Judgment - Regina v. Myers  continued

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     In Lui Mei Lin v. The Queen [1989] A.C. 288 the decision in Reg. v. Rowson was held by the Privy Council to be entirely in line with the principles which had been expressed in two previous cases where the co-accused had been seeking to exercise the right to cross-examine conferred by section 1(f)(iii) of the Criminal Evidence Act 1898: Reg. v. Miller [1952] 2 All E.R. 667 and Murdoch v. Taylor [1965] A.C. 574. In those cases it was decided that, once a co-accused had given evidence against another co-accused, the latter was under the statute entitled without restriction to cross-examine him as to his character and his previous convictions. In Lui Mei Lin v. The Queen [1989] A.C. 288, 297F Lord Roskill said that the only limit on the right of a co-accused to cross-examine another co-accused is that of relevancy. In my opinion however different considerations apply where the co-accused is seeking to adduce evidence from the police about statements made by another co-accused which are inadmissible against that other co-accused who has not given, or who has yet to give, evidence. The principles which have been developed under reference to the right to cross-examine the co-accused as to his credibility do not apply in these circumstances. The hearsay rule, which has no application where a co-accused is being cross-examined about his own statements, has to be considered because the contents of a statement made to the police by a third party are hearsay evidence as to the truth of those contents. If the evidence is admissible, it must be by way of an exception to the hearsay rule. And the inadmissibility of the statement at the instance of the Crown has to be considered also, in a quite different context from that which applies where the maker of the statement is in the course of giving his evidence.

     I shall deal first with the hearsay rule. It appears that on this issue there is a conflict of authority. In Reg. v. Beckford and Daley [1991] Crim. L.R. 833 it was held that it would be a breach of the hearsay rule for the police witnesses to be cross-examined by counsel for one of the defendants about a confession made by the co-defendant in a police interview. The trial judge had held that that confession was inadmissible against the co-defendant because of a breach of the Code of Practice, so the evidence could not have been led by the prosecutor. He held that it could only be introduced by cross-examination of the co-defendant if he were to give evidence. The Court of Appeal held that to have allowed it to be put to the police officers would have been to create a new exception to the hearsay rule, contrary to the decision in Myers v. Director of Public Prosecutions [1965] A.C. 1001 that it was for the legislature, not the judiciary, to create such exceptions.

     In Reg. v. Campbell and Williams [1993] Crim.L.R. 448 the question about the hearsay rule did not arise directly. The evidence in question was a tape recording of a conversation in which Campbell implicated himself and Williams in the crime but supported the defence of a third defendant. The prosecutor did not lead this evidence because he had not been aware of it. The question arose when counsel for the third defendant sought to lead the evidence about the tape recording from his father in the face of objections from the other two co-defendants. The trial judge allowed the evidence to be led, on the ground that it was an admission which was admissible against Campbell. When Campbell gave evidence he adopted what he had said on tape as part of his evidence. The jury were told that the taped conversation was not evidence against Williams. Following their conviction Campbell and Williams appealed on the ground that the trial judge was wrong to admit the evidence of the tape recording. The Court of Appeal dismissed the appeals on grounds which were, in part, inconsistent with what was said in Beckford and Daley [1991] Crim. L.R. 833. Hobhouse J., who delivered the judgment of the court, sought to distinguish that case on a different ground, namely that the statement which the co-accused was not allowed to elicit had been held by the trial judge to be inadmissible at the instance of the prosecutor. But he made it clear that in his opinion the evidence, so long as it was not inadmissible on some other ground, could have been led under one of the recognised exceptions to the hearsay rule which enables an admission made by a party to a litigation to be led in evidence against him.

     It seems to me that two issues arise for decision on this part of the case. The first is how to resolve the conflict between Reg. v. Beckford and Daley and Reg. v. Campbell and Williams [1993] Crim.L.R. 448. The second, which it is convenient to deal with first, is whether to hold that there was no breach of the hearsay rule in such circumstances would be in conflict with what was said in your Lordships' House in Reg. v. Blastland [1986] 1 A.C. 41. In that case the appellant sought to call a number of witnesses to give evidence that a third party, who was not on trial with him as a co-defendant, had said things tending to show that he was guilty of the crime with which the appellant had been charged. He also sought to call the third party and to treat him as a hostile witness--the implication being that he would not be willing to admit the truth of these statements and perhaps also that he would deny making them. The evidence to be led from the other witnesses was therefore plainly hearsay evidence, and it was held to be inadmissible on this ground. When the Court of Appeal dismissed the appellant's appeal against his conviction they certified as a question of general public importance the question 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. The Appeal Committee of the House of Lords refused leave to appeal on this ground, but granted leave on another point. Commenting on this matter before moving to the other point, Lord Bridge of Harwich observed that this would involve creating a new exception to the hearsay rule and said, at pp.52H-53A: 

     "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."

