House of Lords
Session 1997-98
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Judgments - Regina v. Myers


  Lord Mustill   Lord Slynn of Hadley   Lord Steyn
  Lord Hope of Craighead   Lord Hutton





ON 24th JULY 1997


My Lords,

     The appellant, Melanie Myers, and a man, Clifton Quartey, were charged in one count in the same indictment with the murder of a mini-cab driver, Muzhar Hussein, on 12 April 1994. An application by Myers for a separate trial, opposed by the prosecution and, it seems, also by Quartey, was rejected by the trial judge and on 17 February 1995, Myers was convicted of murder and Quartey of manslaughter. Myers' appeal to the Court of Appeal was dismissed but the court gave her leave to appeal to your Lordships' House and certified that the following point of law of general public importance was involved in its decision, namely:

     "In a joint trial of two defendants A and B, is an out of court confession by A which exculpates B but which is ruled, or is conceded to be, inadmissible as evidence for the Crown nevertheless admissible at the instigation of B in support of B's defence, or does such a confession in all circumstances offend the rule against hearsay?"

     The question arose in this way. Myers and Quartey with a young girl were driven in the cab from Wembley to Howarden Hill where Myers had lived and where she was subsequently arrested. At 9.45 p.m. the driver was found by a couple who lived on the Howarden Hill estate. He had been stabbed and cut in a number of places. He died later that evening in hospital, the cause of death being found on a post-mortem examination to have been a single stab which entered his heart.

     The Crown's case was that this was a joint enterprise each intending to rob the driver and each being prepared to inflict serious injury on him in the course of doing so. Quartey denied that there was any plan to rob the driver. Myers had ordered the cab and he assumed that she would pay. His evidence was that she put a knife to the driver's throat in the car and struggled with him when they were both out of the car. He took no part. Myers' case was that it was Quartey's idea to rob the driver and that he pulled a knife when they were all out of the car and stabbed the driver.

     The central problem in the case arose from the existence of statements made by Myers to police officers after her arrest.

     During a conversation with one police constable at the police station she is alleged to have said, "I didn't do it, well I did do it," "I did not mean to stab him, I had the knife and he kept coming forward at me. We only wanted to take his money and that's all, I thought it would only have been a G.B.H." When asked, "Did you have the knife?" she replied, "Yes I had it, I didn't mean to kill him and when I read about it in the paper I couldn't believe it so I just went to Birmingham out of the way." To three other officers in a vehicle on the way to the magistrates' court she was alleged to have said, "I reckon I'll get a few years for this." Asked why she replied, "Well I cut him didn't I he wanted to be a fucking hero so I cut him."

     It was the possible prejudice which could arise to one or other of the defendants if these statements were, or were not, allowed in, and the dispute as to how far they were admissible, which led to the application for separate trials. Albeit recognising the difficulty which could arise from admitting these statements in one trial the judge was more than satisfied that he should not order separate trials:

     "In any event I cannot think of a case where it would be more important and more appropriate for the two defendants to be tried together. The circumstances which I briefly outlined cry out for a joint trial. One jury should determine all issues on all the relevant and available evidence between all three parties; the Crown and the two defendants."

     That decision was challenged on appeal. The Court of Appeal [1996] 2 Cr.App.R. 335, 339 referred to what was said in Reg. v. Lake (1976) 64 Cr.App.R. 172, 175 namely:

     ". . . a joint offence can properly be tried jointly, even though this will involve inadmissible evidence being given before the jury and the possible prejudice which may result from that."

     They took the view that the exercise of the trial judge's discretion could on this question not be faulted--he had looked at the competing interests of both defendants in reaching his decision. There is no appeal to your Lordships directly against that decision but the admissibility of Myers' statements to the police officers in the joint trial remains in issue.

