Tevin Leslie & Anor v R [2025] EWCA Crim 1045

[2025] EWCA Crim 1045

Case No 202302678 B5

202302729 B5

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT ST ALBANS

His Honour Richard Foster

T20227033 T20227022

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 31 July 2025

Before

LORD JUSTICE EDIS

MR JUSTICE SAINI

HIS HONOUR JUDGE HIRST

(Honorary Recorder of Lincoln, sitting as a judge of the Court of Appeal Criminal Division)

Between

TEVIN LESLIEAppellant

SAKEEM GORDONAppellant

THE KINGRespondent

Alexandra Felix KC and Christopher Stimpson (assigned by the Registrar) for Leslie Tevin

Allan Compton KC and Natalia Constantine (assigned by the Registrar) for Sakeem Gordon

Charlotte Newell KC and Simon Wilshire KC (instructed by the CPS) for Crown

Hearing Hearing dates : 26 June 2025

APPROVED JUDGMENT

[1]On 12 July 2023 before the Crown Court at St Albans, the appellants, TevinLeslie (then aged 23), unanimously, and Sakeen Rhoje Gordon(then aged 22), by a majority of 10-1, were each convicted of murder. Gordon was also convicted of conspiracy to rob. They now appeal against the conviction by leave of the full court.

[2]At an earlier hearing Leslie had pleaded guilty to manslaughter and conspiracy to rob. These convictions arose out of the same incident which gave rise to the allegation of murder. Gordon had pleaded guilty to possession of a bladed article which was found on him when he was arrested. In that incident it was alleged that both appellants had conspired to rob Mr Vishal Gohel on the night of the 22/23 January 2022 at his home, and that in the course of that robbery they had murdered him. The prosecution alleged that these offences were committed jointly with another man, Brandon Browne, and three women, Yarley Georgia Bruce-Annan, Faith Loryn Hoppie, and Tianna Edwards-Hancock. Bruce-Annan was convicted of murder and conspiracy to rob. Browne and Hoppie were convicted of manslaughter and conspiracy to rob. Edwards-Hancock was acquitted of murder, manslaughter and conspiracy to rob.

[3]The single ground of appeal relates to the way in which the judge dealt with some notes (“the notes”) about the case which were produced to the prosecution by Bruce-Annan’s solicitor late in the course of the trial. They were said to have been created by Edwards-Hancock and passed to Bruce-Annan while they were remanded in custody prior to trial.

[4]In order to explain the significance of the notes, it is necessary to explain the nature of the Crown’s case and the defence cases.

The facts

[5]The appellants and their co-accused travelled from London to Bushey during the night of the 22 January 2022 into the early hours of the morning of the 23 January 2022 to the home address of Mr Vishal Gohel. There was no dispute that there had been telephone contact between them during the afternoon and evening and arrangements were made for them to meet.

[6]The three female co-accused had met Mr Gohel on a dating app and had arranged to visit his address for a ‘sex party’. The females and Mr Gohel consumed drugs and alcohol. The three men then arrived. Tevin Leslie accepted that he was told that Mr Gohel had valuables at the flat, including Rolex watches and expensive clothes and he was aware that Mr Gohel had a crypto currency account and a bank account with a balance of £57,000.

[7]Tevin Leslie accepted that he travelled from Bushey as part of a plan to steal from Mr Gohel. Sakeem Gordon said that he had travelled to the flat believing girls would be there for a party.

[8]Whilst all six were in the flat, Mr Gohel was attacked in his bedroom and died. It was accepted that they then all left the flat, leaving Mr Gohel inside, and that none of them sought medical attention for him.

[9]On the evening of 23 January 2023, a next door neighbour, Mr James Welch, noticed that the door to Mr Gohel’s flat was ajar. Concerned for Mr Gohel he entered the flat and found Mr Gohel lying dead on the floor in his bedroom, he was fully clothed and had silver gaffer tape on his face and mouth area.

[10]The Prosecution case was that all of the co-accused were guilty of murder irrespective of whether they entered the bedroom and participated in the violence. They contended that all six defendants had agreed together that the females would create a ‘honey-trap’, where they would gain entry to Mr Gohel’s home for the purpose of a sex party and then, in the early hours of the morning allow entry to the male co-accused who would steal property from Mr Gohel. There must have been an intention to cause really serious harm to Mr Gohel in order to gain access to a substantial sum of money in his bank account; he was unlikely to provide the account details without resistance.

