to be used to challenge credibility.
• However, he excluded passages amounting to confessions to conspiracy to rob, directing that:
  • These confession passages were not to be adduced “in any way whatsoever”; and
  • The jury would not see the documents themselves.

The judge’s stated rationale was fairness to the confessing co‑accused and concern about possible PACE s.76 issues, despite no party having argued oppression or unreliability.

2.3 Appeals by Leslie and Gordon

Both appellants complained that the exclusion of the confession material:

• Prevented them from fully undermining the credibility of Edwards‑Hancock, who was running a cut‑throat defence against Gordon; and
• In Gordon’s case, denied him the use of crucial evidence, where her testimony was the only direct evidence placing him in the bedroom.

The Full Court granted leave on a single shared ground: whether the judge had erred in excluding the confession material from the jury. It expressly noted its concern that there is no discretion to exclude relevant defence evidence in the interests of fairness to others.

2.4 The Court of Appeal’s decision

The Court held:

• On the law:
  • Section 76A PACE allows one defendant to adduce a confession made by a co‑accused, provided it is relevant and not excluded under s.76A(2) due to oppression or unreliability.
  • On the facts, no one claimed oppression or unreliability; therefore s.76A’s specific exclusionary power was not triggered.
  • Under R v Lobban and R v Myers, and earlier authorities (Neale, Bracewell), there is no judicial discretion to exclude probative, relevant evidence when sought to be adduced by a co‑accused simply to avoid prejudice to others.
  • In multi‑handed trials, the test is one of “strict relevance”: if the evidence is strictly relevant to the co‑accused’s case, it must be admitted. Prejudice must then be handled by directions or, as a last resort, severance.
• For Leslie:
  • The excluded confession material was not relevant to any live issue in Leslie’s case (intent and degree of participation). Edwards‑Hancock’s credibility did not materially bear on his defence.
  • Accordingly, the judge’s exclusion of the confession material in relation to Leslie was correct. His appeal was dismissed.
• For Gordon:
  • By contrast, the confession in the notes was highly relevant to Edwards‑Hancock’s credibility, which was of “great importance” in Gordon’s case, as she alone placed him in the bedroom.
  • The judge had no power to exclude this strictly relevant confession evidence for reasons of fairness to co‑defendants. Doing so was an error of law.
  • The conviction for murder was therefore unsafe and was quashed.
  • A further hearing will determine: (a) whether Gordon’s conspiracy to rob conviction should also be quashed; and (b) whether a retrial for murder (and possibly conspiracy to rob) should be ordered.

3. Factual and Procedural Background in More Detail

3.1 The “honey‑trap” robbery

The prosecution case was that the six defendants devised a plan to rob Mr Gohel:

• The three women (Bruce‑Annan, Hoppie, and Edwards‑Hancock) contacted him via a dating app and arranged a “sex party”.
• They consumed drugs and alcohol at his flat.
• The men (Leslie, Gordon, and Browne) later arrived wearing balaclavas and gloves.
• Leslie accepted that he travelled to Bushey as part of a plan to steal “valuables” and access funds, including crypto and a bank account with around £57,000.
• The Crown alleged that serious violence was a contemplated part of the plan, given the need to extract banking details and overcome likely resistance.

The physical and medical evidence showed:

• The fatal assault occurred in the bedroom.
• There were grip marks indicating at least two assailants.
• The cause of death was a combination of blunt force head injury and mechanical asphyxia from a neck hold, with the victim’s drug and alcohol consumption weakening his resilience.

3.2 Defence positions at trial

• Leslie:
  • Accepted conspiracy to rob and manslaughter.
  • Admitted putting the victim in a headlock, taping his mouth, and tying his hands.
  • Denied intending to kill or cause really serious harm.
  • Accepted lying in his initial not guilty plea and defence statement, later changing his position while in custody.
• Gordon:
  • Denied any knowledge of or participation in a plan to rob.
  • Accepted that robbery was discussed between Leslie and Browne on the way, but claimed not to have joined that plan.
  • Denied entering the bedroom or using force; said he was in the flat briefly and then waited outside by the car.
• Edwards‑Hancock:
  • Denied conspiracy to rob and was ultimately acquitted.
  • Critically, she gave evidence that Gordon was in the bedroom when the attack occurred.
  • Her evidence was the sole direct testimony placing him there.

