Critical Analysis
\nOrder Description
\nThis a critical Assessment of the merit of the decision of the majority in R v Hayter[2005]. The topic (sample nursing essay examples by the best nursing assignment writing service) relates to the chapter of \u2018Confessions\u2019 in the subject of the LAW OF EVIDENCE. This essay is very important for me. I would expect a sophisticated essay full with critical Assessments (actually my law school\u2019s expectation). Use relevant case law as well as at least 3 journal articles and at least 2\/3 books(please no old books) or more to support your arguments. I will upload 3 documents ie the main question, a PowerPoint slides on Confessions which contains general information on the topic (sample nursing essay examples by the best nursing assignment writing service) of confessions and finally the main judgment of R v Hayter to save your time. Let me know if you need anything more.<\/p>\n
Question:
\n\u201cIn my respectful view, the Crown are in substance asserting that the jury have a power to turn inadmissible into admissible evidence, and to convict a defendant by using evidence that is inadmissible against him.\u201d Per Lord Rodger (dissenting) in R v Hayter [2005] UKHL 6; [2005] 1 W.L.R. 605, at [47]
\nIn light of this statement critically evaluate the merit of the decision of the majority in Hayter in allowing a confession to be used against the non-maker of it.
\n*605 Regina v Hayter
\nHouse of Lords
\n3 February 2005
\n[2005] UKHL 6
\n[2005] 1 W.L.R. 605
\nLord Bingham of Cornhill, Lord Steyn, Lord Rodger of Earlsferry, Lord Carswell and Lord Brown of
\nEaton-under-Heywood
\n2004 Dec 9; 2005 Feb 3
\nCrime\u2014Evidence\u2014Admissibility\u2014Defendant tried jointly with others for joint offence\u2014Case against
\ndefendant dependent upon Crown establishing case against co\u2014defendant\u2014Case against
\nco\u2014defendant based solely on out of court admissions inadmissible against defendant\u2014Crown not
\nusing evidence to confront any part of defendant’s defence\u2014Whether finding of guilt against
\nco\u2014defendant admissible against defendant
\nThe defendant and two others, R and B, were indicted on a count of murder. All three were tried
\njointly. The Crown alleged that R had been the killer, that B had procured the murder and that the
\ndefendant had acted as the middleman. It was common ground that should the case against
\neither R or B fail the case against the defendant would also fail. The case against R was based
\nentirely on admissions made by him out of court and in the absence of the defendant. At trial the
\nCrown did not use R’s admissions to confront any part of the defendant’s defence. At the close of
\nthe Crown’s case the defendant submitted that there was no case for him to answer on the
\nground that, since R could only be convicted on the basis of his out of court admissions, there
\nwas no evidence admissible as against the defendant that R was the killer, and accordingly the
\ncase against him was bound to fail. The judge rejected that submission and in his summing up
\ndirected the jury that, if they were satisfied on the evidence admissible against R that R was the
\nkiller, then that established fact was available to them in considering the case against the
\ndefendant, but that they should take care not to allow anything in R’s admissions to play any part
\nin their consideration of the defendant’s case. B, R and the defendant were convicted. The Court
\nof Appeal dismissed the defendant’s appeal and upheld the trial judge’s ruling and directions to
\nthe jury.
\nOn the defendant’s appeal-
\nHeld, dismissing the appeal (Lord Rodger of Earlsferry and Lord Carswell dissenting), that when
\nin a joint trial the case against a defendant depended on the prosecution proving the guilt of a
\nco-defendant, and the evidence against the co-defendant consisted solely of his own out of court
\nconfession, then that confession would be admissible as against the defendant only in so far as it
\nwent to proving the co-defendant’s guilt; that the admissibility of the confession as against the
\ndefendant was subject to two conditions, first, that the jury were sufficiently sure of its
\ntruthfulness to decide that on that basis alone they could safely convict the co-defendant, and,
\nsecondly, that the jury were expressly directed that when deciding the case against the
\ndefendant they must disregard entirely everything said by the co-defendant in the confession
\nwhich might otherwise be thought to incriminate the defendant; that at the end of the prosecution
\ncase the defendant would have a case to answer, because the jury could properly find that the
\nco-defendant was guilty on the basis of his own confession, and then go on to find that the fact of
\nthe co-defendant’s guilt coupled with any other evidence incriminating the defendant was
\nsufficient to prove his guilt; and that, accordingly, the trial judge had been right to reject the
\ndefendant’s submission of no case to answer and his direction to the jury had been correct (post,
\nparas 1, 18-24, 31, 79, 84- 91).
\nDecision of the Court of Appeal (Criminal Division) [2003] EWCA Crim 1048; [2003] 1 WLR 1910
\naffirmed.
\n*606
\nThe following cases are referred to in the opinions of their Lordships:
\nPage 1
\nAdvocate (HM) v Kemp (1891) 3 White 17
\nHollington v F Hewthorn & Co Ltd [1943] KB 587; [1943] 2 All ER 35, CA
\nLobban v The Queen [1995] 1 WLR 877; [1995] 2 All ER 602, PC
\nMcIntosh v HM Advocate 1986 SC 169
\nMontes v HM Advocate 1990 SCCR 645
\nMyers v Director of Public Prosecutions [1965] AC 1001; [1964] 3 WLR 145; [1964] 1 All ER
\n877, HL(E)
\nR v Blastland [1986] AC 41; [1985] 3 WLR 345; [1985] 2 All ER 1095, HL(E)
\nR v Hickey (unreported) 30 July 1997, CA
\nR v Lake (1976) 64 Cr App R 172, CA
\nR v Randall [2003] UKHL 69; [2004] 1 WLR 56; [2004] 1 All ER 467, HL(E)
\nR v Rhodes (1959) 44 Cr App R 23, CCA
\nR v Spinks [1982] 1 All ER 587; 74 Cr App R 263, CA
\nRutherford v Richardson [1923] AC 1, HL(E)
\nTeper v The Queen [1952] AC 480; [1952] 2 All ER 447, PC
\nThe following additional cases were cited in argument:
\nR v Donald (1986) 83 Cr App R 49, CA
\nR v Robertson [1987] QB 920; [1987] 3 WLR 327; [1987] 3 All ER 231, CA
\nAPPEAL from the Court of Appeal (Criminal Division)
\nBy leave of the House of Lords (Lord Bingham of Cornhill, Lord Hobhouse of Woodborough and Lord
\nRodger of Earlsferry) granted on 28 October 2003, the defendant, Paul Ali Hayter, appealed from a
\ndecision of the Court of Appeal (Mantell LJ, Jack and Hedley JJ) on 16 April 2003, dismissing the
\ndefendant’s appeal against his conviction for murder at the Central Criminal Court on 3 July 2001
\nbefore Judge Hyam, Recorder of London, and a jury.
\nThe Court of Appeal certified under section 33(2) of the Criminal Appeal Act 1968 that a point of law
\nof general public importance was involved in the decision, namely:
\n“(1) In a joint trial of two or more defendants for a joint offence is a jury entitled to
\nconsider first the case in respect of defendant A which is solely based on his own out of
\nPage 2
\ncourt admissions and then to use their findings of A’s guilt and the role A played as a
\nfact to be used evidentially in respect of co-defendant B”
\nand if so,
\n“(2) Where proof of A’s guilt is necessary for there to be a case to answer against B, is
\nthere a case to answer against B at the close of the prosecution case where the only
\nevidence of A’s guilt is his own out of court admissions”
\nThe facts are stated in the opinions of their Lordships.
\nJohn Kelsey-Fry QC for the defendant.
\nMark Dennis and Robin McCoubrey for the Crown.
\nTheir Lordships took time for consideration.
\n*607
\n3 February 2005. LORD BINGHAM OF CORNHILL
\n1 My Lords, I have had the advantage of reading in draft the opinions of all my noble and learned
\nfriends. For the reasons given by Lord Brown of Eaton-under-Heywood, which are substantially those
\nof Lord Steyn also, I too would answer both the certified questions in the affirmative and would
\naccordingly dismiss this appeal.
\nLORD STEYN
\nI. The case in a nutshell
\n2 My Lords, on the present appeal a point of law of general public importance arises about the
\nprinciple that the confession of a defendant is inadmissible in a joint criminal case against a
\nco-defendant.
\n3 What the point is, and how it arises, is best introduced by a simplified description of the real case of
\nmurder which in June 2001 came for trial before Judge Hyam, the Recorder of London, and a jury.
\nThe trial took place at the Central Criminal Court. Three defendants were charged with murder. All
\nthree were indicted as principals. The prosecution case was as follows. The first defendant (Bristow)
\nwas a woman who wanted to arrange a contract killing of her husband. The evidence against her
\ncame from a number of sources and was cogent. The third accused (Ryan) was the killer who actually
\nshot and killed the husband of the first defendant. The evidence against the killer was solely based on
\na confession which he had allegedly made to his girlfriend. The prosecution case was that the
\ncontract killing was arranged by the first defendant through the second defendant (Hayter) who
\nengaged and paid the killer. The judge invited the jury to consider in logical phases the cases against
\nthe alleged killer, then against the woman who allegedly procured the killing, and finally against the
\nmiddleman. The judge directed the jury that only if they found both the actual gunman, and the
\nwoman who arranged the killing, guilty of murder, would it be open to them, taking into account those
\nfindings of guilt, together with other evidence against the middleman, to convict the middleman. The
\njury convicted all three defendants of murder.
\n4 The principal argument on behalf of the middleman was and is that the rule that an out of court
\nconfession by one defendant may not be used by the prosecution against a co-defendant has been
\nbreached by the way in which the judge directed the jury.
\n5 In a reserved judgment given by Mantell LJ the Court of Appeal (Criminal Division) [2003] 1 WLR
\n1910 upheld the rulings of the trial judge and dismissed the appeal of the middleman. The court
\ngranted a certificate that a point of law of general public importance under section 33(2) of the
\nCriminal Appeal Act 1968 was involved in the decision. The certified questions were as follows:
\n“(1) In a joint trial of two or more defendants for a joint offence is a jury entitled to
\nconsider first the case in respect of defendant A which is solely based on his own out of
\nPage 3
\ncourt admissions and then to use their findings of A’s guilt and the role A played as a
\nfact to be used evidentially in respect of co-defendant B” and, if so,
\n“(2) Where proof of A’s guilt is necessary for there to be a case to answer against B, is
\nthere a case to answer against B at the close of the *608 prosecution case where the
\nonly evidence of A’s guilt is his own out of court admissions”
\nThe Court of Appeal refused leave to appeal. The House of Lords granted leave to appeal.
\nII. A joint trial
\n6 The practice favouring joint criminal trials is clear. It has been accepted for a long time in English
\npractice that, subject to a judge’s discretion to order separate trials in the interests of justice, there are
\npowerful public reasons why joint offences should be tried jointly: R v Lake(1976) 64 Cr App R 172,
\n175 , per Widgery CJ. While considerations of the avoidance of delay, costs and convenience, can be
\ncited in favour of joint trials this is not the prime basis of the practice. Instead it is founded principally
\non the perception that a just outcome is more likely to be established in a joint trial than in separate
\ntrials. The topic (sample nursing essay examples by the best nursing assignment writing service) is intimately connected with public confidence in jury trials. Subject to a judge’s
\ndiscretion to order otherwise, joint trials of those involved in a joint criminal case are in the public
\ninterest and are the norm. This practice hardly requires citation of authority but in recent times the
\npractice has been affirmed by the Privy Council in Lobban v The Queen [1995] 1 WLR 877, 884b-d
\nand by the House of Lords in R v Randall [2004] 1 WLR 56, 61f, para 16. Conceivably, in the present
\ncase, the middleman could have applied for an order severing his case on the ground that he might
\nbe prejudiced in a case in which a co-accused (Ryan) allegedly made a confession. The answer to
\nsuch an application would usually be that the judge would give appropriate directions. In some cases
\nsuch directions may include directions about the editing of a confession. In the present case no
\napplication for severance was made. If it had been made, it would almost certainly have been
\nrefused. It was in the public interest that the three accused should be tried jointly. It was a paradigm
\ncase for a joint trial.