     Although the prosecution relied on a confession, in similar terms to those made to the police officers, which was made to one Charles Williams, the prosecution did not seek to put before the jury either of the statements made to the police officers because there had been breaches of the Code of Practice issued pursuant to sections 66 and 67 of the Police and Criminal Evidence Act 1984. Counsel for Quartey submitted that he was entitled to adduce evidence of the confessions as being relevant to his client's case and therefore admissible. Counsel for Myers opposed the admission of the statements relying on section 76(2)(b) and 78 of the Act of 1984. He submitted that, if Myers gave evidence, counsel for Quartey could cross-examine her on the confessions and if she denied having made them, he could call evidence of what was said pursuant to Lord Denman's Act, the Criminal Procedure Act 1865 (28 & 29 Vict. c.18). This would involve the jury being told that the confessions would not be evidence of the commission of the crime by her but would go to her credibility. The trial judge considered that "It would be an impossible task for the jury to draw that distinction."

     In considering whether the statements should be admitted the judge found that there was a direct conflict between two Court of Appeal decisions Reg. v. Campbell and Williams [1993] Crim. L.R. 448 and Reg. v. Beckford and Daley [1991] Crim. L.R. 833. Following the course that he thought right, he ruled that "a statement against interest by one party is provable against that party by another so long as both remain parties to the particular action." The confessions were relevant to Quartey's case and, since sections 76 and 78 did not apply, there was no fetter on counsel for Quartey adducing this evidence "either by way of cross-examination of the officers if they are called by the Crown or by calling them as part of his case."

The Court of Appeal [1996] 2 Cr.App.R. 335, 340, accepted as trite law that:

     ". . . a statement made by one defendant in the absence of another cannot be evidence against that other. Juries have to be directed and are expected to put out of their minds any such material however compelling. But the content of any such statement may well be evidence against the maker of the statement if it amounts to an admission of guilt."

They continued:

     "In a case such as the present, we are of the opinion that the confession was relevant to the co-defendant's case as supporting that case to the effect that responsibility did not lie with the co-defendant but solely with the statement maker. The fact that the confession, though voluntary, was made to a police officer in breach of the Police and Criminal Evidence Act 1984 does not affect the matter so far as the co-defendant was concerned. It was admissible just as much as it would have been if made to a casual passer-by."

At p. 341:

     "In our view the method by which counsel for Quartey elicited the evidence, in the context of this case, is unimportant. The evidence, however elicited, was relevant to the defence, and in our view did not offend any rule of hearsay because what the appellant said amounted to a confession made by a party to the proceedings (see for example Cross and Tapper on Evidence 8th ed. (1995) (p.315). It is to be contrasted with an admission made by a person not a party to the proceedings who is not called to give evidence. Such a statement is hearsay on the authority of Reg. v. Blastland."

     The Court of Appeal found that there was a conflict between the decision in Beckford and Daley on the one hand and Campbell and Williams on the other which could not be validly distinguished. They preferred the reasoning in Campbell and Williams and on that basis dismissed the appeal.

     The first question is whether there is a conflict between these two cases.

     In Reg. v. Beckford and Daley three men were charged with murder. One of them, Correia, admitted in an interview with the police that he had stabbed a man near a door in a bar. His confession was not admitted by the judge because of a breach of the Code of Practice to which I have referred. Counsel for Daley applied to cross-examine the police witnesses about Correia's confession. Auld J. ruled that this confession could only be introduced through cross-examination of Correia. To allow it through cross-examination of the police would breach the hearsay rule as stated in Phipson on Evidence, 14th ed. (1990), p. 557, para. 21-02 viz.:

     "Former statements of any person whether or not he is a witness in the proceedings, may not be given in evidence if the purpose is to tender them as evidence of the truth of the matters asserted in them. The rule at common law applies strictly to all classes of proceedings, and there is no special dispensation for the defendant in a criminal case . . ."

     Auld J. with whom the Court of Appeal, in a judgment given by Watkins L.J. agreed, said:

     "His [counsel for Daley's] application, to succeed as to relevance, must be that the statement made by Correia to the police officer is not only adverse to Correia but favourable to Daley but the exception to the hearsay rule does not permit the admission of confessions of one person in relation to the case against another, whether they are for or against that other."

