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KK v Director of Public Prosecutions

Whether evidence given in a Newton hearing by one defendant was admissible in a trial against a co-defendant where the trial and the Newton hearing were heard at the same time in the Youth Court.

http://www.bailii.org/ew/cases/EWHC/Admin/2016/1976.html

This was an appeal by way of case stated arising from a decision by District Judge Wright of the Youth Court at Uxbridge to hear at the same time and give a single judgment in respect of two defendants where one was having a trial (KK), having pleaded not guilty to robbery, and the other was having a Newton hearing (MGS), having pleaded guilty to robbery on a basis which was not accepted.

The facts were that on the afternoon of 8th July 2015 a girl reported having been robbed by two black males. Later that afternoon two males were photographed climbing into a house close to the scene of the robbery. KK and MGS were subsequently arrested later that day. KK gave a no comment interview. During an identification parade, the girl and her friend (a witness to the robbery) picked out MGS, neither identified KK. KK and MGS were charged with robbery and false imprisonment.

In the Newton hearing MGS identified KK as the person who had been with him when the Complainant's mobile phone was taken. It was clear from the DJ's reasons that she relied on MGS's evidence in the Newton hearing to conclude that KK was the person who robbed the Complainant.

There were two main questions which fell to be answered by the Divisional Court:
Was the evidence of MGS in the Newton hearing admissible against KK in his trial? If it was not admissible, was KK's conviction safe?

How should the Youth Court proceed in similar circumstances in the future?

Held

The evidence of MGS was inadmissible in the trial of KK. Per Lord Thomas CJ: "He [MGS] was therefore not a witness in the trial of KK and the evidence he gave [...] should not have been admitted or taken into account in any way by the judge in determining the guilt of KK".

Following R v Patrick Smith (1988) 10 Cr App R (S) 271, in these circumstances in the Crown Court the guilt or innocence of KK would have been determined by a jury with a separate Newton hearing then following in respect of MGS, albeit with the same trial judge.
In the Youth Court, it will generally be fair to follow the process identified in Smith. However, there may be some very rare cases when that process is not appropriate. KK's was one such case.

The appeal was allowed, KK's conviction was quashed and a retrial was ordered to take place before a different judge.

1 September 2016

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