\nIII. The rule about confessions
\n7 A voluntary out of court confession or admission against interest made by a defendant is an
\nexception to the hearsay rule and is admissible against him. That was so under the common law.
\nThat is also the effect of section 76 of the Police and Criminal Evidence Act 1984. (Given the wide
\ndefinition of confession in section 82(1) of PACE I will simply refer to confessions.) A confession is,
\nhowever, generally inadmissible against any other person implicated in the confession. The rationale
\nof the rule was stated in Digest of the Law of Evidence, 12th ed (1936), by Sir James Fitzjames
\nStephen as follows, at p 36:
\n“A confession is an admission made at any time by a person charged with a crime,
\nstating or suggesting the inference that he committed that crime. Confessions, if
\nvoluntary, are deemed to be relevant facts as against the persons who make them
\nonly.” (My emphasis.)
\nIn a joint trial the prosecution may not rely on what the maker of a confession said against a
\nco-accused. This is a general rule of law. It is buttressed by a rule of practice requiring a trial judge to
\ndirect the jury to *609 ignore a confession made by an accused in considering the case against a
\nco-defendant.
\n8 The confession of Ryan was irrelevant and inadmissible in the case against the other defendants.
\nAnd the judge was bound, in accordance with well settled principles of criminal practice, to direct the
\njury accordingly. That is exactly what he did.
\n9 For the sake of completeness, I would mention section 76A of PACE which was inserted by section
\n128 of the Criminal Justice Act 2003. Section 76A(1) provides that, subject to its terms, a confession
\nmade by an accused person may be given in evidence for another person charged in the same
\nproceedings (a co-accused) in so far as it is relevant to any matter in the proceedings. This provision
\nhas not yet been brought into operation. And, in any event, on the facts of this case it would not have
\nbeen relevant even if it had been in operation.
\nPage 4
\nIV. The prosecution case
\n10 The shape of the prosecution case against the three accused was as follows. The indictment
\ncharged Angela Bristow, Paul Hayter and Raymond Ryan, respectively accused Nos 1, 2 and 3, with
\nthe murder of Mario Commatteo. On 30 March 2000 he was shot in the head at point blank range with
\na 12-bore shotgun as he was leaving his home. He died instantly. Bristow lived with the deceased. In
\nthe case against Bristow there was abundant evidence that in the two years preceding her husband’s
\ndeath she had repeatedly stated to various witnesses that she wanted him killed. On occasions she
\nasked witnesses whether they could help to kill him. There was evidence of association between
\nBristow and Hayter (the alleged middleman) during the first half of 2000 including a number of
\ntelephone calls. Hayter was a frequent customer of Bristow’s sandwich shop. In turn Bristow was a
\ncustomer of Hayter’s car-wash. There was also evidence of associations between Hayter and Ryan.
\nIn addition there was evidence that on two occasions after the murder Hayter had sent packages
\ncontaining \u00a3400 and \u00a3500 in cash to Ryan via the witness Lee Salter who was then employed by
\nHayter. There was evidence from which the Crown invited the jury to infer that the money came from
\nBristow who, it was suggested, had added the money to the bags of sandwiches which Lee Salter
\nhad been sent to collect by Hayter. When seen by the police in July 2000 Hayter had falsely
\nminimised the extent of his association with both co-defendants and maintained that position when he
\nwas arrested and interviewed under caution in September 2000. The Crown conceded at trial that the
\ncircumstantial evidence against Hayter did not provide a case to answer unless it could be proved
\nthat Ryan was the killer. The case against Ryan was dependent upon his alleged confessions to his
\ngirlfriend Vanessa Salter. There was no evidence independent of those confessions which identified
\nRyan as the killer. In those confessions Ryan was alleged to have implicated Hayter as his recruiter
\nand paymaster.
\nV. Ruling on the submission of no case to answer
\n11 At the end of the prosecution case counsel for Bristow invited the judge to rule that she had no
\ncase to answer. The judge rejected this submission. Counsel for Hayter, but not counsel for Ryan,
\nmade a similar *610 submission that Hayter had no case to answer. The judge held that if the jury
\nwere satisfied on evidence admissible against Ryan that he was the killer then that conclusion was
\nrelevant in considering the case against Hayter. The judge observed:
\n“This analysis shows that the prosecution are not using and do not seek to use the
\nalleged confession of [Ryan] to confront any part of [Hayter’s] defence. There is thus no
\nerosion of the fundamental evidential rule that the alleged confession of one defendant
\nin the absence of the other defendant is not evidence against that other defendant.”
\nThis ruling formed the legal basis on which the judge in due course summed up the case against
\nHayter.
\nVI. The evidence for the defence
\n12 The case continued against all three defendants. Bristow and Ryan testified in their own defence.
\nHayter did not give evidence.
\nVII. The judge’s summing up
\n13 The judge gave a detailed summing up which, leaving aside the points of law in issue, has not in
\nany way been criticised. It was a characteristically thorough and helpful summing by the late Recorder
\nof London.
\n14 It is only necessary to deal with the summing up so far as it has an impact on the points of law at
\nissue. The judge directed the jury in clear terms that the evidence of Vanessa Salter about the
\nconfession that Ryan allegedly made to her was only evidence in the case against Ryan and not
\nevidence in the separate cases against Bristow and Hayter. It is necessary to set out the relevant part
\nof the summing up in extenso:
\nPage 5
\n“The second distinction that I should make as a matter of law between Vanessa Salter’s
\nevidence of Raymond Ryan’s confession only being admissible against him is this. If, as
\na result of considering her evidence, you were sure that Raymond Ryan murdered
\nMario, you could properly use that finding of guilt in your consideration of the cases of
\nAngela Bristow and Paul Hayter. Your approach to those cases will then be to use the
\nfact of Raymond Ryan’s guilt simply as a fact in the consideration of the cases of the
\nother two defendants.
\nIf you are sure of the fact of Raymond Ryan’s guilt, you could then go on to consider the
\nindividual cases of Angela Bristow and Paul Hayter on the admissible evidence against
\nthem, all the while, taking care not to allow anything in Vanessa Salter’s evidence
\nregarding Raymond Ryan’s confession which may have indicated Angela Bristow or
\nPaul Hayter to play any part in your consideration of their cases.
\nIn short, if you found Raymond Ryan guilty you could use the fact of his guilt in your
\nconsideration of his co-defendants’ cases, but not allow any of the evidence of Vanessa
\nSalter as to what Raymond Ryan may have said to her to play any further part in your
\ndeliberations.
\nIt is for that reason I strongly advise you as a matter of logic and good sense to consider
\nfirst the case of Raymond Ryan.
\n*611
\nIf you find him guilty, you may use the fact of guilt in the way I have just described in
\nyour consideration of the case of Angela Bristow and of Paul Hayter.
\nIf you have found Raymond Ryan guilty, you should then consider the case of Angela
\nBristow, and finally the case of Paul Hayter. If, in following that advice you found
\nRaymond Ryan not guilty, or Angela Bristow not guilty, you would not have to consider
\nthe case of Paul Hayter at all; because if Raymond Ryan did not on your finding kill
\nMario Commatteo you must acquit Paul Hayter because the prosecution would have
\nfailed to prove both that Angela Bristow had procured him to kill Mario and that he had
\nprocured Ryan to kill him.
\nYou would, of course, have to consider whether Angela Bristow was guilty of procuring
\nMario’s death, notwithstanding that Ryan did not do it upon the basis I explained earlier
\nwhen defining her role as an accessory for murder. I said that if you were sure first that
\nshe procured Mario’s death by recruiting another, or others, to kill him. Secondly, that
\nwhen she procured another or others you are sure that she did so with the intention of
\nbringing about Mario’s death.
\nSo the position, in brief, is that you should if you follow my advice, consider Raymond
\nRyan’s case first. If you conclude that he is not guilty of that offence, you would
\nautomatically conclude that Paul Hayter is also not guilty.
\nYou would none the less go on to consider whether Angela Bristow was nonetheless
\nguilty because she procured another, or others, to kill with the intention that Mario
\nshould be killed.
\nIf, on the other hand, you were to find Raymond Ryan guilty, then you would go on to
\nconsider the case of Angela Bristow. If you found Angela Bristow guilty as well as
\nRaymond Ryan, then you would go on to consider the case against Mr Hayter. If you
\nfound Angela Bristow not guilty, even or though you found Ryan guilty, you would have
\nto find Paul Hayter not guilty, because the link in the case of Mr Hayter is that you must
\nfind both Raymond Ryan and Angela Bristow guilty before you could find the defendant,
\nMr Hayter, guilty.”
\nThese are the passages in the summing up which are relevant to the points of law on this appeal.
\nVIII. The convictions
\n15 On 3 July 2001, the jury returned verdicts of guilty of murder against all three accused. The judge
\nPage 6
\nsentenced each to life imprisonment.
\nIX. The Court of Appeal judgment
\n16 Hayter appealed to the Court of Appeal (Criminal Division). He relied on two grounds of appeal.
\nFirst, his case was that the judge had erred in law (1) in directing the jury that, in the event that they
\nconvicted Ryan of murder, they could use their finding that he was the killer as evidence in the case
\nagainst Hayter and, (2) in failing to withdraw the case from the jury at the close of the Crown’s case
\nwhen there was no evidence admissible against Hayter sufficient to amount to a case to answer.
\n17 The Court of Appeal took the view that the judge’s reasoning was in accord with first principles: R v
\nHayter [2003] 1 WLR 1910. *612 Mantell LJ reviewed three earlier decisions of the Court of Appeal,
\nviz R v Rhodes (1959) 44 Cr App R 23; R v Spinks [1982] 1 All ER 587; R v Hickey (unreported) 30
\nJuly 1997 (the “Carl Bridgewater” case). Mantell LJ observed, at p 1914, para 16:
\n“it is perhaps worth remembering that at the time of both decisions [R v Rhodes and R v
\nSpinks] evidence of a prior conviction would not have been admissible in separate
\ncriminal proceedings to establish the truth of the underlying allegation: see Hollington v
\nF Hewthorn & Co Ltd [1943] KB 587. If it is necessary to say so, the same is true of the
\ntime when the trial of Hickey took place.”
\nMantell LJ drew attention to section 74 of PACE. It provides:
\n“In any proceedings the fact that a person other than the accused has been convicted of
\nan offence by or before any court in the United Kingdom or by a Service court outside
\nthe United Kingdom shall be admissible in evidence for the purpose of proving, where to
\ndo so is relevant to any issue in those proceedings, that that person committed that
\noffence, whether or not any other evidence of his having committed that offence is
\ngiven.”
\nMantell LJ observed that section 74 removed the foundation for the decisions in R v Spinks and R v
\nRhodes, at p 1915c, para 18. He did not think that the three decisions reviewed by him stood in the
\nway of applying the principled analysis adopted by the trial judge.
\nX. The primary submission of Hayter
\n18 Counsel for Hayter relied on the general rule that a confession is only relevant and admissible
\nagainst the maker of it. The existence of this rule, as well as the auxiliary rule that a trial judge in a
\njoint trial must direct a jury not to rely on the confession of one defendant against other defendants, is
\nnot in doubt. The controversy is about the application of the rule in the present case. Counsel for
\nHayter said that his central submission was that the judge, by permitting the jury to use their finding
\nthat Ryan was guilty, in effect permitted the jury to rely on the words and content of the confession of
\nRyan as evidence against Hayter.
\nIn my view counsel for Hayter has not established this proposition. In clear terms the judge directed
\nthe jury not to take into account the words or content of Ryan’s confession in the case against Hayter.