The acquittal of Edwards‑Hancock, coupled with the convictions of the others, powerfully suggests that the jury found at least parts of her account credible, including potentially her evidence about Gordon’s presence in the bedroom.

3.3 The emergence of the notes

Mid‑trial, during cross‑examination of Edwards‑Hancock, the prosecution received from Bruce‑Annan’s solicitor:

• A letter and handwritten notes said to have been written by Edwards‑Hancock in May 2022, while the three women were on remand together.
• The documents were similar in tone to Telegram messages already in evidence, showing joint planning of a defence.
• They contained:
  • Explicit advice on how to construct a story consistent with known evidence;
  • Appeals not to implicate certain co‑defendants; and
  • Material amounting to a confession to the conspiracy to rob.

The trial judge recognised from the outset that:

• Some parts of the notes were confessions within s.82 PACE.
• Other parts were valuable as previous inconsistent statements undermining her denial of collaboration and her account of events.

3.4 The voir dire and the judge’s first ruling

In the voir dire:

• Edwards‑Hancock was cross‑examined by the Crown and by counsel for Leslie and Gordon.
• There were clear overlaps between the content of the notes and her oral evidence.
• She nevertheless denied authorship, asserting that Bruce‑Annan had written the material.
• She ultimately declined to continue giving evidence in the voir dire, although she was willing to continue in front of the jury.

In his preliminary ruling (extracts of which are set out in the Court of Appeal’s judgment):

• The judge:
  • Accepted that the notes were partly confession evidence to conspiracy to rob.
  • Held that the bulk of the notes could be used as previous inconsistent statements under s.4 CPA 1865.
  • Refused to admit the confession passages at all, citing potential unfairness and the possibility (not argued by any party) that s.76 PACE issues might arise.
  • Ruled that the jury should not see the documents, but could hear about non‑confessional parts through cross‑examination.

Crucially, he also directed that the notes could be used against Edwards‑Hancock only if the jury were “sure” that she was the author, and that, even then, they could only be evidence against her, not against other defendants.

4. Statutory and Case Law Framework

4.1 Key statutory provisions

4.1.1 Section 76A PACE 1984 – co‑accused confessions

Section 76A provides, so far as relevant:

(1) In any proceedings a confession made by an accused person may be given in evidence for another person charged in the same proceedings (a co‑accused) in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.

(2) If … it is represented to the court that the confession was or may have been obtained—
(a) by oppression …; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made …
the court shall not allow the confession to be given in evidence … except in so far as it is proved … that the confession … was not so obtained.

Two points are central:

• There is a positive statutory route for a co‑accused to rely on another’s confession, subject to relevance; and
• The only explicit statutory basis for exclusion is where oppression or unreliability within s.76A(2) is put in issue and not disproved.

In Leslie & Anor, no such representation was made. The alleged author denied making the confession at all; the case was about authorship, not about oppression or reliability.

4.1.2 Section 82 PACE – definition of “confession”

Section 82 defines “confession” broadly:

“confession” includes any statement wholly or partly adverse to the person who made it…

This includes informal, private writings such as letters and notes written to co‑accused, even if not addressed to the authorities.

4.1.3 Section 4 Criminal Procedure Act 1865 – previous inconsistent statements

Section 4 CPA 1865 allows a party to confront a witness with a prior statement inconsistent with their current testimony. The earlier statement is not generally proof of its contents as “real evidence” of the facts, but is powerful evidence that the witness is unreliable or dishonest.

The trial judge correctly recognised that most of the material in the notes fell within this provision and allowed parts of it to be used to attack Edwards‑Hancock’s credibility.

4.1.4 Section 98 Criminal Justice Act 2003 – defining bad character evidence

Section 98 CJA 2003 provides that “bad character” does not include:

(evidence of, or of a disposition towards, misconduct in connection with the investigation or prosecution of the offence charged); or
(evidence which has to do with the alleged facts of the offence with which the defendant is charged).

The Court of Appeal held that the confession in the notes was not “bad character” evidence at all, but evidence directly about the alleged facts of the conspiracy. It therefore fell outside the CJA 2003 “gateways” and had to be treated simply as substantive evidence of guilt and of credibility.