[11]The physical evidence at the scene showed clearly that Mr Gohel had been attacked in his bedroom. It was not possible to say by whom, although Tevin Leslie admitted applying a head lock or choke hold on Mr Gohel. Analysis of the grip marks on his arms showed that it was likely that the attack involved two people and in addition to the choking Mr Gohel had been punched or kicked at least four times to the head causing concussion and moderate bleeding.

[12]Leslie by his pleas admitted that he had been party to a conspiracy to rob Mr Gohel. Leslie said that he had entered the room and applied a choke hold and tied Mr Gohel’s hands which contributed to his death, and therefore pleaded guilty to manslaughter. The issue in his case was whether in acting as he did he intended to cause him really serious harm. Gordon denied entering the bedroom where Mr Gohel died and denied using any force on him or knowing that anyone else had done so. He denied that he was party to the conspiracy to rob.

[13]The key components of the prosecution case were: i) The evidence from various neighbours of Mr Gohel, which was read, who had seen two females enter the flat in the early hours of the morning and had heard loud music inside. At midnight an argument could be heard and then banging, followed by music, consistent with a party, and then the noise stopped. One neighbour heard two men run down the stairs and rush out whilst banging continued in Mr Gohel’s flat and then it was quiet. ii) Cell site analysis which showed that there were phone calls and messages between the co-accused which went to the conspiracy to rob. The cell site analysis, ANPR and CCTV showed that the male co-accused had travelled from Bushey at the material times. The attribution of the phones had been agreed and showed that there had been contact between Tevin Leslie and Bruce-Annan, whom he had met through a dating app in the months prior to the murder, and with whom he had contact the day before the murder when the plan to steal from Mr Gohel were formed. iii) Medical Evidence from the pathologist, Dr Matthew Cieka that Mr Gohel had died as a result of blunt force head injury and mechanical asphyxia. The other injuries to Mr Gohel were minor. The head injury was examined by a neuropathologist, Dr Al Sarraj who concluded that it was in keeping with a mild to moderate degree of force and may not have caused death but contributed to it. The neck compression was by means of a neck lock, given the absence of injury and the pressure was diffuse. Cocaine was present in Mr Gohel’s body and taken with alcohol would have increased the heart rate making the rhythm unstable, taken with Mr Gohel’s fatty liver, Mr Gohel was less able to deal with the head injury and lack of oxygen. The injuries alone would not have led to his death, but they were a substantial cause of it. iv) Tevin Leslie and Sakeem Gordonexercised their right to silence and made no comment to all questions asked. They each gave evidence at their trial that they did not answer questions on legal advice.

[14]The defence case for Tevin Lesliewas that whilst he accepted, by his guilty plea, that he had conspired to rob Mr Gohel and had pleaded guilty to manslaughter, there had been no intention to kill or cause serious injury to Mr Gohel. There had been no intention to use violence, although he accepted that it may have been necessary to threaten or use violence to steal. He accepted that he had contributed to Mr Gohel’s death by placing him in a headlock and tying his hands. He gave evidence during his trial that he had met his co-accused Bruce-Annan on a dating app and she had contacted him for assistance in accessing Mr Gohel’s crypto currency account. He had agreed to assist her on the telephone but it was difficult and he agreed to attend the flat following a call involving Browne and Gordon. On their arrival, wearing balaclavas and gloves they were met by Hoppie who explained that Mr Gohel was not sufficiently drugged and they would need to wait. They were then invited into the flat. Mr Gohel came out of the bedroom shouting and swearing and demanding to know who they were and why they were in his flat. Leslie put him in a headlock and pulled him into the bedroom and onto the bed. Mr Gohel was resisting and fighting against him. Leslie wrapped duct tape around Mr Gohel’s mouth whilst another held down his arms, he was able to pull the tape down from his mouth. A demand was made for the transfer of monies from his account but Mr Gohel explained that he was limited to transferring no more than £1000. Someone punched Mr Gohel to the face repeatedly. Leslie searched for valuables in the flat and then restrained Mr Gohel as he tried to tie his hands. Mr Gohel stopped moving and was accused of faking it. The duvet he was lying on was pulled from under him and he fell to the floor, there was still no movement and Leslie sprayed his face with cleaning fluid to revive him but to no avail. Leslie and Gordon ran from the flat to the car, and together with Browne drove away. He learned on the 28 January 2022 that Mr Gohel had died. He disposed of his SIM card and his car knowing his involvement in the death. He accepted that he had lied when he pleaded not guilty and in his defence statement. He realised whilst in prison and having attended courses that he needed to admit his wrongdoing and pleaded guilty to the conspiracy to rob and manslaughter. He was not prepared to say who had done what in the bedroom, he was fearful of violence in the prison for ‘snitching’.