     The situation in the present case is however not the same as that in Reg. v. Blastland. The statements which counsel for the appellant's co-accused was allowed to lead in evidence from the police witnesses were statements by his co-defendant, not by a person who could properly be described as a third party because he was not a party to the trial. There was no other way of eliciting this evidence because the maker of the statements was not a compellable witness for the co-defendant. It was evidence which was relevant to his defence, because it related to one of the crucial issues at the trial, namely whether it was the appellant or the co-defendant who had stabbed the deceased. Why then--leaving aside for the moment the second question which relates to its inadmissibility as prosecution evidence--should it be held to be inadmissible as evidence for the co-defendant?

     On this issue--which relates more directly to the conflict between Reg. v. Beckford and Daley and Reg. v. Campbell and Williams--some assistance can, I think, be gained from two recent decisions from Scotland in the High Court of Justiciary. These two cases, Perrie v. H.M. Advocate 1991 J.C. 27 and McLay v. H.M. Advocate 1994 J.C. 159, were both concerned with the question whether confessions made by a third party after the trial could be relied upon as additional evidence for the purposes of an appeal against conviction, on the ground that additional evidence which was not available at the trial had now become available. In Perrie v. H.M. Advocate the confession was said to have been made by a person whom the appellant had named at the trial as the person who had committed the crime. In McLay v. H.M. Advocate the confession was said to have been made by a person who had been tried together with the appellant on a charge of murder but had been acquitted. There was however this feature in common, that in the event of a new trial neither of the two persons who were said to have made the confessions would have been on trial with the appellant. The evidence of the persons to whom they were said to have made the confessions would have been hearsay evidence from third parties, just as in Reg. v. Blastland [1986] A.C. 41.

     In Perrie v. H.M. Advocate the appeal was refused for the same reason as in Reg. v. Blastland, and in McLay v. H.M. Advocate a court of five judges approved of the decision and, applying it to the facts of the case, also refused the appeal. In Perrie v. H.M. Advocate 1991 J.C. 27, 29 Lord Justice-Clerk (Lord Ross), said that the law of England was an uncertain guide as, unlike the position in England as described in Reg. v. Blastland where the categories of exceptions to the hearsay rule were said to be closed, that was not so in the law of Scotland. But in McLay v. H.M. Advocate 1994 J.C. 159, 166 the Lord Justice-Clerk said that any alteration to the hearsay rule as applied in criminal cases would have to be made by Parliament, so on this point I think that the law of the two countries can be taken to be virtually indistinguishable. The real interest to be found in these two Scottish cases is in the discussion, particularly in the five judge case of McLay v. H.M. Advocate, of the reasons why the hearsay rule has never been held in a Scottish case to prevent an accused from leading evidence from police and other witnesses of statements made to them by his co-accused which assisted his case although they were against the interest of the co-accused. Each of the five judges, all of whom were very experienced in the conduct of criminal trials, commented on this matter. But the most detailed discussion is to be found in the opinions of Lord McCluskey, at pp. 169-170 and Lord Sutherland, at p. 176.

     These opinions make it clear that the following are the reasons which are commonly given for admitting this evidence. First, the evidence could--leaving aside the question of other objections--have been led by the Crown, because it is relevant to the Crown case against the accused who made the statement and it has always been competent to lead evidence of admissions made by the accused as part of the Crown case. Second, evidence which tends to incriminate the accused who made the statement is relevant also to the defence of the co-accused, where only one of them could have committed the crime. Third, as the statement contains an admission against the interest of the person who made it, it is more likely to be true than false and it is therefore evidence which should be made available at the trial. Fourth, the evidence of those to whom the statement was made or heard it being made is the best evidence of the fact that the statement was made, as the person who made it is not a compellable witness at his own trial. And fifth, as the accused is a party to the proceedings at which the evidence is to be led, he or she has the protection which the law gives to accused persons in cases where evidence is to be led which may be incriminating.

     The following passage from the judgment of Hobhouse J. in Reg. v. Campbell and Williams which was quoted by Russell L.J. in his judgment in the present case, [1996] 2 Cr.App.R. 335, 342E-343B, sets out an approach to the problem which is consistent with that which has been taken in Scotland:

     "If the judge is saying 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 defendants are being tried together and the jury are entitled to take into account the strength of the case against one defendant when considering whether that weakens the case against another. One defendant is entitled to add to the strength of the case against a co-defendant with evidence admissible against that co-defendant if it assists his own defence to do so. The problem in Beckford was not relevance; it was that the 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. Correia never gave evidence so no opportunity arose to put it to him in cross-examination under the principle stated in Reg. v. Rowson [1986] Q.B. 174, and Lui Mei Lin v. The Queen [1989] A.C. 288. It is implicit in the decision in Beckford that the co-defendant cannot be in a better position than the prosecution in relation to the proof of an inadmissible confession as a confession."

     I respectfully agree with Russell L.J. that the reasoning on the issue of hearsay which is contained in Reg. v. Campbell and Williams is to be preferred to that in Reg. v. Beckford and Daley. But the point on which Hobhouse J.'s observations in Campbell were in agreement with what he took to be the decisive point in Beckford, namely that the co-defendant cannot be in a better position than the Crown in relation to the proof of a confession which is inadmissible against the defendant, must also be considered. This is the second issue, to which I now turn.