\nSubject to the jury being satisfied of the guilt of Ryan and Bristow, he directed the jury that they could
\ntake into account those findings, together with other evidence, in the case against Hayter. There is,
\ntherefore, no direct or indirect infringement of the rule. This becomes even clearer when one bears in
\nmind that the mischief at which the rule is directed is to prevent the content or words of a confession
\nto be used against anybody but the maker. The judge, of course, directed the jury that they could not
\nuse the content or words of any part the confession of Ryan against Hayter. And there is no reason to
\ndoubt that the jury would have understood and given effect to this direction.
\n20 This conclusion is reinforced if one postulates, contrary to the facts of the case, that Ryan made
\nno out of court confession but that his guilt was established by an eye witness, a fingerprint or
\ncircumstantial evidence. In such circumstances counsel for Hayter rightly accepted that the judge
\nwould *613 have been entitled to direct the jury that they may take into account their finding that Ryan
\nwas guilty of murder in considering the case against Hayter. What is the difference Counsel for
\nHayter said that in the case of evidence by an eye witness, a fingerprint or circumstantial evidence,
\nPage 7
\nthe evidence is “evidence in the whole case”. This is analytically not an answer. It obscures the true
\nposition. It is necessary to consider the case against each defendant separately. That is part of the
\nvery alphabet of criminal practice. The three hypothetical types of evidence against a gunman in the
\nposition of Ryan would be irrelevant to the case against Hayter and would therefore as a matter of law
\nbe inadmissible in the separate case as against Hayter. On the hypothesis that there was evidence in
\nsuch categories the judge would in practice not have directed the jury to ignore such evidence. The
\nreason is, of course, that it is perfectly obvious that none of these categories of evidence could
\nimplicate Hayter. It would be unnecessary to give any such direction. On the other hand, a finding by
\nthe jury that Ryan was guilty of murder in the three postulated cases could logically be relevant in the
\ncase against Hayter. Counsel for Hayter accepted this proposition. If that is right, there is no sensible
\nor rational reason why the same should not apply in the case of an out of court statement by a
\ndefendant. Logically this strongly reinforces the conclusion I have reached. Criminal practice is not
\nimpervious to logic.
\n21 It is also necessary to approach the point from the perspective of policy. The rule in Hollington v F
\nHewthorn & Co Ltd [1943] KB 587, was to the effect that evidence that a person had been convicted
\nof an earlier offence was inadmissible in civil or criminal proceedings so as to prove that that person
\nhad in fact committed the offence. This rule was abolished for civil proceedings by section 11 of the
\nCivil Evidence Act 1968 and for criminal proceedings by sections 74-75 of the Police and Criminal
\nEvidence Act 1984: see Current Law Statutes Annotated 1984 , vol 4, p 60-120. This legislation
\nmarked an advance of the rationality of our law. It is true that section 74 of PACE is not available to
\nprove the guilt of one defendant of the offence which is the subject of a joint trial. Given the legislative
\npolicy underlying section 74, it would, however, be curious if the procedure adopted by the Recorder
\nof London in the present case is not available in a joint trial. That is when in practice it is most
\nneeded. Counsel observed that the remedy was to indict Ryan separately and to adduce his
\nconviction against Hayter in a subsequent trial. That would have been possible. But, for reasons I
\nhave already set out, such a procedure would have been contrary to the public interest. The policy
\nunderlying section 74 suggests that it would be wrong and anomalous now to give an unnecessarily
\nexpansive reach to the rule about out of court confessions.
\n22 In a generally favourable case note on the decision of the Court of Appeal in the present case
\nProfessor Diana Birch [2003] Crim LR 887-888 pointed out that a joint trial has the advantage that the
\nsecondary party is in a better position to challenge the evidence pointing to the guilt of the principal
\nand does not incur any burden of proof even where the evidence against the principal is extremely
\nstrong. The procedure adopted by the Recorder of London served the interests of justice.
\n23 In my view the Court of Appeal correctly concluded for the reasons Mantell LJ gave that the
\ndecisions in R v Rhodes and R v Spinks do not stand in the way of a principled decision such as the
\nRecorder of London adopted. Nowadays, and particularly since the enactment of section 74, these
\ncases *614 would be differently decided. And at the time when the trial of R v Hickey took place
\nHollington v F Hewthorn & Co Ltd [1943] KB 587 still held sway. In any event, so much went wrong in
\nthe case of Hickey, as counsel for the Crown showed, that this decision ought not to be allowed to
\ncontinue to bedevil any branch of criminal law.
\n24 For these reasons I would reject the primary argument on behalf of Hayter.
\n25 If I am wrong in my approach, I would conclude that only a modest adjustment of the rule about
\nout of court confessions in joint trials is necessary and I would be prepared to make a modification
\nsanctioning the sensible and just procedure adopted by the Recorder of London. It is a principled
\nevolution in keeping with modern developments, statutory and judge made, which corrected some of
\nthe worst absurdities of the law of evidence of a bygone era. This view is reinforced if one stands
\nback and considers the rule in question in a broader legal context. The rule about confessions is
\nsubject to exceptions. Keane, The Modern Law of Evidence 5th ed (2000), pp 385-386, explains:
\n“In two exceptional situations, a confession may be admitted not only as evidence
\nagainst its maker but also as evidence against a co-accused implicated thereby. The
\nfirst is where the co-accused by his words or conduct accepts the truth of the statement
\nso as to make all or part of it a confession statement of his own. The second exception,
\nwhich is perhaps best understood in terms of implied agency, applies in the case of
\nconspiracy: statements (or acts) of one conspirator which the jury is satisfied were said
\n(or done) in the execution or furtherance of the common design are admissible in
\nevidence against another conspirator, even though he was not present at the time, to
\nPage 8
\nprove the nature and scope of the conspiracy, provided that there is some independent
\nevidence to show the existence of the conspiracy and that the other conspirator was a
\nparty to it … There is also a third exception, in fact an extension of the second: when,
\nalthough a conspiracy is not charged, two or more people are engaged in a common
\nenterprise, the acts and declarations of one in pursuance of the common purpose are
\nadmissible against another. This principle applies to the commission of a substantive
\noffence or series of offences by two or more people acting in concert, but is limited to
\nevidence which shows the involvement of each accused in the commission of the
\noffence or offences. It cannot be extended to cases where individual defendants are
\ncharged with a number of separate substantive offences and the terms of a common
\nenterprise are not proved or are ill-defined.”
\nThe second and third exceptions are of interest in regard to the appeal before the House. I am not
\nsaying that these exceptions are directly relevant. But the account of roles of the wife determined to
\nkill her husband, the hired gunman, and the middleman, which the jury must have accepted are
\nuncommonly close to those exceptions.
\n26 On this ground too I would reject the primary submission of counsel for Hayter.
\nXI. The alternative argument
\n27 In the alternative counsel for Hayter submitted that, even if a jury’s finding of guilt based upon one
\ndefendant’s out of court confession can, once *615 reached, add to an existing case against a
\nco-defendant, it cannot contribute to the case against that co-defendant at the close of the
\nprosecution case . The argument is that at that stage of proceedings a trial judge must examine the
\nevidence admissible in the case of each defendant and determine whether in each case that evidence
\nis such that a properly directed jury could convict. The fact that the evidence against one may or may
\nnot be added to later in the case cannot, it was submitted, affect the decision as to whether there is a
\ncase to answer at the close of the prosecution evidence.
\n28 This submission ignores the dynamics of a criminal trial by a judge and jury. It loses sight of the
\nnecessity for a judge sometimes to make conditional rulings on issues or the relevance or
\nadmissibility of evidence. Cross & Tapper On Evidence, 10th ed (2004), p 79, explain:
\n“One fact may be relevant to another only if it is taken together with some further matter,
\nand it may well be the case that this can be proved only by a witness who will be called
\nafter the one who testifies to the fact the relevancy of which is being considered. In such
\ncircumstances, the court allows the evidence to be given conditionally on its turning out
\nto be relevant. If it proves to be irrelevant, the judge will tell the jury to disregard it. An
\nexcellent example is provided by the rules governing the admissibility of statements
\nmade in the presence of a party. These have probative value only in the light of the
\nconduct of the person to whom they were made. If A confronts B and alleges that he
\nhas committed a crime against him, and B is later tried for that offence, evidence of
\nwhat A said will usually be relevant only if B’s conduct is something other than a stalwart
\ndenial of the charge; but there is no doubt that A’s statement may always be proved in
\nthe first instance, although the judge may subsequently be obliged to tell the jury to
\ndisregard it altogether. Such a statement of affairs is better regarded as a concession to
\nthe fact that the evidence in a case often emerges slowly, and from the mouths of many
\nwitnesses, rather than an exception to the rule prohibiting the reception of irrelevant, or
\ninsufficiently relevant, matter.”
\nBy analogy in the present case the judge was entitled to make the conditional rulings already
\ndescribed.
\n29 The alternative argument of counsel for Hayter must be rejected.
\nXII. Conclusion
\n30 It follows that I am in agreement with the decisions and reasoning of the Recorder of London and
\nthe Court of Appeal.
\nPage 9
\nXIII. Disposal
\n31 For the reasons I have given, and the reasons given by my noble and learned friend, Lord Brown
\nof Eaton-Under-Heywood, in his opinion, I would dismiss the appeal. The answers to the certified
\nquestions appear sufficiently from the majority opinions delivered today.
\nLORD RODGER OF EARLSFERRY
\n32 My Lords, after trial at the Central Criminal Court, the appellant, Paul Hayter, and his two
\nco-defendants, Angela Bristow and Raymond Ryan, were convicted of murdering Bristow’s husband,
\nMario Commatteo. *616 In brief, the Crown case was that Bristow procured the appellant to arrange
\nfor a hitman to kill her husband. The appellant in turn recruited Ryan whom Bristow paid through the
\nappellant. On 30 March 2000 Ryan shot Mr Commatteo at point-blank range with a 12-bore shotgun,
\nas he was leaving for work.
\n33 To convict Ryan, all that the Crown had to prove was that he was the person who shot the
\ndeceased in this way. To convict the appellant, the Crown had to prove that he procured Ryan to kill
\nthe deceased, that he did so with the intention of bringing about the deceased’s death, and that Ryan
\nkilled the deceased. The only evidence that identified Ryan as the killer came from his girlfriend,
\nVanessa Salter, who said that, at times when the appellant was not present, Ryan told her that he
\nhad shot the deceased. At the close of the Crown case, counsel for the appellant submitted that he
\nhad no case to answer, on the ground that Vanessa Salter’s evidence of Ryan’s confession was
\nadmissible only against Ryan and not against the appellant. Therefore, the Crown had not led
\nevidence capable, if accepted, of proving against the appellant that Ryan had killed the deceased.
\nThe late Recorder of London rejected that submission. He held:
\n“This analysis shows that the prosecution are not using and do not seek to use the
\nalleged confession of Raymond Ryan to confront any part of Mr Hayter’s defence. There
\nis thus no erosion of the fundamental evidential rule that the alleged confession of one
\ndefendant in the absence of the other defendant is not evidence against that other
\ndefendant. It seems to me that, since the Crown are put to proof that Raymond Ryan
\nkilled Commatteo, they are entitled to go ahead and prove it, if they can, by admissible
\nevidence against Raymond Ryan. If they succeed in that proof, they may then use the
\nfact of guilt produced by that evidence in seeking to prove by other evidence the guilt of
\nthe co-defendants.”
\nThe judge subsequently directed the jury in similar terms. The appellant appealed against his
\nconviction on the ground that the judge had erred in rejecting the submission of no case to answer.
\nDescribing the point as “short but difficult”, the Court of Appeal (Criminal Division) upheld the judge’s
\nruling and dismissed the appeal. In my view the point is short but easy and the appeal should be
\nallowed.
\n34 In the witness box Vanessa Salter spoke to being present at meetings between Ryan and the
\nappellant, to the appellant telephoning to speak to Ryan and to the appellant having had money for
\nRyan on one occasion. All this was primary evidence which was admissible against the appellant.