[15]The defence case for Sakeen Gordonwas that he denied knowledge of any plan to commit a robbery or to steal and that he went along to the flat believing girls would be there for a party. He gave evidence during his trial that during the car journey to Bushey he had heard Leslie talking to Browne about stealing property but had not taken it seriously and had not joined in. He denied entering the bedroom but was aware of the commotion from the bedroom and left the flat. He did not partake in a robbery and was in the flat for a few minutes before leaving and waiting by the car for his male co-accused.

[16]Edwards-Hancock gave evidence in her own defence. She was the only witness who said that Gordon was in the bedroom and her credibility was crucial. She, it will be recalled, was acquitted which suggests that the jury must have considered that her evidence was capable of belief, at least.

Bad character to correct a false impression in the case of Leslie

[17]During his evidence and in cross examination Tevin Leslie denied taking a knife to Mr Gohel’s flat; he said he did not carry knives because of the risks of being stopped. The judge ruled that he had sought to mislead the jury by creating a false impression as to his character and his previous convictions for robbery and possession of an offensive weapon (a credit card knife) and possession of a bladed article, (a lock knife). Gateway F had been triggered. Leslie had created a false impression of someone who did not have a criminal past, when he did have.

[18]The judge, during his summing up, told the jury that those previous convictions did not show a propensity or a tendency to inflict really serious bodily harm. The Jury were warned to be careful not to be unfairly prejudiced against Tevin Leslie. They had heard details of his previous convictions only to consider whether he had created a false impression of himself when he gave evidence, and if so, to correct it.

The relevance of the Bruce-Annan notes

[19]During the cross examination of Edwards-Hancock on 22 January 2023 the Prosecution were handed by the solicitor acting for Bruce-Annan a letter and notes which had been passed to her by her client. These notes were said to have been written by Edwards-Hancock and passed to Bruce-Annan and Faith Hoppie in May 2022. It was said that the documents had been written whilst the 3 female co-accused were on remand together for a period of 12 days and on the same wing, before Ms Edwards-Hancock was granted bail.

[20]The letter and notes were similar in nature to the Telegram messages sent between Bruce-Annan and Hoppie and revealed that they were fabricating a story about the events of the 22/23 January 2022. The notes, written by Edwards-Hancock, advised Bruce-Annan and Hoppie how to manipulate an account around the available evidence and contained confessions to the robbery. The content appealed to Bruce-Annan not to implicate the other female co-accused and passages from those notes were repeated by Edwards-Hancock when she gave evidence that had not appeared in either her prepared statement or her defence statement.

[21]The judge gave a first ruling about the Notes in these terms, using the initials “TEH” for Edwards-Hancock and “GBA” for Georgia Bruce-Annan:

"6. I expressed the view on Friday that the documents were at least in part a confession to count 3 (as defined in section 82 of PACE). However the contents of the handwritten notes are clearly divisible between the small parts which arguably amount to confessions ('under no circumstances can you say that me and Faith knew there was gonna to be a robbery' etc.) and other parts which are rebuttal of TEH’s evidence that she has not concocted her story in conjunction with co-defendants. By excluding the confession evidence the remainder of the contents of the documents (the vast majority of the contents) are in my judgment admissible as previous inconsistent statements pursuant to section 4 Criminal Procedure Act 1865. This seems to me to be the fairest way of treating the evidence, rather than it being elevated to real evidence. 7. This material has come into the possession of the prosecution (and thereafter quite properly disclosed to others) during the course of the prosecution’s cross-examination of TEH, so her counsel have been unable to give advice or take instructions. Her counsel has not applied to me for permission to speak to her client. If asked I would give permission for her to take instructions upon whether the provenance of the documents is in dispute, but clearly it would not be appropriate for any such permission to extend to a wholesale conference on what has arisen. 8. However as is clear from the recent decision in R v Omar [2023] EWCA Crim 341 if evidence is to go before the jury it must not only be admissible, but also must be adduced as evidence. This would normally be done by a witness giving oral evidence to prove its provenance. In this case GBA has declined to give evidence, but the person said to be the author of the documents is in the middle of her evidence. 9. Submissions have been made that the documents can be proved through the evidence of Sharon Toor, GBA’s solicitor. I reject that submission. It would be wholly wrong for a party’s solicitor to give the hearsay evidence of a client who has declined to give evidence. In any event, as dealt with in paragraph 72 of Omar, such evidence could not prove provenance – only the circumstances in which the documents came into the solicitor’s possession. I hesitate to use the word “provenance” as it was a term to some extent criticised in oral submissions to me, but I do so using the word as a generic term to mean where, when and how the documents came into being as well as authorship. I also reject the submission that in reliance upon section 133 of the Criminal Justice Act 2003 the documents in question can in some way prove themselves. As Omar makes clear at paragraphs 74 and 75 someone has to produce the documents in evidence before the jury. 10. My task as trial judge is to ensure a fair trial – that of course means fair for all defendants, but also fair for the prosecution to enable it to put before the jury admissible and probative evidence. 11. The new material is clearly admissible. Provided the trial process can deal with it fairly I see no grounds to exclude it under section 78, subject to one aspect which I deal with later. I have said that I will give TEH’s counsel permission to speak to her client (notwithstanding that her client is in the course of giving evidence) to deal with specifically whether provenance is accepted. If it is then I will hear submissions upon how to proceed, but my preliminary view is that the prosecution should simply be allowed to put the documents to TEH in cross-examination as previous inconsistent statements. … 13. If provenance is accepted and TEH is cross-examined on its contents then the documents should not be exhibited – in common with the usual situation when a previous inconsistent statement is put to a witness. This should minimise the potential prejudice to co-defendants, particularly FH. Furthermore, she should not be cross-examined on those sections of the material which amount to a confession to count 3, which in my judgment is a small part of the material. The remainder of the material is no different to the contents of the Telegram messages already in the jury bundle. Fairness dictates that if provenance is accepted then TEH should be able to give any explanations for what the material appears to show. In exercising my wide discretion to exclude evidence which would be unfair to a defendant, it would in my judgment be unfair to adduce into evidence by cross-examination the aspects of the material which amount to a confession to count 3. TEH has not been able to give instructions upon the circumstances in which she wrote the documents and her legal team have been therefore unable to consider whether section 76 of PACE might be engaged. 14. If provenance is not accepted (either in evidence or upon instructions) then I will conduct a voir dire in the absence of the jury to determine whether I am satisfied so that I am sure of the provenance of the material. If I am then TEH can be cross-examined on the material as before. In those circumstances the jury would be the ultimate judges of fact as regards the material. 15. The effect of this ruling will be to enable the prosecution to seek to adduce the material upon which they seek to rely in a way which will not prejudice any party if provenance cannot be proved, and if adduced will provide defence legal teams with the material they need to attack TEH’s credibility in light of the “cut-throat” nature of some of her evidence."

Voir dire of Tianna Edwards-Hancock

[22]Edwards-Hancock was cross-examined in the voir dire by the Prosecution and by counsel for GordonandLeslie. There were similarities between the letters and the evidence she had already given. Her evidence was that Georgia Bruce-Annan was the author of the letters. She denied that whilst in custody she had spoken to her co-accused about their accounts or sought to persuade them to change them. She declined to continue giving evidence on the voir dire but was prepared to continue giving evidence before the jury.

Legal arguments on the voir dire

[23]Legal argument followed as to whether the notes, if genuine, could be used.

[24]Counsel for SakeemGordon submitted that i) The documents were relevant to his case. ii) The notes were admissible under section 76 PACE as confessions. iii) The notes were, in the alternative, admissible under section 76A PACE 1984 as confessions (on behalf of a co-accused). iv) The notes were admissible under section 4 Criminal Procedure Act 1865 as they were statements inconsistent with her answers in cross examination. v) The letters and notes demonstrated conclusively and unambiguously that Edwards-Hancock was attempting to persuade her female co-accused to fabricate a story according to her desired narrative, that she had lied to the jury about the collaboration and fractious relationship between her and the other female co-accused to create a false account and she had lied to the jury when asserting that she was not part of a conspiracy to rob.

