Prejudicial Co-Defendant Statements and the Limits of the Common-Design Hearsay Exception

1. Introduction

This judgment addresses two important limits on the use of evidence in multi-defendant criminal trials. First, evidence nominally admitted against one defendant may nevertheless prejudice another defendant so seriously that a direction restricting its use is insufficient. Secondly, a conspirator’s statement does not become evidence against other alleged conspirators merely because it relates to their activities: it must further the common design.

The Court of Appeal quashed both appellants’ convictions for conspiracy to cause grievous bodily harm with intent, violent disorder and murder. The central error was the admission of a witness’s account that a co-defendant had privately identified the appellants as participants in the fatal attack. That account had very limited legitimate evidential value but substantial potential to distort the jury’s assessment of the circumstantial case against them.

The court also held that family-warning messages sent by another alleged conspirator fell outside the common-design exception to the hearsay rule. However, it rejected a separate complaint that the first appellant’s murder conviction had been left to the jury on a late alternative basis involving his possible role as a driver.

2. Background and Evidential Setting

The prosecution alleged a campaign of revenge following a knifepoint robbery of cannabis from a co-defendant’s family home on 31 July 2019. The alleged campaign began with searches for the deceased and violence at his girlfriend’s home. Approximately three months later, on 31 October 2019, a group located and attacked him with weapons. He suffered catastrophic head injuries and died on 21 January 2020.

The conspiracy count covered the period from 30 July to 1 November 2019. It therefore encompassed both the earlier violent disorder and the later fatal attack. Following trial before Mrs Justice Cheema-Grubb at Winchester Crown Court, both appellants were convicted on all three counts on 6 June 2023.

The prosecution case identifying the appellants as participants depended predominantly on telephone evidence: communications between relevant individuals, cell-site locations, periods of telephone inactivity and changes of phones or numbers after the attack. Both appellants denied being present. The first said that he was visiting a friend elsewhere; the second maintained that he was at home and called his brother as an alibi witness.

The private account identifying the appellants

The co-defendant who had been robbed initially denied involvement in the fatal incident. After his former partner provided an account of their conversations, he changed his position and pleaded guilty to manslaughter at the start of trial, while continuing to deny murder.

His former partner described an account in which he admitted participating in an assault but denied intending serious injury. According to her, he said another participant unexpectedly inflicted the grave injuries. A different co-defendant ultimately testified that he had inflicted the fatal blows.

The former partner also said that the robbed co-defendant had identified the two appellants as members of the attacking group. He disputed having named them. It was common ground when the prosecution sought to introduce this account that it was not admissible evidence against the appellants.

The family messages

A further evidential dispute concerned messages sent by the robbed co-defendant’s brother. They described plans and developments in the search for the deceased, including alleged participation by the second appellant. Although admissible against their sender, their admissibility against other alleged conspirators depended on whether they furthered the conspiracy rather than merely reported events.

3. Summary of the Decision

• The disputed identifications should have been excluded. Their legitimate probative value was exceptionally slight, while their prejudicial effect on the appellants was substantial.
• The limiting directions did not sufficiently protect the appellants in this particular trial. The court expressly preserved the ordinary practice of directing juries to distinguish evidence admissible against different defendants.
• The family-warning messages were not admissible against the second appellant under the common-design exception. Their connection with the conspiracy did not establish that sending them furthered it.
• The alternative driver route was permissible. An evidentially supported route to conviction could be left to the jury despite its late introduction because it caused no identified forensic prejudice.
• All three convictions were unsafe. The factual and evidential links between the counts meant that the unsafe murder verdicts undermined the remaining verdicts.

The court ordered a retrial. An appended footnote records that both appellants were acquitted at that retrial on 11 May 2026.

4. Legal Reasoning

A. Slight probative value could not justify substantial prejudice

The prosecution initially argued that the jury needed the witness’s complete account to decide whether she or the robbed co-defendant was telling the truth. It also suggested that the identities of his companions helped establish his intention to cause really serious harm.

The trial judge admitted the evidence, refusing exclusion under section 78 of the Police and Criminal Evidence Act 1984. She considered its probative value greater than its prejudicial effect, given the availability of directions restricting its use.

The Court of Appeal examined what actually remained disputed. Apart from the naming of the appellants, the principal disagreement concerned whether the co-defendant had told the witness that he accidentally struck another attacker with his baseball bat. That issue had little significance. It did not justify introducing highly prejudicial identifications of the appellants.

The alternative argument about intention was also unpersuasive. The court struggled to see why the co-defendant’s intention would materially depend on whether his companions were the appellants, alleged to be associated with him in drug dealing, or other drug dealers whom he claimed had accompanied him.

The court additionally identified an error in the trial ruling: the witness had not said that the co-defendant told her he dealt drugs with the appellants. She had expressed only an impression concerning the second appellant. That impression should not have been treated as a reported admission.