4.2 Key authorities considered

4.2.1 R v Neale (1977) 65 Cr App R 304 and R v Bracewell (1979) 68 Cr App R 44

These pre‑PACE authorities articulated the notion of “strict relevance” in the context of joint trials. They recognised that a judge must be cautious about admitting evidence which, while relevant to one defendant, is prejudicial to another. However, they also limited the judge’s ability to exclude such evidence when a co‑defendant sought to rely on it.

4.2.2 R v Lobban [1995] 1 WLR 877 (PC)

In Lobban, the Privy Council, approving Scarman LJ in Neale, stated:

“The discretionary control the judge has in a joint trial … does not exist or arise when application is being made by a co‑defendant.”

The key point is that the judge’s general discretion to exclude highly prejudicial yet probative prosecution evidence does not carry over to exclude relevant evidence adduced by a co‑accused.

4.2.3 R v Myers [1998] AC 124 (HL) and Lui Mei Lin v The Queen [1989] AC 288

In Myers, the House of Lords adopted the statement in Lui Mei Lin that:

“The only limit on the right of a co‑accused to cross-examine another co‑accused … is, in their Lordships’ opinion, relevancy.”

Where one co‑accused gives evidence incriminating another, it is relevant for the latter to adduce previous inconsistent statements or other material to show that the former is unworthy of belief.

4.2.4 R v Thompson [1995] 2 Cr App R 589

Evans LJ, writing shortly before Lobban, voiced some unease with the rigidity of the rule and suggested (tentatively) that a discretion might exist to exclude evidence of limited benefit to one defendant but substantially prejudicial to another. However, the Court in Thompson did not need to decide the point and admitted the evidence in any event.

The present Court of Appeal in Leslie & Anor notes this suggestion but concludes that, in light of subsequent authorities, no such discretion has been recognised.

4.2.5 R v Omar [2023] EWCA Crim 341

Omar was cited primarily on the point that admissible evidence must still be “adduced”; documents do not “prove themselves”. This underpinned the trial judge’s concern about provenance and the need for a proper evidential basis to connect the notes to Edwards‑Hancock.

4.2.6 R v Musone [2007] EWCA Crim 1237

In Musone, a defendant sought to rely on a co‑accused’s alleged confession to a previous murder. Although such evidence met bad character gateway (e) (substantial probative value in relation to an important matter in issue between co‑defendants), the Court of Appeal upheld its exclusion because:

• It had been raised without proper notice, contrary to the Criminal Procedure Rules; and
• It amounted to an impermissible “ambush” of the co‑accused.

The Court in Leslie & Anor treats Musone as a Criminal Procedure Rules case: the exclusion flowed from procedural unfairness caused by lack of notice, not from any general discretion to exclude relevant evidence as between co‑accused.

5. The Court’s Legal Reasoning

5.1 Was the confession material admissible under s.76A PACE?

The Court accepted (following the prosecution’s realistic concession) that:

• Much of the excised material was capable of amounting to a confession by the author (assumed to be Edwards‑Hancock) to conspiracy to rob, within s.82 PACE.
• Some material was adverse to others (notably Bruce‑Annan, “the men”, and specifically Gordon); however, there were also inferential admissions placing the author within a joint plan.

As no party contended that the confession was obtained by oppression or unreliability‑inducing conduct, s.76A(2) did not apply. The judge’s basis for exclusion was therefore not statutory, but a supposed common law power to exclude relevant evidence in the interests of fairness to other defendants.

5.2 Does a common law discretion exist to exclude strictly relevant co‑accused evidence?

The Court’s central doctrinal move is to confront this question directly. Drawing on Lobban, Myers and Lui Mei Lin, the Court holds:

• The only operative control on a co‑accused’s ability to adduce such evidence is relevance, which in multi‑handed trials is applied as a test of “strict relevance”.
• Where evidence meets this strict relevance test to the case of the co‑accused seeking to rely on it, no judicial discretion exists to exclude it purely because it is prejudicial to other defendants.

The Court crystallises the approach in three key propositions (para 43 of the judgment):

1. The evidence must satisfy a test of “strict relevance” before it can be admitted where it prejudices other co‑defendants.
2. If it does satisfy that test, there is no discretion to exclude it to avoid that prejudice.
3. Instead, the judge must consider whether prejudice can be controlled by:
   • Appropriate judicial directions to the jury; or
   • As a last resort, ordering severance of the trial.

The tentative suggestion in Thompson that a discretion “might” exist in theory is acknowledged but rejected as having never been recognised in subsequent binding authority.