\nBut, as I have indicated, she also gave certain hearsay evidence. She said that Ryan told her that the
\nappellant had asked him if knew anyone who could kill the deceased. Ryan also told her that he was
\ngoing to ask Bristow for more money through the appellant and that he had told the appellant that he
\nhad not been paid enough. At the hearing of the appeal, Mr Dennis, who appeared for the Crown,
\nseemed to wish to segregate these elements from the rest of Ryan’s story because they related
\nspecifically to the appellant. As I understood counsel’s approach, he considered that these elements,
\nbut only these elements, could not be used as any part of the Crown case against the appellant.
\n35 The defendants were tried together. This was clearly the best course to adopt in the interests of
\njustice, because it saved time and resources and *617 also eliminated the risk of different juries
\nreturning inconsistent verdicts. Nevertheless, the defendants could have been tried separately and if,
\nfor example, one of them had been taken ill, this might well have been the appropriate course to
\nfollow. Whether the defendants are tried together or separately, however, the general law of evidence
\nis the same and what the Crown have to prove against each of the defendants also remains the
\nsame. There are, in effect, three separate trials and the jury must consider the case against each of
\nthe defendants separately.
\nPage 10
\n36 Counsel for the Crown fastened on one hypothetical sequence of events. Suppose, he said, that
\nRyan had been tried first and, on the basis of his confession to Valerie Salter, the jury had convicted
\nhim of murdering the deceased. Then section 74(1) of the Police and Criminal Evidence Act 1984
\n(“PACE”) would have come into play. Section 74(1) provides:
\n“In any proceedings the fact that a person other than the accused had been convicted of
\nan offence by or before any court in the United Kingdom or by a Service court outside
\nthe United Kingdom shall be admissible in evidence for the purpose of proving, where to
\ndo so is relevant to any issue in those proceedings, that that person committed that
\noffence, whether or not any other evidence of his having committed that offence is
\ngiven.”
\nAt the subsequent trial of the appellant, the fact that Ryan had been convicted of murdering the
\ndeceased would have been admissible for the purpose of proving that Ryan shot him. Mr Kelsey-Fry
\nconceded that this was indeed the position and that nothing in section 78(2) would have entitled the
\njudge in the appellant’s trial to exclude that evidence on the ground that the conviction had been
\nbased on the evidence of Ryan’s confession, which would not have been admissible against the
\nappellant. Mr Dennis argued that, since the jury could have taken account of Ryan’s conviction if the
\nappellant had been tried after Ryan was convicted, it was only sensible for the jury in the joint trial of
\nthe defendants to be able to use their conclusion, that Ryan was guilty of murdering the deceased, in
\nconsidering the case against the appellant.
\n37 As Mr Kelsey-Fry pointed out, if the Crown had wanted to take advantage of section 74(1), they
\ncould have proceeded against Ryan first and then, if he had been convicted, they could have used
\nthe conviction against the appellant. Naturally, that advantage to the Crown would have been
\npurchased at the expense of the advantages of a joint trial. As a matter of fact, however, Ryan was
\nnot tried first and the three defendants were tried together. So the proper comparison is between the
\nposition of the appellant in the joint trial of the defendants and his position if he had been tried alone,
\nwithout either of the others having been tried and convicted.
\n38 In that situation, would the Crown have been able to lead Vanessa Salter’s evidence of what Ryan
\ntold her The answer is plainly No. This is not because her evidence would have been irrelevant: on
\nthe contrary, it would have been highly relevant to the proof of one of the essentials of the Crown
\ncase against the appellant, viz, that Ryan had killed the deceased. Her evidence would none the less
\nhave been inadmissible because it would have been pure hearsay, not falling within any of the
\nrecognised exceptions to the rule: she would have been speaking to what someone else, Ryan, told
\nher about killing the deceased. If the Crown had wanted to use Ryan to *618 prove that he killed the
\ndeceased, they would have had to lead Ryan himself as a witness. Cf HM Advocate v Kemp (1891) 3
\nWhite 17. In the absence of any undertaking by the Director of Public Prosecutions not to prosecute
\nhim for the killing (which would have been unthinkable), the judge would have had to tell Ryan that he
\ndid not require to answer any question that tended to incriminate him. Naturally, in those
\ncircumstances he would have been extremely unlikely to confess to the murder and so ensure his
\nown conviction in his subsequent trial for murder. But if, by any chance, Ryan had confessed in the
\nwitness box, his evidence would have been subject to challenge by the appellant and would have
\nbeen admissible against him. Similarly, and consistently, any confession which Ryan made when
\ngiving evidence as a co-defendant in the joint trial would have been subject to challenge by the
\nappellant and admissible against him.
\n39 Therefore, the only reason why the Crown could lead Vanessa Salter to speak to Ryan’s
\nconfession at the joint trial was because Ryan was one of the defendants and so, as part of their case
\nagainst him , the Crown could lead her evidence of his confession, as an admission against interest,
\nto prove the facts stated by him. But nothing in that confession formed any part of the evidence in the
\ncase against the appellant. If this were not the position, evidence which would have been
\ninadmissible against the appellant if he had been tried alone would become admissible against him,
\nsimply because he was being tried along with Ryan. Joint trials conducted on that basis would be
\nprejudicial to the interests of the defendants and so would be resisted, quite legitimately.
\n40 Since it would not have been possible for the Crown to lead Vanessa Salter’s evidence of Ryan’s
\nconfession if the appellant had been tried alone, in such a trial the jury could never have reached a
\nconclusion, on the basis of that evidence, that Ryan shot the deceased. The Crown concede that
\nthere is no other evidence showing that Ryan was the killer. It follows that, in any trial of the appellant
\nalone, the judge would have had to sustain a submission of no case to answer since, taking the
\nPage 11
\nprosecution evidence at its highest, the Crown could not have proved one of the essential elements in
\nthe case against the appellant. Again, that must also be the position if the appellant happens to be
\ntried along with Ryan as a co-defendant.
\n41 As I mentioned above, at times during the hearing Mr Dennis seemed to draw a distinction
\nbetween those parts of Ryan’s confession which referred to his own actions and those parts which
\nreferred to the involvement of the appellant. The supposition seemed to be that, somehow, what Ryan
\nsaid about his own acts did not incriminate the appellant, whereas what he said about the appellant
\ndid. So the former could be admitted, the latter not. The judge also seems to have entertained some
\nsuch view since, in going through Vanessa Salter’s evidence during his summing up, it was only when
\nhe came to the passage about what happened between Ryan and the appellant at Squeaky Cleans
\nthat he warned the jury that this was evidence “in Ryan’s case and not evidence in the case of the
\nother two”.
\n42 This approach rests on a fundamental error. In a case like the present where, in order to secure
\nthe conviction of the appellant, the Crown had to prove that Ryan killed the deceased, there is no
\nrelevant difference whatever between the two aspects of what Ryan said. If admissible, everything
\nwhich he said about killing the deceased would have incriminated the appellant, in the sense of
\nproving a vital part of the Crown’s case against *619 him, viz, that Ryan killed the deceased. For that
\nreason, all of Vanessa Salter’s evidence of his confessions, made when the appellant was not present
\nto challenge them, if he saw fit, was not admissible against the appellant. At the joint trial of the
\ndefendants, however, the judge had to allow the Crown to lead Vanessa Salter’s evidence of Ryan’s
\nconfession to killing the deceased, because it formed a vital part of the admissible evidence in their
\ncase against Ryan. But, when the judge came to consider the submission of no case to answer, he
\nshould have excluded all of that evidence from the body of evidence available against the appellant. If
\nhe had done so, he would have had to sustain the submission and acquit the appellant.
\n43 The error in the opposite approach is patent and, as Mr Kelsey-Fry perceived, it hardly needs to be
\ndemonstrated by reference to authority. It so happens, however, that the point is covered by the
\ndecision of the Court of Criminal Appeal (Watkins LJ, Kilner Brown and Russell JJ) in R v Spinks
\n[1982] 1 All ER 587. Spinks was charged with a contravention of section 4(1) of the Criminal Law Act
\n1967 which makes it an offence for anyone, knowing or believing that someone has committed an
\narrestable offence, to do any act with intent to impede his apprehension or prosecution. The
\nallegation against Spinks was that he had so acted in relation to a Mr Fairey. The court held that, in
\norder to prove their case against Spinks, the Crown had to prove that Fairey had committed an
\narrestable offence. For this purpose, the Crown relied on evidence from police officers of a statement
\nmade by Fairey, in the absence of the defendant, in which he said that he had stabbed someone. A
\nsubmission of no case to answer was rejected and Spinks was convicted. The court allowed his
\nappeal. In the words of Russell J, at p 266:
\n“In the judgment of this court the offence with which the appellant was charged and the
\nmeans of establishing it do not provide any exception to the universal rule which
\nexcludes out of court admissions being used to provide evidence against a co-accused,
\nwhether indicted jointly or separately” (emphasis added).
\nRussell J went on to say:
\n“In his summing up the recorder left the jury with the clear impression that they could, if
\nthey wished, rely upon Fairey’s admissions to prove the wounding, not only against him
\nbut against the appellant. In doing so there was a plain misdirection …”
\nIt is right to notice that, although in reaching his decision Russell J said that the fallacy of the Crown’s
\nposition could be demonstrated in a number of ways, the only point he actually made was that, if
\nFairey had been tried separately and convicted, the Crown could not have relied on his conviction to
\nprove the first ingredient in the charge against Spinks. That was a correct statement of the law at the
\ntime, but the position was changed by section 74(1) of PACE. It follows that the decision can no
\nlonger be supported on that particular ground; but it is more than amply supported by the more
\nfundamental considerations to which I have already referred. Statute has not impinged on this aspect
\nof the law relating to hearsay evidence at trials and the “universal rule”, to which Russell J referred,
\nremains as much part of the law today as it did in 1981.
\n*620
\nPage 12
\n44 If-which I doubt-any further authority is needed, it is readily to be found north of the border. Sir
\nGerald Gordon QC, the distinguished editor of Renton & Brown’s Criminal Procedure according to the
\nLaw of Scotland 6th ed, looseleaf, summarises the Scots law, at para 24-132:
\n“A statement made by one co-accused outwith the presence of another is not evidence
\nagainst that other, whether or not it directly incriminates him” (emphasis added).
\nIn support of this proposition, Sir Gerald relies inter alia on McIntosh v HM Advocate 1986 SC 169.
\nThe appellant was convicted of having supplied cannabis to a named individual at a house in Paisley.
\nThe Crown case, which the jury accepted, was that the appellant had acted in concert with his
\nco-accused Deborah Campbell who had made the actual supply. There was sufficient evidence
\nagainst Deborah Campbell to prove that she had made the supply in question. It came from two
\nsources: a statement that she had made to the police, admitting the supply, and the eye-witness
\ntestimony of her sister. The sister’s evidence was available against the appellant, but the Appeal
\nCourt quashed the appellant’s conviction on the ground that the co-accused’s statement was not
\nevidence against the appellant and therefore the sister’s evidence was not corroborated, as it requires
\nto be in Scots law. The Lord Justice Clerk (Ross) said, at p 174:
\n“It is plain that without the evidence of Deborah Campbell’s voluntary statement, there
\nwas no corroborated evidence of supply to Maureen Campbell. In a question with
\nDeborah Campbell the jury were entitled to treat her voluntary statement as
\ncorroboration. However, the jury were not entitled to rely on the evidence of the
\nvoluntary statement of Deborah Campbell when considering the case against the other
\nco-accused including the appellant. What Deborah Campbell said in her voluntary
\nstatement to the police was not evidence against the appellant.”
\nFor present purposes, what matters is that the co-accused’s statement made no mention of the
\nappellant, but was none the less not admissible against him to prove the supply with which he was
\ncharged.