Ruling on the voir dire – the confession material

[25]The judge was satisfied that the notes were genuine and that parts of the letters could be introduced into evidence as previous inconsistent statements pursuant to section 4 Criminal Procedure Act 1865. The letter and notes would not be given to the jury and those parts of the notes amounting to confessions to conspiracy to rob were not to be adduced in any way whatsoever. The authorship of the notes was in issue and would be a matter for the jury.

The Grounds of Appeal and the Response

[26]The Full Court refused leave to argue three grounds of appeal in Tevin Leslie’s case, but granted leave to appeal against conviction on the ground that the Judge erred in refusing to admit into evidence letters and notes between co-defendants in which admissions as to the conspiracy to rob were made.

[27]Sakeem Gordon’s ground of appeal against his conviction for murder is in these terms:- The Judge, having ruled after a voir dire that a letter and notes said to be written by Tianna Edwards-Hancock were genuine, should have admitted the notes in evidence, pursuant to s76A PACE 1984. The decision preventing the jury from hearing of the confession by Ms Edwards-Hancock to conspiracy to rob contained within the notes and the decision that the jury could not see the letter or the notes to assess them themselves was unfair to Sakeem Gordon. Ms Edwards-Hancock was running a cut throat defence against Gordon and hers was the sole evidence placing him in the same room as Mr Gohel when he was killed. The confessions and the nature of the notes were directly relevant to Ms Edwards-Hancock’s credibility.

[28]The Prosecution have lodged a Respondent’s Notice and Grounds of Opposition in which they submit as follows in relation to the ground relating to the Edwards-Hancock notes: Tevin Leslie i) The notes came to the attention of the parties during the cross examination of Edwards-Hancock by the Crown. The focus of the Judge’s ruling and the purpose of conducting the voir dire was centred on whether the Crown was permitted to cross-examine her on the contents of the notes. ii) Counsel for Tevin Leslie made an application for the confession material in the notes to be adduced on his behalf. It was argued that the issue was the credibility of Edwards-Hancock and the jury would be assisted by the further material in assessing her credibility. The Judge’s ruling that it was not necessary for the confession evidence to go before the jury was correct. The Judge’s ruling was understandable and correct. iii) Consideration of the physical notes did not assist with the issue of authorship, there was no evidence from an expert. Edwards-Hancock was resolute that she was not the author and the confession evidence would have added nothing to the issue of her overall credibility. The issue for the Jury to decide, in light of the guilty plea to manslaughter, was whether Tevin Leslie had an intent to kill Mr Gohel or at least intended to do him serious bodily harm. As he did not accept causing all of the injuries or that his actions led to death the manner in which death was caused was in issue. Leslie did not mention in his interview or defence statement that he had tried to restrain Mr Gohel and that others had got on top of him and he had become unconscious. The assertion made by Leslie that he lacked the requisite intent to be committed is an assertion of ‘fact’, as was that Mr Gohel was rendered unconscious. These facts were not mentioned, it was a matter for the jury whether the failure to answer/mention in interview was ‘reasonable in the circumstances’. The Judge’s directions were model directions of law to which no objection was taken. Sakeen Gordon The issue of Edwards-Hancock’s credibility was an important matter for Gordon. The confession material and the notes had no capacity to assist the jury any further with an assessment of her credibility over and above what they were provided by the contents that were put to her in cross-examination. There was ample material upon which the jury could convict Gordon, it was not only that Edwards-Hancock had placed him in the bedroom when the assault occurred.

[29]We helpfully received written and oral submissions from counsel for which we are grateful.

[30]The Full Court granted leave because it was concerned that the judge’s decision to exclude the evidence of the confession in the notes to robbery may have involved an error of law because there is no discretion to exclude relevant evidence which a defendant wishes to deploy in his defence in the interests of fairness to other parties. They observed that, if this is right, the evidence is far more significant in the case of Gordon than Leslie, because Leslie admitted being in the room at the time Mr. Gohel sustained his fatal injuries and to using force on him. Gordon denied being in the room at all, and the only direct evidence to the contrary came from Edwards-Hancock. The prosecution are quite right that proof of presence in the room is not necessary for a conviction for murder, but in this case the verdicts of the jury suggest strongly that they did regard that as a critical factor.