     He could not create a new exception to the hearsay rule to cover that case since on the basis of Myers v. Director of Public Prosecutions [1965] A.C. 1001 and Reg. v. Blastland [1986] A.C. 41 the category of exceptions to the hearsay rule is now closed and could only be extended by the legislature.

     He further ruled that section 76 of the Act of 1984 applied only as between the prosecution and the defendant whose confession was sought to be given against him and added:

     "In my view section 76 does not touch the general rule of which the case of Turner and Blastland are examples and that the same principle applies whether or not the statement of confession sought to be adduced is made by a third party to the proceedings or by a co-defendant."

     It is, however, not without interest that the Court of Appeal felt that had Correia's confession been admitted, the jury might have taken a different view as to the cogency of evidence that it was Daley and not Correia who had struck the fatal blow and convicted Correia, acquitting Daley. They said "As we have said, the hearsay rule, sound though it is when usually applied is capable sometimes of obscuring--shielding even--the truth. It may have done so here." In the result, although the court held that the judge was right not to allow Correia's confession to be introduced through cross-examination of the police witnesses, the conviction of both men was quashed.

     In Reg. v. Campbell and Williams one of three defendants ("A") had recorded a conversation which clearly implicated him and another defendant ("B") but which supported the defence of a third defendant ("C"). The prosecution had not known of this evidence but did not object to the evidence being given on behalf of "C". "A" and "B" objected on the ground that this was inadmissible evidence though no suggestion was made that it would have been excluded under the Act of 1984 if the prosecution had sought to adduce it. The trial judge ruled that the evidence could be led; it was a confession admissible against "A" and its admission did not adversely affect the fairness of the trial. "A" in evidence adopted what he had said in the tape. The jury was told that the taped conversation was not evidence against "B".

     On appeal "A" and "B" contended that the judge was wrong to admit the evidence of the tape and that this was a material irregularity in the trial. The Court of Appeal, in a judgment given by Hobhouse J., rejected these contentions and dismissed the appeal. Hobhouse J. distinguished (a) "straightforward hearsay statements" which are not admissible unless falling within one of the recognised exceptions when they become evidence for all purposes; (b) previous inconsistent statements admissible to challenge a witness and usable only to discredit him and (c) a confession only admissible against the party who made it and then subject to special safeguards in criminal cases.

     He distinguished the decision in Reg. v. Beckford and Daley from Reg. v. Campbell and Williams on the basis that the former was a case where the confession of one defendant had been ruled inadmissible under the Act of 1984 so that another defendant could not get it in as part of his cross-examination of a police witness. In Reg. v. Campbell and Williams on the other hand the question raised was as to "whether it is permissible for a defendant to adduce confession evidence against a co-defendant when the prosecution has not adduced that evidence, although there would have been no objection to its doing so." Recognising the conflicts which can arise in a joint trial he said:

     "Thus it is commonplace that in criminal trials one defendant's interest may be that the prosecution's case against a co-defendant should be strengthened and should succeed. A defendant is therefore entitled to lead admissible evidence which is relevant to the proof of the case against the co-defendant if in so doing the defendant is advancing his own case."

     "[To say] that the proof against one defendant that he has confessed to the crime with which a co-defendant is also charged is not relevant to the case of the co-defendant in the same trial, that would, in our judgment, be contrary both to common sense and to the cases we have earlier referred to."

     The problem in Reg. v. Beckford and Daley was not relevance; it was that evidence of the confession had already been ruled inadmissible as against Correia and therefore it could only be put in evidence at the trial if it was admissible on some other basis. As the judge and the Court of Appeal held, it was not, ". . . it is implicit in the decision in Beckford that a co-defendant cannot be in a better position than the prosecution in relation to the proof of an inadmissible confession."