5.3 Distinguishing Musone

The prosecution argued that Musone showed that there is no unfettered right to adduce co‑accused confession material: the Court of Appeal there upheld a judge’s exclusion of a co‑defendant’s confession. The Court in Leslie & Anor distinguishes Musone on a narrow procedural basis:

• Musone involved a deliberate ambush in breach of the Criminal Procedure Rules (lack of notice of intention to rely on highly prejudicial bad character evidence).
• The exclusion was justified not by a general discretion to protect co‑defendants from prejudicial but relevant evidence, but by the court’s case‑management powers to prevent unfairness caused by procedural default.

In the present case, by contrast:

• The notes emerged mid‑trial via the prosecution’s disclosure; Leslie and Gordon had no prior opportunity to give notice.
• They did not flout the Criminal Procedure Rules.
• Accordingly, Musone does not support a broad discretion to exclude the notes; its rationale is inapplicable.

5.4 Application of the “strict relevance” test

5.4.1 In relation to Leslie

For Leslie, the Court held that the confession in the notes did not satisfy the strict relevance test:

• Leslie had already admitted conspiracy to rob and manslaughter.
• The only live issues in his case were:
  • His intent (did he intend to kill or cause really serious harm?); and
  • The extent of his personal violence or assistance in violence.
• Edwards‑H Hancock did not give any relevant evidence about Leslie’s intent, level of force, or causative role in the death.
• The dispute between them (about whether she participated in a particular FaceTime call during planning) was peripheral and did not materially undermine Leslie’s defence theory.

Therefore, although the confession was admissible generally, it added nothing material in relation to any factual issue concerning Leslie’s liability for murder. In his case, the judge was right to exclude it as irrelevant, and the appeal rightly failed.

5.4.2 In relation to Gordon

The situation for Gordon was “different”. His case turned sharply on whether he was present in the bedroom during the fatal attack:

• Gordon denied entering the bedroom at all.
• Only Edwards‑Hancock said that he was in the bedroom.
• Her credibility was therefore “capable of being of great importance” in Gordon’s case.

The confession in the notes was “a stark piece of evidence”:

• It did more than show efforts to coordinate stories; it was direct evidence of her participation in the planned robbery.
• This directly contradicted her sworn denial of involvement and thus fundamentally undermined her overall truthfulness.
• Some of the content in the notes overlapped with elements of her trial account, strengthening the inference that she authored them.

Because those confession passages bore centrally on her honesty and reliability, which in turn directly affected Gordon’s liability, the Court held that they were:

• Plainly strictly relevant to Gordon’s defence; and
• Wrongly excluded by the trial judge, who had no discretion to do so once relevance was established and s.76A(2) was not engaged.

5.5 The misdirection on use of the notes and the standard of proof

An additional, subtler error identified by the Court concerned the judge’s directions on how the jury could use the notes:

• He directed the jury that they must be “sure” that Edwards‑Hancock was the author before taking the messages into account even to assess her credibility, and that!
• Even if they were sure, the notes were “only evidence against her and not against any other defendant.”

The Court recognised that while a jury must be sure of authorship before treating the notes as evidence of her own guilt, a different approach applies when they are considered as part of the evidential matrix affecting the weight of her evidence against others:

• There is no requirement that a jury be sure of a fact before allowing it to affect their assessment of whether they are sure of something else.
• If the jury thought that she “probably” wrote the notes (but were not sure), that probability was still relevant to whether they could be sure of her testimony about Gordon.

Moreover, the judge’s blanket statement that the notes could be evidence only in her case, and not in any other defendant’s, was too rigid. In Gordon’s case, the material went not to proving the truth of what the notes said about him, but to the credibility of the witness who incriminated him.

5.6 Not bad character, but direct evidence

The Court further clarified that the confession material:

• Was not “bad character” evidence under s.98 CJA 2003, as it directly related to the alleged facts of the conspiracy to rob.
• Therefore did not have to navigate the CJA 2003 “gateways” or the related discretion to exclude under s.101–103.

This classification is significant for practice: defendants seeking to rely on co‑accused confessions linked to the index offence need not argue through the bad character regime at all; they argue simple relevance and, where appropriate, PACE s.76A.