[31]Section 76A of the Police and Criminal Evidence Act 1984 provides as follows, so far as relevant:- 76A Confessions may be given in evidence for co-accused(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, in any proceedings where a co-accused proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained— (a) by oppression of the person who made it; 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 by him in consequence thereof, the court shall not allow the confession to be given in evidence for the co-accused except in so far as it is proved to the court on the balance of probabilities that the confession (notwithstanding that it may be true) was not so obtained. (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 by him in consequence thereof,

[32]It was not represented to the court by anyone that Edwards-Hancock had confessed to conspiracy to rob because of oppression or any circumstances likely to render it unreliable. She denied being the author of the notes. Accordingly, the judge approached the admissibility issue when dealing with an application by Leslie to adduce the evidence as one of relevance. Edwards-Hancock’s credibility, so far as he was concerned, only affected the question whether, as he said, she was involved with the other female defendants in a Facetime call with him before he decided to attend Bushey and take part in the planned robbery. He said that he had been assured by the female defendants (including Edwards-Hancock) when they arrived in the area of Mr Gohel’s address that there were no CCTV cameras. He was not inclined to go if there were cameras. This they had done by way of a FaceTime call made by Georgia Bruce-Annan in which all the female defendants took part. Leslie said Edwards-Hancock was present on the call, which she denied.

[33]The dispute between Edwards-Hancock and Gordon was, on any view, much more important. She said he had been in the room at the time when Mr Gohel was killed. He said he did not go into that room at all. Gordon’s counsel submitted that the confession was admissible under section 76A of the PACE before the judge made his exclusionary ruling .

Discussion

[34]In written submissions for the purpose of this appeal, the prosecution say this, after a careful analysis of the text of the notes: “13. “Confession” is defined in s82 PACE 1984: “confession”, includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise. Much of the material does not touch upon the apparent author (“the person who made it”) but is wholly or partly adverse to others notably GBA but also “the men” thereby including TL and SG, particularly SG given that he denied knowledge of let alone participation in a robbery. Of the remaining material a good deal is equivocal in that the it could be interpreted as the author denying responsibility and pleading with others not to suggest otherwise. However, given the context of creating a “story” that would be a generous interpretation and it is conceded, as argued in the Respondent’s application to adduce the material, that by placing pressure on the recipients of the letters to adopt a version of events and planning to manipulate an account around the available evidence there was, by inference, admissions as to a conspiracy to rob.14. It is therefore conceded as it was in the Respondent’s original skeleton argument at trial that much, although not all, of the material excised was capable of amounting to a confession within the meaning of the Act.

15. It is evident that the excised material had the capacity to be highly prejudicial to co-defendants, particularly those who maintained a total lack of knowledge of a conspiracy to rob including most obviously Faith Hoppie but also Sakeen Gordon.” “confession”, includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.

[35]We consider that this is a realistic approach and we agree that it represents the proper starting point for consideration of the judge’s ruling about the notes.

[36]The exclusionary power which exists in section 76A in relation to a confession by a co-defendant was not engaged on the facts of this case. There was no suggestion that, if she wrote the notes, Edwards-Hancock was suffering under oppression or any other circumstance which would affect their reliability. The judge excluded the confession exercising a common law power to exclude evidence which was relevant, certainly in the case of Gordon, but which was prejudicial to co-defendants. Does that power exist?

[37]The prosecution accept the significance of two authorities which postdate the implementation of the 1984 Act, namely R v Lobban

[1995] 1 W.L.R 877

and R v Myers

[1998] AC 124

. Lobban was a decision of the Privy Council and Myers of the House of Lords. In Lobban, having reviewed earlier authorities, their Lordships approved the following statement of the principle as set out by Scarman LJ in R v Neale

(1977) 65 Cr. App. R. 304

“The discretionary control the judge has in a joint trial or indeed any trial, that is to say the discretion to refuse to allow the Respondent to adduce, or elicit, evidence which though probative is so prejudicial that it should not be accepted, does not exist or arise when application is being made by a co-defendant.”

[38]Their Lordships then identified the submission being made on behalf of the appellant that a judge has a discretionary power, as between co-defendants, to exclude relevant evidence or to cause a document to be edited, on the ground that he is choosing the course which involves the lesser injustice as between the defendants. In respect of this submission their Lordships concluded that, “the discretion envisaged by counsel’s submissions, as deployed in a case such as the present, does not exist.”

[39]In Myers, having reviewed earlier authorities including Lobban, their Lordships approved the following statement of principle as set out by Lord Roskill in Lui Mei Lin v The Queen

[1989] AC 288

“The only limit on the right of a co-accused to cross-examine another co-accused in these circumstances is, in their Lordships’ opinion, relevancy. If one co-accused has given evidence incriminating another it must be relevant for the latter to show, if he can, that the former has on some other occasion given inconsistent evidence and thus is unworthy of belief.”

