Incriminating a Defendant with Second-hand Evidence of a Co-defendant’s Confession
Thakrar  EWCA Crim 1505 is the latest in a long line of appellate cases concerning the admissibility of confession evidence, but the judgment is unusual in that it does not concern itself at any point with PACE, ss. 76 or 76A. Instead, it examines admissibility under the CJA 2003, ss. 114, 116 and 121. Thakrar is also noteworthy in that the court was untroubled by the use of one defendant’s confessions to incriminate the other, even though the latter was not even present when any of those confessions were made. At common law, and under PACE, s. 76(1), this could never have been permitted. Has the CJA 2003 somehow removed that prohibition? It does not do so expressly, and indeed it contains one provision (s. 128(2)) that appears to preserve it.
The confession evidence in question was adduced at second-hand. The Thakrar brothers (Miran and Kevan) faced multiple charges of murder and attempted murder, together with a related firearms offence. They were alleged to have gunned down or stabbed their victims in a bloody massacre at a drug-dealer’s house in Bishops Stortford, following which they sought refuge in Northern Cyprus. Miran went into hiding there, but Kevan was arrested as he attempted to board his flight at Heathrow.
Miran was eventually tracked down and extradited to England, following which the Northern Cyprus police interviewed a number of his associates there. Written statements were obtained from three of those associates. They each referred to confessions (or boasts that in law amounted to confessions) allegedly made to them by Miran. These confessions demonstrated extensive knowledge of the crime and also incriminated Kevan as his accomplice. The witnesses who provided the statements could not be persuaded to come to England to testify.
Professor Hirst explains:
I do not as yet have a view on whether either of the Thakrar’s convictions were justified and was not aware of the campaign, but I agree that there is at least a technical issue as to the legitimacy of using Miran’s confession to incriminate Kevan.
See more recently R v Thorpe and Clarke  EWCA Crim 1128, which is interesting because it features a ‘u-turn’ judgment by Hughes LJ (now Lord Hughes) who had previously done much to support the idea that D1 could be incriminated by the pre-trial statements or confessions of D2.
Referring to a confession (or more specifically a partial confession or ‘mixed statement’) that Thorpe (a defendant in a murder case) allegedly made to a prison chaplain, Hughes LJ said:
“Whilst the statement was … undoubtedly admissible [against Thorpe] we should record that the initial suggestion by the Crown that it might be admissible against both defendants and thus admissible against Clarke by being adduced with the leave of the court under section 114(1)(d) of the Criminal Justice Act 2003, was a suggestion which was well repented of. Like the judge, we can see practically no circumstances in which a conversation of this kind, purportedly implicating a co?accused, would be admitted under section 114(1)(d).”
Hughes LJ does not go so far as to say ‘never’, nor does he suggest that s. 114(1)(d) is incapable of application to such a case. He suggests instead that in practice the interests of justice would hardly ever be served by admitting such evidence against a co-defendant. But no reference was made to Thakrar, and the two cases are not easily reconciled. Nor do any of the cases so far reported refer to s. 128(2), which appears to have become the ‘forgotten provision’ of the 2003 Act.