\n45 Similarly, in Montes v HM Advocate 1990 SCCR 645, the appellant was convicted of being
\nknowingly concerned in the fraudulent evasion of a prohibition on the importation of cocaine by
\nimporting a quantity of cocaine on a ship which docked at Greenock. The trial judge directed the jury
\nthat, in considering the case against the appellant, they were entitled to have regard to a statement by
\none of his co-accused, Jensen, to Customs and Excise officers, admitting that cocaine found in his
\npossession had been put on the ship in Colombia. The appeal court held that this had been a
\nmisdirection. Lord Justice Clerk Ross observed, at p 667:
\n“In my opinion this clearly constituted a misdirection. What the appellant Jensen said to
\nthe [Customs and Excise] officers was plainly evidence against him, but it was not
\nevidence against the other appellants. In his report the trial judge deals with this ground
\nof appeal. It is not entirely clear whether he is maintaining that because of the earlier
\ndirection which he had given to the jury about statements by one co-accused, they
\nought to have realised that the answers which the appellant Jensen gave to the
\nCustoms and Excise officers were not evidence against *621 the other accused, or
\nwhether the trial judge’s view was that these answers were evidence against the other
\nappellants. In his report he states: ‘It is my understanding that a statement made by one
\naccused outwith the presence of another is only inadmissible against the latter if it
\nincriminates him.’ The passage would suggest to me that the trial judge’s view was that
\nthe answers made by the appellant Jensen were in this case admissible against his
\nco-accused. The trial judge recognised that what Jensen said was relevant to the
\nquestion of importation of cocaine, but he opined that importation by itself was not a
\ncriminal act for the purposes of charge (1). That may well be so but importation was a
\nfact which required to be proved by the Crown if guilt under charge (1) was to be
\nestablished. What the Customs and Excise Officers testified that the appellant Jensen
\nhad said to them was hearsay evidence, and so was not admissible against the
\nco-accused as evidence of the facts alleged in the statement. In directing the jury that
\nthe evidence of the appellant Jensen’s answers was evidence upon which the jury could
\nrely in the case of the other appellants, the trial judge, in my opinion, misdirected the
\njury.”
\nPage 13
\nThe approach of the trial judge, which the appeal court rejected, resembled the approach of the
\nRecorder of London in this case. As a matter of principle, it should be rejected in English law too.
\n46 My Lords, in my view, these considerations are sufficient to show that the decision of the judge to
\nreject the appellant’s submission of no case to answer was wrong in law and that this appeal should
\nbe allowed. Out of deference to the judge and the Court of Appeal (Criminal Division), and since the
\nmajority of your Lordships take a different view, it may, however, be worth exploring some of the
\nimplications of that view.
\n47 In their written case counsel for the Crown put their argument in this form:
\n“in a joint trial a judge is entitled to find a case to answer against a defendant B if, on the
\nadmissible evidence against a co-defendant A, a jury properly directed could find A
\nguilty and, having done so, use the fact of that guilt in considering whether the case has
\nbeen proved against B.”
\nThe proposition is stated in terms of the jury first finding A guilty on the admissible evidence against
\nhim and then using “the fact of that guilt” in considering whether the case has been proved against B.
\nThat can only mean that “the fact of [A’s] guilt” is part of the evidence which the jury are entitled to
\ntake into account when deciding whether the Crown have proved their case against B. In the present
\ncase, for example, if the jury found, on the basis of Vanessa Salter’s evidence of Ryan’s
\nconfession-which was not admissible against the appellant-that Ryan killed the deceased, or, in other
\nwords, that Ryan was guilty of killing the deceased, then the “fact of Ryan’s guilt” was part of the
\nevidence which the jury could take into account when deciding whether the prosecution had proved
\ntheir case against the appellant. In my respectful view, the Crown are in substance asserting that the
\njury have a power to turn inadmissible into admissible evidence, and to convict a defendant by using
\nevidence that is inadmissible against him.
\n48 When the jury considered the case against Ryan, they were entitled to have regard to all aspects
\nof his confession, including what he said about his contacts with the appellant. Having considered that
\nevidence, in all *622 probability they concluded, not simply that Ryan shot the deceased, but that he
\ndid so after the appellant paid him sums of money which Bristow had passed to the appellant for that
\npurpose. After all, on the evidence there was no other reason for Ryan to kill the deceased. If, then,
\nthe jury were entitled to turn their conclusion from Ryan’s confession into a fact that they could use
\nagainst the appellant, there seems no reason in principle why they should not have used the whole of
\nthat conclusion, rather than just the “fact” that Ryan killed the deceased. If, therefore, in reaching their
\nverdict, they concluded that the appellant passed money to Ryan to pay for the killing, why should
\nthat “fact” also not have been available for their consideration of the case against the appellant From
\nthe jury’s point of view, the one is just as much a fact as the other. The Crown say, however, that the
\njury cannot do this. On their approach, the jury’s supposed powers are incoherently selective.
\n49 Suppose that A and B are charged with murdering someone by stabbing him. There is evidence
\nthat they were together, not far from the locus, not long before the incident. A gives a statement to the
\npolice in which he says that, just before the fight began, B gave him a knife which he used to stab the
\ndeceased. At trial, A goes back on his statement and both A and B say that they had nothing to do
\nwith the stabbing, but there is evidence that the fingerprints of both A and B were on a knife found at
\nthe scene. In considering whether the account given by A in his statement was true, the jury would be
\nentitled to have regard to the fact that the two sets of fingerprints were on the knife, as being
\nconsistent with his story that B handed the knife to him and he used it to stab the deceased. Indeed,
\nthe corroboration provided by the fingerprint evidence might well be the reason why they accepted
\nthat A’s confession was true and so decided to find him guilty. If the Crown approach is correct,
\nhowever, the jury will be told that, if they find the Crown case against A proved, in going on to
\nconsider the case against B, they will be entitled to have regard to the fact that his fingerprints, along
\nwith those of A, were on a knife found at the scene and to the “fact” that A is guilty of stabbing the
\ndeceased. But, at the same time, the judge will have to direct them that, if in reaching their verdict
\nagainst A, they find that B handed the knife to A shortly before the fight began, they must disregard
\nthat fact when considering the case against B. Any reasonable jury would find such a direction not
\njust perplexing but impossible to apply.
\n50 Counsel for the Crown confined their proposed rule to the situation where the jury find A guilty. But
\nguilt makes no sense as a touchstone for such a rule. Suppose, for instance, that A and B are
\nco-defendants, A being charged with possessing heroin with intent to supply it to another, and B with
\nbeing concerned in supplying the heroin. The theory of the Crown case is that, when he was arrested,
\nPage 14
\nA was a courier taking the heroin from B to a street dealer. There is circumstantial evidence of
\ncontacts between A and B, but the only evidence that B gave the parcel containing the heroin to A is
\nin a statement by A to the police. In that statement, A also says that he thought that the parcel
\ncontained fake Viagra tablets. In addition the prosecution evidence shows that, when the police
\nopened the parcel in front of him, A appeared to be astonished that it contained heroin powder. The
\nCrown lead the evidence of his mixed statement. A does not give evidence. The jury, having
\nconsidered A’s statement, decide that B did indeed give the parcel of heroin to A to carry to the street
\ndealer and that A was carrying it to *623 the dealer, but acquit A on the ground that he neither knew
\nnor suspected, nor had any reason to suspect, that the parcel contained a controlled drug. Since A is
\nnot found guilty, there is no “fact” of guilt which the jury can use against B. But, in any rational world
\nwhere the kind of rule for which the Crown contend operated, the jury would surely be able to use the
\n“fact” that B gave the parcel of heroin to A in considering whether B was concerned in supplying
\nheroin. A’s knowledge or suspicions about the contents of the parcel, and hence his guilt or
\ninnocence, are completely irrelevant to this issue.
\n51 This example simply goes to show that, in reality, on the Crown’s approach, what the jury are
\nbeing asked to do is to use their conclusions on the evidence against A in the case against B. That is
\ntantamount to using the evidence itself, which is admissible against A, as evidence against B, against
\nwhom it is inadmissible. If, instead of first considering the evidence of A’s confession in relation to A
\nand reaching a conclusion on it as to his guilt, they first considered that evidence in relation to B, they
\nwould come to precisely the same conclusions in respect of both A and B. The “modest ‘erosion’ ” of
\nthe hearsay rule simply obliterates the rule as it applies to statements of co-defendants in a joint trial.
\n52 Of course, the general hearsay rule and, more particularly, the rule that the extrajudicial admission
\nor confession of one defendant is admissible only against him, are productive of anomalies.
\nGenerations of judges and practitioners have been well aware of this. One area where the point used
\nto be sharply focused was divorce on the ground of adultery. In Rutherford v Richardson [1923] AC 1,
\n5, for instance, Viscount Birkenhead stressed that the decision of legal issues must depend on rigid
\nrules of evidence necessarily general in their scope. It was very likely, therefore, in individual
\napplications, to present an appearance of artificiality and even of inconsistency. He added:
\n“The issues pronounced upon by courts in criminal, and indeed, in civil matters, are
\nattended with such decisive consequences that the adoption in matters of evidence of a
\nstandard of admissibility which is so cautious as to be meticulous may not only be
\ndefended but is, in fact, essential.”
\nHe illustrated his point in this way, at p 6:
\n“Applying these considerations to the kind of difficulty which has often presented itself in
\nthe Divorce Court, we find that a case which has sometimes been ignorantly derided is,
\nin fact, both logical and defensible; for instance: A a husband brings against his wife B a
\npetition for divorce, on the ground of her adultery with a named co-respondent C. There
\nis some independent evidence against both B and C, but not sufficient to justify a
\npositive adverse conclusion. B, however, makes a full confession. Here the court may
\nvery reasonably pronounce a decree against B, while concluding that the matter is not
\nestablished as against C. Indeed, to hold otherwise would be to lay it down that the
\nadmission or confession of B-which may be quite untrue, and which may be induced by
\nhidden and private motives-is to be treated as good evidence against C. And so it
\nhappens that the court may quite reasonably conclude that it is proved that B has
\ncommitted adultery with C, but not that C has committed adultery with B.”
\n*624 Many similar statements of the law on adultery are to be found in both the English and Scottish
\nreports, as well as in textbooks on the law of evidence. In the Court of Session, indeed, at one time
\ntyro advocates always had to consider the point when drafting summonses in actions of divorce on
\nthe ground of the wife’s adultery. If there was only sufficient evidence to prove the adultery against the
\nwife, then the wife would be the sole defender, but if there was also sufficient evidence against the
\nparamour to prove adultery, he would be made a co-defender, with a view to proving his adultery and
\nrecovering the expenses of the action from him. Nearly always, the course to be adopted depended
\non whether the paramour was present at the time when the wife admitted her adultery to the private
\ndetectives acting for her husband.
\nPage 15
\n53 On the other hand, if the general approach favoured by the Crown were correct, it is hard to
\nimagine a clearer case than adultery for applying their remedy, since the adulterers were necessarily
\nconnected with one another. When the judge considered the wife’s admission and the other evidence,
\nas Viscount Birkenhead notes, he might conclude that she committed adultery with the paramour.
\nHaving made that finding, why should he not have applied it in considering the case against the
\nparamour and so concluded that the paramour committed adultery with the wife Apparently, the
\nCrown’s answer would be that the only “fact” that the judge could consider in relation to the paramour
\nwas that the wife had committed adultery-not that she had committed adultery with the paramour. So
\nthe judge would have to truncate his finding when considering the case of the paramour. Needless to
\nsay, there is not the slightest hint of such a bizarre approach in the case law. On the contrary, the
\ncases show, quite simply, that the evidence of the wife’s confession was regarded as inadmissible
\nagainst the paramour and so it formed no part of the evidence in the case against him. So the court
\nwould find that the wife committed adultery with the paramour but not that the paramour committed
\nadultery with the wife.