[40]The prosecution suggests that the consequences of the absence of an exclusionary discretion rule in such situations are what lay behind the following comments by Evans LJ in R v Thompson

[1995] 2 Cr. App. R 589

(delivered one month before the decision in Lobban):

“If there is no discretion to exclude evidence which is inadmissible against and prejudicial to one defendant, if it is relevant and therefore admissible in relation to a co-defendant, then the only discretionary safeguard is the cumbersome device of separate trials. This seems undesirable, and it might be preferable to allow a discretion where the prejudice is substantial and the evidence is only of limited benefit to the co-defendant. In practice, under the existing authorities, the protection lies in the narrow definition of relevant or ‘strictly relevant’ (Neale and Bracewell) rather than in the overt exercise of a discretion to exclude evidence which is of limited weight. A possible reference to the existence of a discretion is found in Bracewell where it is stated that a defendant should not be forced to fight “two quite different battles at the same time”

(p. 51). The same judgment, however, affirms the test of strict relevance which has to be applied in circumstances such as these. We should not like it to be thought that we have concluded that such a discretion can never exist, although the authorities make it difficult to hold that it does. In the present case, however, we are satisfied that, if there was such a power, it should be exercised in favour of admitting the evidence, for the reasons indicated above.”

[41]The prosecution then submits that there is no completely unfettered right to cross-examine a co-defendant in relation to confession material. A judge has a duty to exercise case management powers in order to ensure a fair trial and that may have the effect of excluding otherwise admissible material. Reliance is placed on R v Musone

[2007] EWCA Crim 1237

, wherea defendant sought to adduce evidence of an alleged confession to a previous murder by his co-defendant whilst both were on trial for murder. The Court of Appeal agreed with the trial judge’s determination that the alleged confession was admissible pursuant to s.101(1)(e) CJA 2003. The statute affords a trial judge no discretion to exclude such material if it satisfies that gateway’s test of being of substantial probative value in relation to an important matter in issue between the defendant and a co-defendant. Therefore, on the face of it there was no discretion to exclude the alleged confession. However, the Court of Appeal concluded that the trial judge had also been right to exclude the material as the way in which the issue had arisen during the course of the trial was clearly an ‘ambush’ and to have admitted the evidence would have been unfair to the co-defendant. The decision is, however, based on the construction and application of the Criminal Procedure Rules. The person seeking to rely on the material had failed to give the required notice in order to be able to ambush the co-defendant with it.

[42]Thus, no authority has been identified in which the tentative suggestion of Evans LJ 30 years ago in Thompson has been found to be the basis of the suggested discretion. The decision in Musone can only be applied against a defendant who seeks to adduce evidence having flagrantly breached the Criminal Procedure Rules. Neither Leslie nor Gordon did that. The evidence came into their possession via the prosecution and they had no opportunity to give any earlier notice than they did.

[43]We are therefore bound to adopt this approach to these appeals:- i) The evidence had to satisfy a test of “strict relevance” for it to be admitted in circumstances where it would prejudice co-defendants. ii) If it did satisfy the test of strict relevance, there was no discretion to exclude it in order to avoid that prejudice. iii) That will require a judge to consider whether any prejudice can be dealt with by directions to the jury, or whether it may be necessary to sever the trial. Severance in this situation is a last resort.

[44]The judge admitted much of the content of the notes but excluded the parts which were treated as admissions of guilt to the robbery. Given that Edwards-Hancock had given evidence on oath that she was not guilty of robbery, these were the parts which most fundamentally undermined her evidence. The judge’s directions about their significance focussed on the suggestion by the prosecution that they showed her dishonestly orchestrating a defence with the other females. The judge directed them that they had to be sure that she was the author before they could take them into account and concluded:- “But if you are sure that they were written by Ms Edwards Hancock, then I remind you again that they can only be used by you in her case, and not in any other defendant's case.”

[45]That was a correct direction in an important sense, but it did not deal with the proper approach to the arguments of those defendants who wanted the jury to take the notes into account in their cases as undermining evidence which Edwards-Hancock gave against them. There is no burden on a defendant to prove facts on which he relies to the criminal standard. This repeated an earlier direction

the judge had given:

“Before you can take these messages into account when you consider Tianna Edwards Hancock's evidence, you must be sure that she did write them. If you are not sure, you must ignore them and put them out of your mind. However, if you are sure that she did write them, then they can only be evidence against her and not against any other defendant.”