6. Impact and Future Significance

6.1 Re‑affirmation of the co‑accused’s right to deploy confession evidence

The decision strongly re‑affirms that:

• A defendant has a robust right to adduce a co‑accused’s confession (s.76A PACE) where it is relevant to any matter in issue from that defendant’s perspective.
• Courts cannot dilute this right by invoking a free‑floating “fairness” discretion to protect co‑defendants, beyond the specific parameters of PACE s.76A and the Criminal Procedure Rules.

This has practical implications:

• Defence strategy:
  • Defendants will be more confident in seeking to rely on incriminating statements or documents by co‑accused, especially where those co‑accused run cut‑throat defences.
  • Such applications can be made mid‑trial if the material legitimately emerges late; Musone will not bar them absent procedural default.
• Prosecution strategy:
  • The Crown must anticipate that incriminating documents produced mid‑trial may become powerful tools in the hands of some defendants against others.
  severance at an earlier stage.

6.2 Trial management in multi‑handed cases

The Court’s structured guidance (para 43) will shape case management in complex multi‑defendant trials:

1. Judges must rigorously test strict relevance when evidence will prejudice some but aid others.
2. If the evidence is strictly relevant, it must be admitted; the judge’s task is to manage the trial architecture—through:
   • Careful oral and written directions on limited uses of evidence; and
   • Considering severance where necessary to avoid irredeemable prejudice.

The decision is likely to:

• Increase the frequency of judicial consideration of severance in large joint trials, especially where multiple cut‑throat defences and cross‑accusations are expected.
• Encourage earlier identification of potentially problematic co‑accused confessions and strategic decisions on charging and joinder.

6.3 Use of previous inconsistent statements and jury directions

The Court’s criticism of the directions on the notes signals that:

• Judges should avoid conflating:
  • The standard of proof required to treat a document as evidence of an offence committed by its author; and
  • The more flexible approach to using the same material to assess the credibility of that author when they give evidence implicating others.
• Jurors can be told that:
  • If they are sure X is the author, they may regard the document as substantive evidence against X; but
  • Even if they are not sure, a view that X is probably the author can still legitimately affect how much weight they give to X’s testimony against others.

This nuanced approach will influence jury summings‑up whenever disputed documents are used both as substantive and as credibility evidence.

7. Complex Concepts Explained

7.1 “Confession” under PACE

Under s.82 PACE, a “confession” is:

• Any statement wholly or partly adverse to the person who made it;
• Whether made to a person in authority or not; and
• Whether oral, written, or otherwise.

Thus, a private note between prisoners admitting involvement in a robbery is as much a “confession” as a formal interview answer.

7.2 Co‑accused confessions (s.76A PACE)

Normally, a confession is used by the prosecution against the person who made it. Section 76A creates a special rule allowing:

• One defendant to rely on another defendant’s confession in their own favour.
• This may be to:
  • Show that the confessor, not the relying defendant, committed the act; or
  • Undermine the confessor’s credibility when they incriminate the relying defendant.

The main safeguard is that if the confession is alleged to be obtained unfairly (oppression/unreliability), it must not be admitted unless the court is satisfied that it was not so obtained.

7.3 Voir dire

A voir dire is a mini‑trial or hearing within a trial, conducted in the absence of the jury, to determine the admissibility of evidence. In this case, the voir dire was used to decide:

• Whether the notes were genuine; and
• Whether their contents could lawfully be put before the jury.

7.4 Previous inconsistent statements

A previous inconsistent statement is any earlier statement by a witness that conflicts with their present testimony. It is used:

• Not necessarily to prove the truth of the earlier statement;
• But to show that the witness is inconsistent and therefore possibly unreliable or dishonest.

Here, the notes were inconsistent with Edwards‑Hancock’s claim that:

• She had not collaborated on a false account with her co‑accused; or
• She had no involvement in the conspiracy to rob.

7.5 “Cut‑throat defence”

A cut‑throat defence arises where co‑defendants actively seek to blame each other, rather than presenting a united denial of guilt. Such cases:

• Are especially prone to conflicts of interest; and
• Generate acute problems where evidence helpful to one defendant is harmful to another.

In this case, Edwards‑Hancock’s evidence against Gordon, and the defence attempts to discredit her, created a classic cut‑throat dynamic.

7.6 Strict relevance

“Strict relevance” is not a separate legal test but a heightened form of relevance applied in complex joint trials. Where evidence is:

• Helpful to one defendant’s case; but
• Seriously prejudicial to others;

the court insists that the evidence must be closely and directly connected to an important issue in the relying defendant’s case before admitting it.