Importantly, much of the witness’s account substantially reproduced the co-defendant’s own eventual defence: participation in a lesser assault without an intention to cause serious injury. The prosecution’s claim that the disputed identifications were necessary to assess a significant conflict between their accounts was therefore weak.

The decision demonstrates that evidential completeness is not a sufficient justification in itself. The court must identify what a disputed detail genuinely proves and weigh that value against the concrete risk it creates for other defendants.

B. Why the limiting directions were insufficient here

The trial judge repeatedly explained that the co-defendant’s private statements were not evidence against the appellants. The Court of Appeal did not question either the general legitimacy of such directions or juries’ conscientious efforts to follow them. Its conclusion depended on the combination of circumstances in this trial.

1. The admissible case required a delicate circumstantial assessment. Telephone contacts, locations and periods of silence needed careful evaluation. An apparent identification by a participant risked colouring that exercise.
2. The reason for admission required the jury to combine the evidence. The jury was effectively invited to compare the witness’s account of the names with the admissible evidence of the appellants’ presence, thereby assessing her credibility. It then had to disregard that combined picture when deciding their guilt.
3. The jury specifically revisited the witness’s evidence. During deliberations it requested her recorded testimony. The judge instead provided a detailed reminder, including the disputed identifications and the limiting direction.
4. The summing-up treated the defendants together. A defendant-by-defendant presentation might have assisted separation of the evidence, but the judge used a chronological account covering all five defendants.

The resulting principle is contextual, not categorical. The judgment does not establish that accusations by one defendant can never be admitted in a joint trial. It establishes that a direction is not an automatic answer where weakly probative material creates a powerful risk of contaminating the assessment of another defendant’s case.

C. Later testimony could not retrospectively cure the error

The robbed co-defendant subsequently testified that other men, rather than the appellants, had accompanied him. That raised the possibility of using his earlier account in rebuttal, and the court referred to a possible route by which a previous inconsistent account might have wider evidential use.

However, those possibilities did not establish that the original admission was harmless. The court could not know whether he would have testified had the disputed material initially been excluded. His decision was taken after the jury had already heard it, against the background of his changed defence and another co-defendant’s admission to inflicting the fatal injuries.

The court therefore refused to reconstruct a hypothetical trial in which later events necessarily cured an earlier error. Those later events might themselves have been influenced by the erroneous ruling.

D. Statements must further the conspiracy, not merely concern it

The common-law exception for acts or declarations in furtherance of a common design is preserved by section 118 of the Criminal Justice Act 2003. The court identified three requirements:

1. The act or declaration must be that of a conspirator.
2. It must occur in furtherance of the conspiracy.
3. Other evidence must be capable of establishing that the defendant against whom it is relied upon participated in the conspiracy.

The first and third requirements were supported by evidence in this case. The decisive question was the second.

The trial judge had treated reassurance and protection of family members as part of the conspiracy’s scope. That conclusion reflected the circumstances of the original robbery, which occurred in a family home while children and an infirm grandmother were present.

The Court of Appeal nevertheless held that sending the warnings was not part of carrying out the unlawful agreement to locate and injure the deceased. The messages revealed the sender’s knowledge and involvement, but that did not make them operational steps in the common enterprise. Warning relatives was not itself unlawful, and the planned attack could have been carried out without the warnings.

Those observations supported the court’s assessment of these particular messages. They should not be converted into a general rule that every qualifying communication must itself be criminal or indispensable. The governing distinction remains between a communication that furthers the common design and one merely associated with it.

The court also stressed that the Criminal Justice Act 2003 contains other hearsay provisions. Their existence did not justify stretching this particular common-law exception beyond its proper boundaries.

E. An alternative route to conviction may be left late if it causes no unfairness

After the evidence closed, the prosecution sought a direction permitting conviction of the first appellant for murder if he had driven other participants to the area with the necessary knowledge and intention. His counsel objected that the case had previously alleged participation in the attacking group.

The Court of Appeal rejected the proposed additional ground. A judge may leave an evidentially supported route to conviction regardless of the parties’ earlier presentation. The qualification is procedural fairness: a late change may be impermissible if it deprives the accused of useful evidence or cross-examination.

No such disadvantage was identified. The first appellant’s case was that he was neither present nor nearby. Evidence supporting that position would answer both the alleged attacking role and the possible driving role. Counsel also accepted that no additional evidence could have been called.

This was not approval of conviction merely for driving. The alternative route still required proof of the requisite knowledge and intention.

F. The unsafe murder verdicts affected the other counts

The conspiracy count linked the early violence and the fatal attack through an alleged continuing agreement. The prosecution relied on common participants, a common target and a common revenge motive. The jury had not been prohibited from using findings on one count when assessing another, and the Court of Appeal regarded that approach as proper in the circumstances.