[46]If the jury thought that Edwards-Hancock was probably the author of the notes, but was not sure of it, then they could not rely on them against her, but that did not mean that they could not take that finding into account when deciding whether they were sure of the evidence they gave which conflicted with that of Leslie and Gordon.

[47]Turning to the grounds of appeal advanced by Gordon and Leslie, the confession in the notes was, in our judgment, correctly excluded in the case of Leslie. That was the position with the whole of the notes, in his case. The judge was correct to say that in his case they did not meet the test of relevance. The relevance of the confession was to the credibility of Edwards-Hancock and it tended to undermine her evidence. She, however, did not give any evidence which undermined his case. He agreed that he had been in the room at the time of the death and had used force against Mr Gohel. The issues in his case were intent, and how much force had had either used himself or assisted and encouraged others to use. Edwards-Hancock gave no evidence at all on those subjects and her disagreement with him about whether she had been on a relevant Facetime conversation earlier did not damage his case, whoever was right about it. In his case her credibility as a witness was simply irrelevant. In his case, the appeal fails and is dismissed.

[48]The position is different in the case of Gordon. Edwards-Hancock’s credibility was capable of being of great importance in his case and he should have been allowed to deploy all relevant material on that subject. The confession is quite a stark piece of evidence. It goes beyond what might be an attempt to harmonise accounts between co-defendants in manufacturing a defence case, into direct evidence of participation in the plan to rob Mr Gohel. The account she was attempting to persuade her female co-defendants to support was in some respects similar to what she said in evidence was the truth. The prosecution relied on a number of respects in which that was true to show that she had written the notes. This is an example, from the summing -up:

“And the note goes on, it was put to her: “We thought the plan was to manipulate Sam into overpaying us for sex. Only paying us for sex and drugs, and the only reason we didn't fuck was because he couldn't get his dick hard.”

Then she was asked this:

“That's your case to the jury, isn't it? That you were going to manipulate Sam into giving you drugs, and then hopefully didn't have to have sex with him, because he wouldn't be able to get an erection because of the cocaine.”

And Ms Edwards Hancock said, “Yes.””

[49]The confession was in a different category altogether.

[50]In our judgment, the judge excluded the confession evidence when he had no power to do so. It was not bad character evidence, because it had to do with the facts of the offence with which Edwards-Hancock was charged, see section 98 of the Criminal Justice Act 1998. Relevance was the only test and, whatever might be meant in this context by “strict relevance”, it was satisfied here.

[51]It is true, as the prosecution point out, that the judge did direct the jury in these terms:- “Now the effect of a defendant's evidence on co-defendants. You have heard evidence from a defendant which damages another defendant's case, or which implicates a co-defendant in the offences. Examine such evidence with particular care, for a defendant, in saying what he or she said, may have been more concerned about protecting his or her own position than about speaking the truth. Bear this in mind when considering what any defendant said which could implicate a co-defendant.”

[52]This direction would tend to alleviate the prejudice to Gordon from the evidence of Edwards-Hancock about his presence in the room at the time of the killing, but it does not direct the jury to ignore that evidence. It remained part of the material on which Gordon could have been convicted by the jury. Evidence of presence in the room at the material time was plainly an important component of the case against Gordon even if he could properly have been convicted of murder without it.

Result

[53]In these circumstances, we consider that the exclusion of the confession evidence was the result of an error of law and we find that it renders the conviction of Gordon unsafe. His appeal is allowed and the conviction for murder is quashed.

[54]A hearing will take place as soon as it can be arranged at which the court will consider, among any other matters which may arise:- i) Whether the conviction of Gordon for conspiracy to rob should also be quashed for the reasons which have led to the quashing of the murder conviction. ii) Whether the prosecution’s application for a retrial in the case of Gordon for murder (and if appropriate conspiracy to rob) should be granted.

[55]We direct that written submissions on these issues, and any other issues which arise, should be sequentially exchanged. Gordon’s counsel should serve their document first and the prosecution should respond. We will not specify precise dates and will leave counsel to deal with this. Both sets of submissions should be lodged with the Criminal Appeal Office by 5 September 2025 and we will try and list the first hearing as soon as possible after that. There is liberty to apply in writing by email if any party seeks a variation of these directions