Summary of Anonymised Legal Opinion

Factual and Procedural Background

Judge Edis delivered the opinion concerning two appeals by persons convicted after a jury trial before The Court on 12 July 2023. Appellant A (then aged 23) and Appellant B (then aged 22) were each convicted of murder; Appellant B was also convicted of conspiracy to rob. Appellant A had earlier pleaded guilty to manslaughter and conspiracy to rob arising from the same incident. One female co-accused (Co-Accused B) was convicted of murder and conspiracy to rob; two co-accused (Co-Accused A and Co-Accused C) were convicted of manslaughter and conspiracy to rob; one female co-accused (Co-Accused D) was acquitted of murder, manslaughter and conspiracy to rob.

The allegations arose from events on the night of 22/23 January 2022 at the home of The Victim, who was subsequently found dead by a neighbouring Witness. The prosecution alleged a joint plan that females would lure The Victim for a sexual encounter and that the male co-accused would then enter to steal property and access funds, and that in the course of that robbery The Victim was attacked and died. Appellant A admitted participation in the conspiracy to rob and accepted having applied a choke hold and otherwise restrained The Victim, pleading guilty to manslaughter; he contested that he intended to cause really serious harm. Appellant B denied entering the bedroom where The Victim died, denied use of force, and denied participation in the conspiracy to rob.

During the trial, late in cross-examination of Co-Accused D, the prosecution were given a letter and notes (the "notes") produced by Co-Accused B's solicitor said to have been written by Co-Accused D while remanded in custody with other female co-accused. The single ground of appeal relates to the trial judge's handling of those notes, specifically to parts which were treated as containing confessions to conspiracy to rob and were excluded from evidence before the jury.

Legal Issues Presented

1. Whether the trial judge erred in excluding, from the jury's consideration, parts of the notes said to contain confessions to conspiracy to rob (and relatedly whether those parts were admissible under section 76A of the Police and Criminal Evidence Act 1984).
2. Whether a trial judge has a discretion to exclude relevant evidence (or to edit documents) when its admission would be prejudicial to co-defendants in a joint trial.
3. Whether any exclusion of the confession material rendered Appellant B's conviction unsafe such that it should be quashed and whether a retrial should be ordered.

Arguments of the Parties

Appellant A's Arguments

• Counsel for Appellant A applied for the confession material in the notes to be adduced on his behalf, arguing the material was relevant to assessing the credibility of Co-Accused D.
• It was contended that the jury would be assisted by the additional material in assessing Co-Accused D's credibility, although ultimately the Full Court found the confession material irrelevant to the issues at trial for Appellant A.

Appellant B's Arguments

• Counsel for Appellant B submitted the documents were relevant to his case and admissible under section 76 PACE as confessions, and alternatively under section 76A PACE as confessions of a co-accused.
• It was further submitted the notes were admissible as previous inconsistent statements under section 4 of the Criminal Procedure Act 1865.
• Counsel argued the notes demonstrated that Co-Accused D sought to persuade other co-accused to fabricate accounts and contained admissions that directly undermined her credibility and placed Appellant B in the bedroom at the material time.

Prosecution's Arguments

• The prosecution analysed the notes and accepted that much of the material could amount to a confession within the meaning of section 82 PACE and that the excised material had the capacity to be highly prejudicial to co-defendants.
• They submitted that the judge's primary focus at trial had been whether the Crown could cross-examine Co-Accused D on the notes and that the voir dire properly centred on that issue.
• The prosecution argued that, in Appellant A's case, the confession material did not meet the test of relevance to his issues and that consideration of the physical notes would not assist with authorship absent expert evidence.
• They further submitted there was ample other material on which a jury could convict Appellant B and that the notes added little beyond what was put to Co-Accused D in cross-examination.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Omar [2023] EWCA Crim 341	Requirement that evidence going before the jury must be adduced as evidence; someone should normally produce documents in oral evidence to prove provenance; solicitor's evidence cannot substitute for client provenance.	The judge relied on Omar to reject reliance on a solicitor to prove provenance of the notes and to emphasise that documents must be produced in evidence before the jury; the court accepted that provenance must be considered and proved.
R v Lobban [1995] 1 W.L.R 877	Authority discussing whether a judge has discretion to exclude relevant but prejudicial evidence in a joint trial; approval of Neale's statement limiting a judge's discretionary control when evidence is adduced by a co-defendant.	The court treated Lobban as establishing that the discretionary power to exclude probative evidence because it prejudices co-defendants does not arise when a co-defendant seeks to adduce it; Lobban informed the conclusion that no such discretion exists.
R v Myers [1998] AC 124	Affirmation that the only limit on a co-accused's right to cross-examine another co-accused on inconsistent evidence is relevancy; if evidence is incriminating and relevant, the other must be allowed to show inconsistency.	The court relied on Myers to support the principle that relevancy (strict relevance) is the principal constraint and that a judge ordinarily lacks a discretion to exclude relevant material adduced by a co-defendant.
R v Neale (1977) 65 Cr. App. R. 304	Statement (approved in Lobban) that a judge's discretion to refuse to allow probative evidence on grounds of prejudice does not arise when the application is made by a co-defendant.	Neale's principle was adopted as part of the lineage of authority leading to the court's conclusion that exclusionary discretion is very limited in the co-defendant context.
Lui Mei Lin v The Queen [1989] AC 288	Statement that if one co-accused has given evidence incriminating another it must be relevant for the latter to show inconsistent evidence; relevancy is the test.	Quoted in support of the strict relevancy test the court concluded must be applied where confession material is sought to be adduced by a co-defendant.
R v Thompson [1995] 2 Cr. App. R 589	Commentary that absence of a discretion to exclude relevant but prejudicial evidence may leave practicable protection only in separate trials or narrow definitions of relevancy; suggestion that a discretion might be desirable in limited cases.	The court noted Thompson's observations but recorded that subsequent authorities have not established a general exclusionary discretion; Thompson informed debate on practical consequences but was not treated as creating a general discretion.
R v Musone [2007] EWCA Crim 1237	Recognised that, where statutory gateways (e.g. CJA 2003) apply, a judge lacks discretion to exclude confession material satisfying statutory tests, but case management and procedural fairness (e.g. preventing ambush) may justify exclusion under the Criminal Procedure Rules.	The court acknowledged Musone but distinguished it: Musone turned on breaches of disclosure/notice rules and ambush; neither appellant in this case had breached procedural rules, so Musone did not support exclusion here.