7.7 Ambush and the Criminal Procedure Rules

An evidential “ambush” occurs when a party springs damaging evidence on another at trial without adequate notice, contrary to the spirit and requirements of the Criminal Procedure Rules (CrimPR). Courts may in such cases:

• Exclude the ambush evidence;
• Adjourn the trial; or
• Impose other case‑management remedies.

Musone is a leading example. Leslie & Anor clarifies that this is a procedural, not substantive, basis for exclusion.

7.8 Bad character vs evidence “to do with the alleged facts”

Under the CJA 2003, “bad character” is subject to a strict gateway system. However:

• Evidence “which has to do with the alleged facts of the offence” is not treated as bad character.
• Such evidence is admitted (or not) based on ordinary rules of relevance and fairness, not the bad character regime.

The confession in the notes fell squarely into this category: it concerned the very conspiracy to rob which was on trial, and so bypassed bad character rules entirely.

8. Critical Evaluation

The Court’s reasoning in Leslie & Anor is doctrinally orthodox but has significant practical consequences.

8.1 Strengths of the reasoning

• Consistency with authority: The Court aligns with Lobban and Myers, reinforcing a clear rule that avoids ad hoc manipulation of discretion in multi‑defendant trials.
• Protection of the accused’s right to put forward a full defence: The ruling robustly protects a defendant’s entitlement to deploy any strictly relevant exculpatory or credibility‑destroying material, even if it damages another defendant’s case.
• Clarity on the role of PACE s.76A: The judgment rightly confines exclusion to the specific statutory grounds (oppression/unreliability) where those are raised; it resists the temptation to create a parallel general fairness discretion.
• Realistic view of evidential nuance: The Court’s discussion of how juries may use uncertain authorship of documents to evaluate credibility is sophisticated and more faithful to how fact‑finding works in practice than rigid “all‑or‑nothing” directions.

8.2 Potential concerns and open questions

• Pressure on severance decisions: The judgment may increase the burden on trial judges to consider severing trials where co‑accused confessions would cause severe cross‑prejudice. This can have costs: duplicative trials, stress on witnesses, and risk of inconsistent verdicts.
• Complex summings‑up: Directing a jury on multiple, differently‑focused uses of a single piece of evidence (substantive vs. credibility, against A but in favour of B, etc.) is intellectually demanding and may increase the risk of misdirection.
• Late‑emerging evidence: Although the Court distinguishes Musone, the judgment implicitly trusts that the CrimPR and judicial case management will sufficiently police ambushes, which may not always be straightforward in genuinely late‑emerging evidence scenarios.

Nonetheless, as a matter of principle, the Court’s reaffirmation that relevance, not free‑floating fairness, determines admissibility between co‑accused provides valuable clarity.

9. Conclusion

Leslie & Anor v R [2025] EWCA Crim 1045 is a significant judgment in the law of criminal evidence and procedure. Its key contributions can be summarised as follows:

• No general discretion to exclude strictly relevant co‑accused confessions: Where evidence is strictly relevant to a co‑defendant’s case, and s.76A PACE is not engaged on oppression/unreliability grounds, the judge cannot exclude it merely to protect other defendants from prejudice.
• Strict relevance as the threshold: In multi‑handed trials, especially with cut‑throat defences, judges must apply a rigorous test of relevance. If the test is met, any prejudice is to be managed by directions or, exceptionally, severance.
• Clarified status of co‑defendant confessions: Confessions by co‑accused about the index offence are not bad character evidence but direct evidence, admitted under s.76A and ordinary relevance rules.
• Nuanced approach to previous inconsistent statements: The Court refines the correct jury directions where disputed documents serve both as potential substantive evidence and as tools to undermine credibility.
• Case outcome:
  • Leslie’s murder conviction stands, as the confession material was irrelevant to the issues in his case.
  • Gordon’s murder conviction is quashed as unsafe because the unlawful exclusion of the confession notes deprived him of a crucial line of defence centred on the credibility of the only witness placing him in the fatal room.

In the broader legal context, the decision consolidates and modernises the law on co‑accused evidence, reinforcing the primacy of the right to a full defence and the centrality of relevance, while signalling to trial judges and practitioners the need for meticulous case management and precise judicial directions in complex joint trials.