\n54 Wigmore describes this result as “perfectly and absurdly artificial” and says that it “negates the
\nclaim of courts of justice to be efficient fact-finders”: Evidence in Trials at Common Law (Chadbourn
\nrev, 1972), vol 4, para 1076, n 13. There is force in that criticism, especially as regards the field of
\ncivil law. Not surprisingly, therefore, the Civil Evidence Act 1995 replaced the common law rules with
\na new system which includes carefully worked-out safeguards. In considering whether it is
\nappropriate for the House to make significant changes in the rules on extrajudicial confessions of
\nco-defendants in criminal trials, it is important to bear in mind the words of Lord Reid in Myers v
\nDirector of Public Prosecutions [1965] AC 1001. The case concerned a different aspect of the law of
\nhearsay in criminal proceedings and was decided in 1964, before the Law Commission was
\nestablished and before the Practice Statement allowing the House to depart from its previous
\ndecisions. Nevertheless, Lord Reid’s statement of principle, at pp 1021-1022, as to the inadvisability
\nof the House modifying particular aspects of the law on hearsay evidence, remains as powerful today
\nas when he made it:
\n“I have never taken a narrow view of the functions of this House as an appellate
\ntribunal. The common law must be developed to meet changing economic conditions
\nand habits of thought, and I would not be deterred *625 by expressions of opinion in this
\nHouse in old cases. But there are limits to what we can or should do. If we are to extend
\nthe law it must be by the development and application of fundamental principles. We
\ncannot introduce arbitrary conditions or limitations: that must be left to legislation. And if
\nwe do in effect change the law, we ought in my opinion only to do that in cases where
\nour decision will produce some finality or certainty. If we disregard technicalities in this
\ncase and seek to apply principle and common sense, there are a number of other parts
\nof the existing law of hearsay susceptible of similar treatment, and we shall probably
\nhave a series of appeals in cases where the existing technical limitations produce an
\nunjust result. If we are to give a wide interpretation to our judicial functions questions of
\npolicy cannot be wholly excluded, and it seems to me to be against public policy to
\nproduce uncertainty. The only satisfactory solution is by legislation following on a wide
\nsurvey of the whole field, and I think that such a survey is overdue. A policy of make do
\nand mend is no longer adequate. The most powerful argument of those who support the
\nstrict doctrine of precedent is that if it is relaxed judges will be tempted to encroach on
\nthe proper field of the legislature, and this case to my mind offers a strong temptation to
\nthat which ought to be resisted.”
\nIn R v Blastland [1986] AC 41, 52h Lord Bridge of Harwich said that the majority decision of the
\nHouse in Myers v Director of Public Prosecutions “established the principle, never since challenged,
\nthat it is for the legislature, not the judiciary, to create new exceptions to the hearsay rule”.
\n55 Whether or not it has always been followed religiously, Lord Reid’s guidance is particularly
\napposite in this case where the Law Commission conducted a wide survey of the law and did not
\nsupport any change in relation to Crown evidence of extrajudicial admissions of co-defendants in
\ncriminal trials. In their report on Evidence in Criminal Proceedings: Hearsay and Related Topics (Law
\nCom No 245) (1997), para 8.96, they said
\n“A hearsay admission is still evidence only against the person who made it, and a jury
\nmust be warned accordingly. A number of our respondents thought it extremely
\nPage 16
\nimportant that this principle be retained, and we agree.”
\nPlainly, like Viscount Birkenhead, the Law Commission considered that, where the consequences of
\nconviction in a criminal trial are so serious, it is essential to adopt a standard of admissibility on this
\nmatter which is so cautious as to be meticulous.
\n56 Even more importantly, Parliament agreed with, and gave effect to, the Law Commission’s
\nconclusion. Section 118(5) of the Criminal Justice Act 2003 specifically preserves any common law
\n“rule relating to the admissibility of confessions or mixed statements in criminal proceedings”.
\n57 If adopted, the Crown’s submission will, in effect, destroy one vital aspect of the common law rule
\nwhich Parliament has so recently decided should be preserved. In my respectful view, it is not for the
\nHouse in its judicial capacity to contradict such a clear and recent expression of the will of the
\nlegislature, especially when there is no principled basis for doing so. In any event, the proposed
\nchange is likely to have undesirable effects in practice. Often, joint trials will be liable to produce
\ndifferent results from *626 separate trials, to the prejudice of defendants. Applications for separate
\ntrials can be expected to multiply accordingly. The law of evidence as it is applied by the courts, day
\nin day out, will be unsettled. Certainty will give way to uncertainty and the present, sometimes difficult,
\ndistinctions will be replaced by other distinctions which juries will neither understand nor be able to
\napply sensibly. In short, it seems likely that the House is storing up fresh difficulties for trial judges
\nand juries.
\n58 For these reasons, as well as for those to be given by my noble and learned friend, Lord Carswell,
\nI would allow the appeal and hold that the judge was wrong to reject the appellant’s submission of no
\ncase to answer.
\nLORD CARSWELL
\n59 My Lords, two long-accepted fundamental principles of the criminal law lie at the heart of this
\nappeal. The first is the rule against the admission of hearsay evidence and the second is the principle
\nthat evidence which is admissible only against one co-defendant cannot be taken into account when
\nassessing the guilt of another. The way in which the application of these principles can have an
\nimportant impact on the result of a trial may be seen in high relief in the present appeal. The question
\nbefore the House is whether they can or should be modified in the manner which was regarded as
\njustifiable in the courts below.
\n60 Since the facts and the course of the trial have been summarised in the opinions of my noble and
\nlearned friends, Lord Steyn and Lord Rodger of Earlsferry, I do not need to do more than deal with
\nthem in outline in so far as they are material to the question of law in issue. The case against
\nRaymond Ryan was, apart from his admissions to Vanessa Salter, exiguous and circumstantial.
\nTaken at its height, it was that he had followed the victim Mario Commatteo in his Ford Sierra car on
\nseveral occasions; he went four or five times to see the appellant Hayter; on one occasion he was
\nobserved in Hayter’s premises counting out a large sum of money; and Vanessa Salter saw a piece of
\npaper in his flat which bore the words “Whyteleafe” (Commatteo’s home address) and “Merstham”
\n(the location of his business premises). He also failed to refer in interview to some facts or
\ncircumstances which he might have been expected to mention. It was not suggested that a
\nreasonable jury could have convicted him of the murder of Commatteo if the evidence had amounted
\nto nothing more than that. The oral admissions which he made to Vanessa Salter were therefore
\ncrucial to the Crown case against Ryan as it stood at the close of the prosecution evidence.
\n61 The evidence against Hayter was equally exiguous at that stage. He was very closely and directly
\nimplicated in procuring the crime in the statements made by Ryan to Vanessa Salter, but this hearsay
\nevidence was admissible only against Ryan. It was correctly conceded on behalf of the Crown in the
\nstatement of facts and issues in the appeal to your Lordships that the circumstantial evidence against
\nhim did not provide a case to answer unless it could be proved that Ryan was the killer. If at the close
\nof the Crown case there was evidence of that fact admissible against Hayter, then the circumstantial
\nevidence tending to prove Hayter’s complicity, added to the fact that Ryan killed Commatteo, might
\nhave been regarded as sufficient to amount to a prima facie case of murder against Hayter.
\n*627
\n62 At the close of the Crown case counsel for the appellant submitted that there was no case to
\nanswer against him, that is to say, that on the evidence admissible against him at that stage, taken at
\nPage 17
\nits height and all accepted as true, a reasonable jury properly directed could not find him guilty of the
\nmurder of Commatteo, and the judge should direct an acquittal (I shall refer to this by the convenient
\nterm familiar to Irish lawyers as the “direction” stage). A similar submission was made on behalf of
\nAngela Bristow, but none was advanced on behalf of Raymond Ryan.
\n63 In a careful ruling the Recorder of London, the late Judge Hyam, rejected the submission made in
\nMrs Bristow’s case and went on to consider the appellant’s. He considered the authorities cited to him
\nand in particular R v Hickey (unreported), 30 July 1997, which he distinguished, stating:
\n“In stark contrast to that case, the prosecution in this case do not seek to use the
\nalleged confession by Ray Ryan to Vanessa Salter against either of the other two
\ndefendants. What they seek to do is to prove their case against Ray Ryan that he killed
\nCommatteo at 79 Whyteleafe Hill on 30 March 2000. If they establish that, and only if
\nthey make the jury sure that Ryan killed Mario Commatteo, do they assert that the jury
\ncan take their own finding into account in deciding whether Angela Bristow procured
\nPaul Hayter to recruit Ryan to kill Commatteo …
\nIn contrast to that case there is no issue as such between the Crown and Mr Hayter as
\nto whether Mr Ryan was the killer. Mr Hayter says, in effect, I do not know whether he
\nwas there or not. If you the Crown say he was, you prove it.
\nHe goes on to say that if you cannot prove it, you have no case against me. But if you
\ndo prove it you still have no case against me, because I knew nothing about any such
\ncrime. It is not in my league.
\nThis analysis shows that the prosecution are not using and do not seek to use the
\nalleged confession of Raymond Ryan to confront any part of Mr Hayter’s defence. There
\nis thus no erosion of the fundamental evidential rule that the alleged confession of one
\ndefendant in the absence of the other defendant is not evidence against that other
\ndefendant.
\nIt seems to me that since the Crown are put to proof that Raymond Ryan killed
\nCommatteo, they are entitled to go ahead and prove it, if they can, by admissible
\nevidence against Raymond Ryan.
\nIf they succeed in that proof, they may then use the fact of guilt produced by that
\nevidence in seeking to prove by other evidence the guilt of the co-defendants”.
\nThe judge continued:
\n“I am fully satisfied that if there were no more evidence in this case, a reasonable jury
\nproperly directed could convict all three of the defendants. They could first convict
\nRaymond Ryan, if they accepted the evidence of Vanessa Salter that Raymond Ryan
\nhad confessed that he had killed Commatteo.
\nIf they found him guilty on that evidence, they could then consider the circumstantial
\nevidence alleged against Mrs Bristow and if sure that she procured the murder convict
\nher.
\nFinally, they could consider the circumstantial evidence against Mr Hayter if and only if
\nthey had concluded that Raymond Ryan killed, *628 and Mrs Bristow procured, and if
\nthey accepted the circumstantial evidence adduced against Mr Hayter. They could, in
\nthose circumstances, convict them all, all the time being careful to observe the warning I
\nshall give and explain why I am giving it, that the alleged confession by Raymond Ryan
\nto Vanessa Salter is only evidence against Ray Ryan and not against the
\nco-defendants.”
\nThe judge refused the application for a direction and proceeded with the trial. At the close of the
\nevidence he directed the jury as he had indicated in his ruling. The jury convicted all three defendants
\nof murder.
\n64 Hayter appealed to the Court of Appeal, and at the hearing counsel contended that the judge had
\nbeen wrong to refuse his submission that there was no case to answer. Mantell LJ, giving the
\nPage 18
\njudgment of the court, stated that the court was impressed with the judge’s reasoning and considered
\nthat his findings accorded with first principles. He examined R v Hickey, R v Rhodes (1959) 44 Cr App
\nR 23 and R v Spinks [1982] 1 All ER 587, concluding that they did not prevent the court from agreeing
\nwith the conclusion reached by the judge.
\n65 Mantell LJ set out the terms of section 74(1) of the Police and Criminal Evidence Act 1984
\n(“PACE”), which provides:
\n“In any proceedings the fact that a person other than the accused has been convicted of
\nan offence by or before any court in the United Kingdom or by a Service court outside
\nthe United Kingdom shall be admissible in evidence for the purpose of proving, where to
\ndo so is relevant to any issue in those proceedings, that that person committed that
\noffence, whether or not any other evidence of his having committed that offence is
\ngiven.”
\nHe stated in para 18 of the judgment of the court:
\n“It seems to us that section 74 removes the foundation for the decisions in [R v Spinks
\nand R v Rhodes]. Now it is unquestionably the case that a prior conviction would be
\nadmissible to prove, were it relevant to do so, that Mills or Fairey had committed the
\noffences with which they had been charged. Similarly, in the present case the conviction
\nof Ryan would be admissible in any retrial of the appellant. Is it sensible, in those
\ncircumstances, to hold that a jury cannot have regard to a conclusion which it had
\nreached on evidence presented in a joint trial in order to prove the existence of a fact
\nthat is a pre-condition in law to establishing the guilt of the secondary party We think
\nnot.”