Court's Reasoning and Analysis

The court analysed the admissibility and exclusion of the notes by reference to statutory provisions and established authority. Key analytical steps were:

1. The court accepted the judge's conclusion that parts of the notes were genuine and that substantial parts were admissible as previous inconsistent statements under section 4 Criminal Procedure Act 1865, provided provenance could be established.
2. The court considered whether the exclusionary power exercised by the trial judge in respect of the parts treated as confessions was lawful. It analysed section 76A PACE and section 82 PACE (definition of "confession") and observed that section 76A was not engaged by any suggestion that a confession, if made, was unreliable through oppression; Co-Accused D denied authorship.
3. The court reviewed authorities (Lobban, Myers, Neale, Lui Mei Lin) and concluded that, in the context of a co-defendant seeking to adduce confession material, the admissibility is constrained by a test of "strict relevance" but there is no general judicial discretion to exclude relevant evidence merely because it is prejudicial to other co-defendants. If material meets strict relevance, it should ordinarily be admitted.
4. The court accepted that practical safeguards remain: a judge must consider whether prejudice can be managed by directions, or whether severance (separate trials) is necessary (severance being a last resort). The Criminal Procedure Rules and case management powers may bar evidence in cases of procedural ambush (as in Musone), but those circumstances were absent here because the material came to the parties via the prosecution during cross-examination.
5. Applying these principles to the facts, the court analysed relevance to each appellant: for Appellant A the confession material was not strictly relevant to his central issues (intent to cause really serious harm and the nature/extent of his involvement), so exclusion was lawful in his case; for Appellant B the credibility of Co-Accused D (who gave the sole direct evidence placing him in the bedroom) was of crucial importance and the confession material was strictly relevant to that credibility and to his defence.
6. The court therefore concluded that the trial judge lacked power to exclude the confession parts of the notes in relation to Appellant B, and that that erroneous exclusion rendered Appellant B's conviction unsafe.

Holding and Implications

HOLDING: The court reached two principal conclusions:

• Appellant A's appeal against conviction was dismissed: the exclusion of the notes (in his case) did not render his conviction unsafe because the confession material was not strictly relevant to his issues.
• Appellant B's appeal was allowed. The court found that the trial judge erred in excluding confession evidence contained in the notes when applied to Appellant B's case; that error rendered Appellant B's conviction for murder unsafe, and the conviction for murder was quashed.

Implications:

• The court ordered a further hearing to consider whether Appellant B's conviction for conspiracy to rob should also be quashed for the same reasons and whether the prosecution's application for a retrial on murder (and, if appropriate, conspiracy to rob) should be granted.
• The court directed sequential written submissions on those issues (Appellant B's counsel to serve first, prosecution to respond) and set a lodgement date for submissions with the Criminal Appeal Office. There is liberty to apply to vary directions by email.
• The court's reasoning re-affirms the established authorities that, in joint trials, admissible evidence that is strictly relevant to a co-defendant generally cannot be excluded merely because it is prejudicial to other co-defendants; procedural safeguards (directions, severance, case management under the Criminal Procedure Rules) remain available where unfairness arises from procedural ambush or other exceptional circumstances. The court applied those principles to quash Appellant B's conviction.