He went on:

     "Beckford is clearly distinguishable on the ground that the confession was not admissible as a confession and the question raised was whether the appellant could independently adduce the out-of-court statement. Here the question is whether the proof of a confession which was admissible against the appellant was a material irregularity in the trial of the appellant because the evidence by which it was proved was led by a co-defendant not the prosecution. Accordingly we consider that the decision in Beckford does not preclude us from reaching a conclusion in the present case that the admission of the confession did not amount to an irregularity during the trial material to the conviction of either appellant."

     The situations in Beckford and Campbell were, I agree, different. Beckford was concerned with the admissibility of a confession which the prosecution could not put in because of breaches of the police Code of Practice whereas in Campbell there was no suggestion of any such breach, the issue being whether there was some other irregularity in the trial because of the admission of the tape which it was sought to put in as a confession by one defendant to be used against and only against that defendant.

     Yet it seems to me, as it did to the Court of Appeal in the present case, that on the issue crucial to the present case the two decisions of the Court of Appeal are in conflict. In Beckford Auld J. and the Court of Appeal rejected the submission that in a joint trial a defendant could rely on another defendant's confession to support his own case albeit it was not evidence against the maker of the statement. In Campbell the Court of Appeal held the statement of one defendant to be admissible as a confession furthering the case of the co-defendant. In both cases the evidence was clearly relevant.

     Since the specific grounds of exclusion of a confession in section 76(2) of the Act of 1984 relate to confessions which the prosecution proposes to put in evidence that section does not apply to the present case where it is the co-accused seeking to put in the confession. Section 78 of the Act of 1984 provides for the exclusion of "evidence on which the prosecution proposes to rely" where the judge thinks that the admission of the evidence would lead to unfairness. That again does not apply to the present case.

     It is therefore necessary to consider whether other authorities indicate that the decision in Reg. v. Campbell and Williams or that in Reg. v. Beckford and Daley is the one which ought to be followed.

     In Reg. v. Blastland [1986] A.C. 41 a defendant charged with the murder of a young boy sought to call witnesses to say that another man "M" had told them before the boy's body had been discovered that a young boy had been murdered. The trial judge refused the application on the basis that such evidence was hearsay and inadmissible. The Court of Appeal upheld the judge's decision. Two questions were certified as involving points of law of general importance, viz. (see p. 42):

      "(1) Whether the confession by a person other than the defendant to the offence with which the defendant is charged is admissible in evidence where that person is not called as a witness (Reg. v. Turner (Bryan) (1975) 61 Cr.App.R. 67). (2) Whether evidence of words spoken by a third party who is not called as a witness is hearsay evidence if it is advanced as evidence of the fact that the words were spoken and so as to indicate the state of knowledge of the person speaking the words if the inference to be drawn from such words is that the person speaking them is or may be guilty of the offence with which the defendant is charged."

     Leave to appeal was given only on the second question but as to the first question Lord Bridge of Harwich, whilst repeating that a refusal of leave to appeal by an Appeal Committee of the House is not the equivalent of an authoritative decision of the House affirming the decision of the Court of Appeal, stated at pp. 52-53:

     "However the decision of the Court of Appeal (Criminal Division) in Reg. v. Turner (Bryan) 61 Cr.App.R. 67, which an appeal on the first certified point would call in question, was itself based on the majority decision of your Lordships' House in Myers v. Director of Public Prosecutions [1965] A.C. 1001, which established the principle, never since challenged, that it is for the legislature, not the judiciary, to create new exceptions to the hearsay rule. To admit in criminal trials statements confessing to the crime for which the defendant is being tried made by third parties not called as witnesses would be to create a very significant and, many might think, a dangerous new exception."

     As to the second question, Lord Bridge accepted, at p. 54, that statements made to a witness by someone other than the accused were not excluded by the hearsay rule when they were put in evidence solely to prove the state of mind either of the maker of the statement or of the person to whom it was made. Yet he said that such a principle can only apply when the particular state of mind "is either itself directly in issue at the trial or of direct and immediate relevance to an issue which arises at the trial." In that case the state of mind of "M" was not in issue or directly relevant to the issue whether the defendant killed the boy since "M" may have acquired knowledge of the death in a number of ways.