\nThe court accordingly dismissed the appellant’s appeal. It certified the questions set out by Lord
\nSteyn at para 5 of his opinion and refused leave to appeal. The House of Lords subsequently gave
\nleave to appeal.
\n66 Mr Kelsey-Fry for the appellant submitted that the judge was wrong to refuse his application for a
\nruling that there was no case for the appellant to answer. Starting from the premise that Ryan’s
\nconfession to Vanessa Salter was admissible only against Ryan, he contended that unless it had
\nbeen adopted or assented to by Hayter (which was not the case) it could not be taken into account in
\nany way against the latter at the direction stage. He submitted that it was an impermissible erosion of
\nthis principle to direct the jury that they could rely upon their finding of guilt against Ryan-which was
\n*629 based almost wholly on that confession-but not that part of the content of the confession which
\nimplicated Hayter.
\n67 Admissions made against their interests by defendants in criminal matters are generally known as
\nconfessions, which are defined by section 82(1) of PACE as including
\n“any statement wholly or partly adverse to the person who made it, whether made to a
\nperson in authority or not and whether made in words or otherwise.”
\nLike other admissions, they are provable under an exception to the rule against hearsay, which rule I
\nnow turn to examine.
\n68 The function of the law of evidence in an adversarial system of justice was usefully encapsulated
\nin para 1.2 of Discussion Paper No 1 (1990) of the Law Reform Advisory Committee for Northern
\nIreland, Hearsay Evidence in Civil Proceedings. It was there described as being
\n“to govern the conduct of proceedings by determining how relevant facts may be
\nproved-or, more often, how they may not be proved. When an exclusionary rule, such
\nas the rule against hearsay, applies, the law does not prohibit the proof of a particular
\nfact; but it does exclude the use of a particular kind of evidence to prove that fact.”
\nThe fact may, of course, be proved in some other way which does not offend against the rule.
\n69 The rule against hearsay has been effectively abolished in civil cases, the large majority of which
\nPage 19
\nare heard by judges without juries. The approach which underlies the reform brought in by the Civil
\nEvidence Act 1995 is that a judge is equipped to determine the weight to be attributed to hearsay
\nevidence and pay the appropriate amount of regard to it in assessing the totality of the evidence. In
\ncriminal cases, where jury trial is the norm, the rule has been preserved, notwithstanding some
\nproposals for its abolition.
\n70 The reasons for the development of the rule against hearsay incorporate two strands, unreliability
\nand unfairness. As it is stated in Cross & Tapper on Evidence , 8th ed (1995), p 565,
\n“Legal historians are divided between those who ascribe the development of the rule
\npredominantly to distrust of the capacity of the jury to evaluate it, and those who ascribe
\nit predominantly to the unfairness of depriving a party of the opportunity to
\ncross-examine the witness.”
\nSir Rupert Cross did not consider that distrust of the jury was a historically accurate ground for the
\ndevelopment, but it seems probable that it played some part in it. As Lord Bridge of Harwich put it in R
\nv Blastland [1986] AC 41, 54:
\n“The rationale of excluding [hearsay] as inadmissible, rooted as it is in the system of trial
\nby jury, is a recognition of the great difficulty, even more acute for a juror than for a
\ntrained judicial mind, of assessing what, if any, weight can properly be given to a
\nstatement by a person whom the jury have not seen or heard and which has not been
\nsubject to any test of reliability in cross-examination.”
\n*630 The weakness of hearsay evidence which is most constantly described is that its quality cannot
\nbe directly tested in court. As Lord Normand observed in Teper v The Queen [1952] AC 480, 486:
\n“The truthfulness and accuracy of the person whose words are spoken by another
\nwitness cannot be tested by cross-examination, and the light which his demeanour
\nwould throw on his testimony is lost.”
\n71 The second major principle to which I referred at the beginning of this opinion was that evidence
\nwhich is admissible only against one co-defendant cannot be taken into account when assessing the
\nguilt of another. The rule has no exception at common law; a confession is inadmissible hearsay
\nagainst all but the maker of it: Murphy on Evidence, 8th ed (2003), para 8.15.3.
\n72 Before I discuss the application of these principles to the present appeal I must refer again to
\nsection 74(1) of PACE. This permits proof of a conviction without the necessity of calling evidence
\nover again to prove the commission of the offence by the person convicted, the avowed object of the
\nprovision: see Hansard, HC Debates, 8 March 1984, cols 1625-1626. The section abolished the
\nmuch-criticised rule in Hollington v F Hewthorn & Co Ltd [1943] KB 587. It cannot, however, be
\ndirectly invoked, as both the judge and the Court of Appeal accepted, since at the direction stage
\nRyan had not been convicted of any offence. The enactment of section 74 has, however, been
\ninvoked as a justification for amending the common law rule in the manner adopted in the lower
\ncourts.
\n73 The submission advanced by the Crown and accepted in the lower courts was that the jury would
\nbe entitled to take into account against Hayter the fact, if they found it to be established, that Ryan
\nkilled Commatteo and to add that to the circumstantial evidence in order to constitute a case of
\nmurder against Hayter. In my opinion this approach is flawed and cannot withstand examination. The
\ncase against Ryan depended critically on acceptance of the truth of his confessions to Vanessa
\nSalter. To establish that he killed Commatteo it is essential to have regard to the content of that
\nstatement. Yet the jury was directed by the judge to disregard its content in considering the case
\nagainst Hayter, since it was hearsay, but to take into account the fact that they found Ryan guilty on it.
\nThis instruction requires them not only to engage in mental gymnastics of an advanced and
\nsophisticated kind which it is hard to expect the average jury to perform, but to indulge in what to my
\nmind is false sophistry. I am quite unable to understand how any tribunal of fact, judge or jury, can
\nlegitimately take into account against one defendant a finding of guilt against another which is based
\nalmost solely on a confession whose contents are inadmissible against the first. I agree with the view
\nexpressed by Lord Rodger of Earlsferry at para 47 of his opinion that this would be to turn
\nPage 20
\ninadmissible into admissible evidence. Such alchemy should not form part of the criminal law. Nor is it
\ndesirable that juries should be given directions which require them to draw such difficult distinctions
\nand which are bound to cause confusion in their minds and misunderstanding. Those concerned with
\nreform of the law of evidence regularly state that the requirements for a rational law are simplicity,
\ncertainty and fairness. The approach adopted by the courts below would certainly fail to meet either of
\nthe first two criteria.
\n*631
\n74 At the direction stage the evidence against each defendant must be considered as it then stands.
\nThe judge applies the test whether a reasonable jury properly directed could on that evidence find the
\ncharge proved beyond reasonable doubt against that defendant. It has to be borne in mind that only
\nthe evidence admissible against each defendant can be taken into account. At that stage the only
\nevidence admissible against Hayter was insufficient to prove his guilt. The only means of linking him
\nwith the murder of Commatteo was through the confession made by Ryan, which was inadmissible
\nagainst him. The way in which the lower courts approached this was by positing that the jury could on
\nthe evidence given in the prosecution case consider Ryan’s case first, then if they found him guilty
\nuse the fact of his conviction to provide the necessary link between Hayter and Ryan’s acts. But the
\nonly way in which they could find Ryan guilty was to rely on his confession. I am unable to agree with
\nthe view expressed by the judge and accepted by the Court of Appeal that the prosecution were not
\nusing Ryan’s confession to confront any part of Hayter’s defence. It seems to me inescapable that
\nthat is just what they were doing. Nor can I agree that the legislative policy behind the enactment of
\nsection 74 of PACE can give legitimacy to the course regarded as possible by the lower courts.
\nHowever desirable it may be that rules of law which some might regard as technicalities should not be
\nallowed to stand in the way of the achievement of a just result, that indirect reliance on the confession
\nas against Hayter is in my view an impermissible breach of principle. If it is thought that that principle
\nshould be modified in the public interest-as to which there might be widely differing views when all the
\nimplications are considered-it is for Parliament to do it. The reasons set out by Lord Rodger of
\nEarlsferry in paras 54 to 57 of his opinion are in my view compelling.
\n75 If it is suggested that one can pray in aid the concept of conditional relevance to make it possible
\nto take into account a co-defendant’s confession, I must respectfully disagree. That concept relates to
\nthe dynamics of a criminal trial, as Lord Steyn has said, but I do not consider that it can plug the gap
\nin the evidence against Hayter which existed at the direction stage. Evidence which is admitted as
\nbeing conditionally relevant will have its relevance confirmed when a later piece of evidence is
\nadduced in the course of the trial. The use of the concept for that purpose appears more clearly from
\nthe brief discussion in Phipson on Evidence, 15th ed (1999), para 6-10. But at the direction stage one
\nmust consider the evidence as it stands, on the assumption that no further evidence will be adduced.
\nThat being so, there is nothing to come which will make the disputed piece of evidence relevant and
\nadmissible if it is not already so. The only factor which would make it admissible is the possibility that
\nthe jury would decide to convict Ryan on the evidence of his confession and then use that finding to
\nfill the gap in the evidence against Hayter, a course which, for the reasons I have given, I consider to
\nbe incorrect.
\n76 Having decided the matter in issue in this appeal on principle for the reasons which I have set out,
\nI do not find it necessary to enter into any extended discussion of the previous cases cited by the
\nCourt of Appeal. I would observe, however, that the issue in R v Spinks [1982] 1 All ER 587 was the
\nsame as that which we have had to consider in the present case. In my opinion the conclusion should
\nbe the same if Spinks’s case were tried today, notwithstanding the enactment of section 74 of PACE,
\nand the *632 decision remains correct. In R v Rhodes 44 Cr App R 23 the case went to the jury and
\nthe issue was not the sufficiency of the evidence at direction stage. The Court of Criminal Appeal held
\nthat the judge’s statement to the jury that they could take into account their finding of guilt against one
\ndefendant M, which had been based largely on a confession by him, when considering the case
\nagainst the other defendant R, nullified his previous correct direction that M’s confession was not
\nevidence against R. It is suggested that this case would be decided differently since the enactment of
\nsection 74. I should prefer to reserve my opinion on that proposition for decision if it becomes relevant
\nin a future case. The issues in R v Hickey 30 July 1997 are so far from those in the present appeal
\nthat I do not derive material Helpance from the decision.
\n77 For the reasons which I have set out and for those given by Lord Rodger of Earlsferry I would
\nallow the appeal and quash the appellant’s conviction. I am conscious that adherence to the accepted
\nprinciples of the common law governing the admission and exclusion of evidence in criminal trials
\nmay well result in the acquittal of a defendant against whom the evidence, if admitted, would make a
\nPage 21
\nstrong case for his guilt. The Crown did, however, have the option of proceeding against the appellant
\nin a separate trial, which might have enabled them to present admissible evidence which was
\nsufficient to ground a conviction. They did not do so, and I am of the clear view that to modify the
\ncommon law rule to fill the gap left in the evidence against the appellant would be an undesirable
\nerosion of accepted principles.
\nLORD BROWN OF EATON-UNDER-HEYWOOD
\n78 My Lords, I am grateful to my noble and learned friends, Lord Steyn and Lord Rodger of Earlsferry,
\nfor their full exposition of the facts of this appeal and shall accordingly confine myself to a brief
\nconsideration of the point of law arising for decision, adopting for this purpose the shorthand used in
\nthe certified questions. These are as follows:
\n“(1) In a joint trial of two or more defendants for a joint offence is a jury entitled to
\nconsider first the case in respect of defendant A which is solely based on his own out of
\ncourt admissions and then to use their findings of A’s guilt and the role A played as a
\nfact to be used evidentially in respect of co-defendant B and, if so,
\n“(2)Where proof of A’s guilt is necessary for there to be a case to answer against B is
\nthere a case to answer against B at the close of the prosecution case where the only
\nevidence of A’s guilt is his own out of court admissions”
\n79 Realistically there is but a single issue for determination since the answer to both questions must
\ninevitably be the same. If the answer to question one is “No”, then plainly B would have no case to
\nanswer; so much, indeed, is implicit in the words “if so” introducing question two. If, however, the
\nanswer to question one is in the affirmative then logically there would be a case to answer at the
\nclose of the prosecution’s case since ex hypothesi on the evidence already adduced the jury could
\nproperly decide first that A was guilty and then that A’s guilt, coupled with such other evidence as
\nwent to incriminate B, proved B guilty too.