Consequently, the court could not isolate the unsafe murder verdicts from the conspiracy and violent-disorder verdicts. All three convictions had to be quashed. The Crown did not argue that the convictions remained safe notwithstanding the erroneous rulings, or that the other counts could survive an unsafe murder verdict.

The court expressly left undecided whether the erroneous admission of the messages, standing alone, would have rendered the second appellant’s convictions unsafe.

5. Precedents Cited and Their Influence

Joseph King [2012] EWCA Crim 805

The trial judge relied on this decision’s survey of the authorities. The Court of Appeal later referred to the same authority as King [2012] EWCA Crim 805 when stating the three requirements for admitting a conspirator’s acts or declarations against another defendant.

Its significance was to structure the admissibility inquiry. Independent evidence linking both individuals to a conspiracy did not answer the separate question whether the particular messages furthered it. The appeal turned on that distinction.

Blake [1844] 6 QB 126

This leading authority involved a scheme to evade customs duty. An entry in one defendant’s day book was admissible against the other because it formed part of the dishonest transaction. A cheque stub recording the subsequent distribution of proceeds was not: it followed completion of the common purpose and did not help carry it out.

The case illustrates that a document’s connection with criminal activity is insufficient. Its function within the enterprise matters. That reasoning supported excluding the family-warning messages from the evidence against the second appellant.

Barham [1997] 2 Cr App R 119

In this authority, Kennedy LJ approved an Australian statement by Chief Justice Dixon distinguishing narrative accounts of past events from directions, instructions, arrangements and utterances accompanying acts.

The distinction explains why an admission may be powerful evidence against its maker without becoming evidence against everyone involved in the alleged enterprise. The present judgment applied that caution to messages describing the search and revenge plans.

Reeves — 4 December 1998 CA

This unreported decision was cited through the 2025 edition of Archbold. It described a qualifying act as one forming “an integral part of the machinery designed to give effect to the joint enterprise”.

That formulation directs attention to operational function. The warning messages related to the conspiracy but were not shown to form part of the machinery implementing the agreement to injure the deceased.

Together, these authorities show that the court was principally applying and clarifying established doctrine rather than creating a new hearsay exception or replacing the existing test.

6. Practical and Wider Impact

• Greater scrutiny of marginally relevant identifications: A prosecution request to present a witness’s complete account should identify precisely why prejudicial names or details are necessary.
• Careful handling of mixed-purpose evidence: Courts should examine whether the proposed use of evidence requires jurors to combine material that they must later separate when deciding guilt.
• Communication-by-communication analysis: In conspiracy trials, a message’s subject matter is not enough. Its purpose and contribution to implementing the agreement require separate examination.
• Attention to actual forensic disadvantage: Objections to late alternative routes should identify what evidence, questioning or defence preparation the change has prevented.
• Assessment of linked verdicts: An error affecting one count may undermine others where the jury could legitimately use overlapping findings across counts.

The decision’s reach should not be overstated. It neither undermines limiting directions generally nor requires all multi-defendant cases to be summed up separately. It also does not establish that every communication to relatives falls outside the common-design exception. Its emphasis is on the actual evidential function and prejudice in the particular trial.

7. Complex Concepts Simplified

Probative value

How much evidence genuinely helps establish a disputed issue.

Prejudicial effect

The risk that evidence will improperly influence the decision, rather than simply damage a defendant’s case through legitimate proof.

Limiting direction

An instruction that evidence may be used for one purpose or against one defendant, but not for another purpose or against someone else.

Hearsay

A statement made outside the present oral testimony and relied upon to prove what it asserts. Its admissibility depends on an applicable legal rule or exception.

In furtherance of a conspiracy

Helping implement the agreed enterprise, rather than merely discussing or reporting matters connected with it.

Unsafe conviction

A conviction the appellate court cannot allow to stand. Quashing it for trial error does not itself determine innocence; a retrial may follow.

8. Retrial and Publication

The Court of Appeal ordered a fresh indictment within 28 days and rearraignment within two months. The retrial venue and trial judge were to be determined through a Presiding Judge of the Western Circuit.

Publication was initially postponed under section 4(2) of the Contempt of Court Act 1981 until the retrial concluded. The appended footnote records that the retrial took place at Winchester Crown Court before Mr Justice Murray and a jury, that both appellants were acquitted on 11 May 2026, and that the postponement order was accordingly discharged.

9. Conclusion

The judgment reinforces two safeguards: substantially prejudicial evidence cannot be justified by slight legitimate relevance, and statements connected with a conspiracy are not necessarily statements furthering it.

Its broader significance lies in requiring courts to examine how evidence will actually operate in a complex trial. Directions, evidential exceptions and alternative routes to conviction must each be assessed against their proper legal conditions and the practical fairness of the proceedings.