R v Smith [2007] EWCA Crim 2105
The line of authorities on the Police and Criminal Evidence Act 1984 (PACE 1984), s 74 (admissibility of guilty plea of co-accused) as distilled in the judgment of Lord Justice Staughton in R v Kempster, [1989] 1 WLR 1125, [1990] 90 Cr App R 14 (indicating that s 74 should be applied sparingly, because the evidence that a now absent co-accused has pleaded guilty may carry enormous weight in the minds of the jury, but it is nevertheless evidence which cannot properly be tested in the trial of the remaining defendant) remains relevant despite the passing of the Criminal Justice Act 2003 (CJA 2003).
It remains of considerable importance to examine whether or not the case is one in which the admission of the plea of guilty of a now absent co-defendant would have an unfair effect upon the trial by closing off many, or even all, of the issues which the jury is trying.
It remains the case that if there is no real question but that the offence was committed by someone and the real issue is whether or not the present defendant is party to it, evidence of pleas of guilty is likely to be perfectly fair, though each case depends upon its own facts. However, it also remains true that such evidence may well be unfair if the issues are such that the evidence closes off the issues that the jury has to try.