\n*633
\n80 Whilst, therefore, in my judgment everything turns on question one and no separate consideration
\nis required of question two, the very formulation of question two does serve to demonstrate, as I
\nmyself believe to be the case, that the Crown’s argument (and, indeed, the rulings in this case both by
\nthe Recorder of London and by the Court of Appeal) necessarily involves some modification of what
\nRussell J in R v Spinks [1982] 1 All ER 587, 589 called
\n“the universal rule which excludes out of court admissions being used to provide
\nevidence against a co-accused, whether indicted jointly or separately”.
\nThe Crown’s argument requires that A’s out of court admissions are used at the halfway stage to
\nprovide evidence against B and that, to my mind, continues to be the position even once the jury have
\nrelied on those admissions to convict A. Evidence inadmissible against B is not suddenly transformed
\nby that finding (of A’s guilt) into admissible evidence: if the Crown’s argument is soundly based, the
\nadmissions must (albeit only in a closely circumscribed way) have been admissible against B all
\nalong. This too, I may note, appears to have been Professor Birch’s view when commenting on the
\nCourt of Appeal’s decision in the Criminal Law Review [2003] Crim LR 887-888:
\n“The experienced trial judge’s bold ruling made clear that, in his opinion, the prosecution
\nwere not seeking to use the evidence of A’s confession ‘to confront any part of B’s
\ndefence’. Its use did not therefore ‘erode the fundamental principle that the alleged
\nconfession of one defendant in the absence of the other defendant is not evidence
\nagainst the other defendant’. To the extent, however, that the proof of A’s guilt was a
\nfundamental building-block in the prosecution case against B, there was some erosion
\nof the principle, and an impressive array of common law authorities stand against it.” (I
\nhave substituted A and B for the parties’ names.)
\n81 The critical question for your Lordships is whether this modest “erosion” of the basic principle
\nought properly to be countenanced. (The “impressive array of common law authorities” of which
\nPage 22
\nProfessor Birch speaks is presumably a reference to the three decisions discussed by the Court of
\nAppeal below: R v Rhodes (1959) 44 Cr App R 23, R v Spinks [1982] 1 All ER 587 and R v Hickey 30
\nJuly 1997.) In answering this question one’s starting point must surely be the supposed rationale of
\nthe basic rule itself. Why is it “the universal rule” that out of court admissions made by A in the
\nabsence of B are admissible only against A The answer to this question is, of course, the hearsay
\nrule itself: the admission of A’s confession even against A himself is itself an exception to that rule.
\nWhat, therefore, one asks, is the explanation for this exception
\n82 To my mind there can be only one rational answer to this question: admissions made by A are
\nadmissible against him for the obvious reason that he would be unlikely to have made them unless
\nthey were true. Subject always to the safeguards provided for by section 76(2) of the Police and
\nCriminal Evidence Act 1984 (“PACE”)-which excludes confessions obtained oppressively or otherwise
\nso as render them unreliable-such admissions are seen to be cogently, indeed powerfully, probative
\nof the case *634 against A. Why, then, should not such admissions be admissible too against A’s
\nco-accused B The conventional answer to this question is that they were not made in B’s presence
\nso that B had no opportunity to deny them all the time they were made. Routinely juries are directed:
\n“Members of the jury, bear in mind that anything said by A to [the police or, as here,
\nVanessa Salter to whom A is said to have confessed] is evidence only against A and not
\nagainst B. The reason for this is that it would obviously be unfair to take account of what
\nwas said by A against B when B was not there at the time and so not in a position to
\ndeny it.”
\n83 I confess, however, to having always thought this direction a hollow one. Why would it be “unfair”,
\nlet alone “obviously unfair”, to regard A’s confession of his guilt as evidence (so far as it goes) also
\nagainst B just because B was not there at the time Is it really to be supposed that B, had he been
\nthere, would have denied it And even if he had been there and denied it, how would that materially
\nhave Helped his case Why should not the jury be directed instead simply to assume in B’s favour
\nthat, had he been present when A made his admission, he would have resolutely denied it if and in so
\nfar as it might otherwise have been thought to constitute evidence against him
\n84 Let me make it absolutely plain that in everything I have said thus far I have been assuming that
\nA’s confession is directed solely towards incriminating himself and that, whilst of course it tends to
\nestablish A’s guilt, it says nothing directly implicating B. In other words it is incriminatory against B
\nonly in so far as the fact of A’s guilt of itself helps to establish B’s guilt (perhaps because, as in R v
\nRhodes, A and B had been in each other’s company at the time of the offence or because, as in R v
\nSpinks, it was necessary to prove that A had committed an arrestable offence, or for whatever other
\nreason). I have assumed, in Professor Birch’s words, that “proof of A’s guilt [is] a fundamental building
\nblock in the prosecution case against B”, and that A’s confession goes no further than this.
\n85 I understand that others of your Lordships are troubled by this assumption; it is, indeed, suggested
\nthat there is no relevant difference whatever between those parts of A’s admissions which refer to his
\nown actings and those parts which refer to the involvement in the offence of B himself. This I cannot
\naccept: rather there seems to me a critical distinction between the two. I readily acknowledge that
\nthose parts of A’s confession which directly implicate B ought strictly and for all purposes to be
\nexcluded from the jury’s consideration of the case against B. But the reason for this is because those
\nparts of A’s confession which directly implicate B are not admissions against A’s interest at all and so
\nare materially less likely to be true. The objection to their admissibility against B is less, therefore, that
\nthey are hearsay than that there is a real risk that A will have had his own motives, and not merely a
\nwish to clear his conscience, for casting blame on B.
\n86 With these thoughts in mind let me return to the certified questions. It is important in addressing
\nthem to recognise that the effect of the judgment below is distinctly limited. It is not proposed to admit
\nA’s confession as evidence against B for all purposes, but only subject to two conditions: first, that the
\njury are sufficiently sure of its truthfulness to decide that on that basis alone they can safely convict A;
\nand secondly, that the jury are *635 expressly directed that when deciding the case against B they
\nmust disregard entirely everything said out of court by A which might otherwise be thought to
\nincriminate B. I acknowledge, of course, that the jury, in deciding at the first stage to convict A on the
\nbasis of his own out of court admissions, will already have had regard to that evidence for that
\npurpose when they then come to use A’s conviction as itself a building-block in the case against B.
\nBut by that second stage of the jury’s deliberations A’s out of court admissions will have been in effect
\nPage 23
\nsubsumed within their finding of guilt against A.
\n87 What, then, apart from an unswerving adherence to the hearsay rule in its purest and most
\nabsolute form, are the objections to using a co-defendant’s admissions in this carefully and narrowly
\ncircumscribed way It is suggested that the jury will be unable to disentangle those parts of A’s out of
\ncourt admissions which go only to implicate A himself in the events from those which go also to
\nincriminate B. But is this really any more difficult for the jury to follow than the basic direction that A’s
\nout of court admissions are evidence against A but not against B And consider this further point. It is
\nimplicit in the appellant’s argument that, if the case against A consists not merely in his own out of
\ncourt admissions but also of other evidence (perhaps fingerprint or identification evidence), then the
\njury would have to be directed that they could use their finding of guilt against A as a building- block in
\nthe case against B, but before doing so they would have to be sure that they would still have found A
\nguilty even without the evidence of his out of court admissions. Now that, one might think, really
\nwould puzzle the jury.
\n88 That indeed to my mind illustrates the intrinsically unsatisfactory nature of the appellant’s case. If,
\nas I understand to be common ground, there is no good reason why A’s guilt should not ordinarily be
\nregarded by the jury as a fact capable of being used evidentially against B (its relevance, of course,
\nbeing dependent always upon the particular issues arising in B’s case), why should it make the least
\ndifference whether A’s guilt is established by his own out of court admissions or by eyewitness,
\nfingerprint, DNA, circumstantial or any other sort of evidence, or, indeed, by any combination of these
\ndifferent sorts of evidence
\n89 As it seems to me the appellant offers no satisfactory answer to that question. His only answer,
\nindeed, is to invoke the hearsay rule: all other forms of evidence, points out Mr Kelsey-Fry, are direct
\nevidence adduced at the trial and admissible against all defendants; the evidence of A’s out of court
\nadmissions is by contrast adducible only as an exception to the hearsay rule and only against A. Mr
\nKelsey-Fry unsurprisingly disavows any claim to commonsense or justice in support of his argument.
\nIt depends, he acknowledges, entirely upon a strict adherence to a long established rule which, he
\nsubmits, only Parliament can now modify.
\n90 Although, in common with the Court of Appeal, I have not found this an easy point, I conclude that
\nMr Kelsey-Fry’s submission should be rejected. It is now 20 years since section 74 of PACE was
\nenacted and with it the prosecution’s right to adduce in evidence against an accused another person’s
\nprior conviction. True it is that section 74 has no direct application to a case like the present where
\nboth accused stand trial together. But it is hardly to be thought that Parliament, had it turned its mind
\nto the comparatively rare case like the present where the question arises of using *636 evidentially
\nagainst B the jury’s already formed conclusion that A is guilty, would have proposed a different
\napproach. There is no logical reason why it should have done so, but rather every reason why it
\nwould have legislated for a similar approach. After all, as Professor Birch points out, in a joint trial B is
\nin a better position to challenge whatever evidence points to A’s guilt than if A had already been
\nconvicted at a previous trial. Moreover by the same token that under section 74 another person’s
\nconviction is admissible against the secondary accused irrespective of the nature of the evidence on
\nwhich that conviction had been based-whether identification evidence, out of court admissions or
\neven, indeed, the principal defendant’s plea of guilty at trial-so too, as already suggested, the
\nparticular evidential basis on which the jury find A guilty should equally make no difference merely
\nbecause, for obvious good reason, the two defendants are tried jointly.
\n91 For these reasons, which do not, I think, differ substantially from those given by Lord Steyn, I too
\nwould answer both the certified questions in the affirmative and would in the result dismiss this
\nappeal.
\nAppeal dismissed. Certified questions answered in the affirmative.
\nRepresentation
\nSolicitors: Ziades; Crown Prosecution Service.
\nS H
\n(c) Incorporated Council of Law Reporting for England & Wales
\n\u00a9 2016 Sweet & Maxwell
\nPage 24
\nPage 25<\/p>\n","protected":false},"excerpt":{"rendered":"
Critical Analysis Order Description This a critical Assessment of the merit of the decision of the majority in R v Hayter[2005]. The topic (sample nursing\u2026<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[8827,10099,10540,10536,10892,10538,10539,10537,10891],"tags":[10549,10616,10615,7687,10627,8857,10552,10295,10548,10622,8907],"class_list":["post-130058","post","type-post","status-publish","format-standard","hentry","category-australia-essays","category-buy-essay","category-cheap-essay-writers","category-get-assignments-done","category-page-paper","category-phd-essay-writers","category-research-paper-writing-service-for-any-topic","category-study-bay-essay","category-write-my-assignment-ireland","tag-ai-plagiarism-free-essay-writing-tool","tag-australian-best-tutors","tag-best-trans-tutors","tag-buy-essay-uk","tag-cheap-dissertation-writer","tag-help-with-writing-an-essay","tag-help-write-my-paper-ai-free","tag-homework-for-you","tag-online-essay-writers","tag-phd-essays","tag-write-my-essay-for-me"],"_links":{"self":[{"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/posts\/130058","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/comments?post=130058"}],"version-history":[{"count":0,"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/posts\/130058\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/media?parent=130058"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/categories?post=130058"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/tags?post=130058"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}