     In the Court of Appeal it was held that the inadmissibility of the police admissions at the suit of the Crown because of breaches of the Code of Practice did not affect the co-defendant, as it was never suggested that the statements were inadmissible because they were other than voluntary. Russell L.J. said, [1996] 2 Cr.App.R. 335, 340C-D:

     "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."

     In Reg. v. Beckford and Daley the statement was ruled by the trial judge to be inadmissible under section 78 of the Police and Criminal Evidence Act 1984 because it was made in the absence of a solicitor. It does not appear from the report that it was suggested that there were grounds for holding it to be inadmissible under section 76(2) of the Act. But the objection was upheld on the ground that the circumstances in which it was made were such that it would have such an effect on the fairness of the proceedings that the court ought not to admit it. In Reg. v. Campbell and Williams Hobhouse J. made it clear that he approved of the proposition which he held to be implicit in the decision in the Beckford case, that the co-defendant could not be in a better position than the prosecution in relation to the proof of a confession which was inadmissible. At first sight the decision of the Court of Appeal in the present case is not consistent with that approach.

     The grounds on which a confession may be held to be inadmissible in a criminal trial are set out in section 76(2) and section 78 of the Act of 1984. A confession is defined in section 82(1) as including:

     "any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in writing or otherwise."

     The primary rule is that in section 76(1), namely that in any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings. If however the prosecution proposes to give in evidence a confession which was or may have been obtained by oppression, or in consequence of anything said or done which was likely to render it unreliable, and it is unable to prove the contrary, the court is required by section 76(2) not to allow the confession to be given in evidence.

     That subsection does not refer to the position of a co-defendant who might wish to lead the same evidence. But it is hard to see why a co-defendant should be in a better position than the Crown if the confession was obtained in such circumstances. A confession which has been obtained by oppression or which, for other reasons, was not freely given and is unreliable, is worthless evidence. It is beyond question, as a general rule, that an accused person has the absolute right to lead all relevant evidence in his defence. He is not subject to discretionary control by the court, which has no power to exclude such evidence on the ground that it may prejudice a co-defendant or because it was obtained by improper or unfair means. This point was recently re-affirmed in Lobban v. The Queen [1995] 1 W.L.R. 877. As Lord Steyn explained, at p. 889B, the principled objection to the argument that there is a discretion to exclude such evidence is that it conflicts with a defendant's absolute right, subject to considerations of relevance, to deploy his case asserting his innocence as he thinks fit. Thus the trial judge does not have a discretionary power, as between co-defendants, to exclude relevant evidence on the ground that he is choosing the course which involves the lesser injustice as between the defendants. But there was no suggestion in that case that the statement by the co-defendant which, in part, was self-incriminating had been obtained from him by unfair means or was other than voluntary. It is at least open to question whether the rule extends to a case where the evidence which the defendant wishes to put in evidence consists of a confession which was made by a co-defendant in the circumstances which section 76(2) of the Act of 1984 describes. While it would appear not to be accurate to describe such a confession as irrelevant, in a case where the defendant's case is that the offence was committed by the co-defendant, the circumstances in which it was obtained may be said to have been such as to render it worthless for all purposes, whoever it is who seeks to rely on it. On this view it would be a proper exercise of his discretion by the trial judge to exclude such evidence even although the other defendant wished it to be put in evidence.

     Section 78 of the Act of 1984, on the other hand, is a provision of a different character. This is the provision under which, as Mr. Harman Q.C. for the Crown pointed out, the trial judge in this case would be likely to have held that the statements to the police ought not to be admitted in evidence if the prosecution had sought to lead that evidence. But once counsel for the co-defendant had made it clear that he wished to lead that evidence from the police officers, the trial judge was faced with a situation to which section 78 makes no reference. That section refers only to evidence on which the prosecution proposes to rely. It does not confer a discretion on the trial judge to exclude evidence of the kind which it describes on which a co-defendant wishes to rely.

     The Court of Appeal approached this matter on the assumption that the trial judge had an overriding discretion to exclude the evidence on the ground of unfairness: Russell L.J. [1996] 2 Cr.App.R. 335, 343E. They held that the exercise of the judge's discretion was not in any way flawed. It was not suggested in this case that the confession was obtained in circumstances which would have rendered it inadmissible at the Crown's instance under section 76(2)--Russell L.J. observed, at p. 341D, that it was not suggested that it was other than voluntary, which I take to be another way of saying the same thing. So I agree with the Court of Appeal that the trial judge did not err in admitting that evidence. It would perhaps be more accurate to say that he had no discretion to do otherwise, as this was relevant evidence on which the co-defendant wished to rely as part of his case, and there were no grounds for taking the view that it was evidence on which no reasonable jury could rely because it was worthless evidence. I would not wish to be taken as being of the view that a request by a co-defendant to be allowed to bring out evidence of a confession which had been obtained in breach of the Code of Practice should be acceded to in all circumstances. But this is a point on which we did not hear argument, and it is not necessary to reach a view upon it in order to reach a decision in this case.

     The certified question does not, in my opinion, sufficiently analyse the issues which have arisen in this case. It does not distinguish between confessions which are inadmissible on grounds of oppression or unreliability and confessions which are held to be inadmissible on other grounds, and it approaches the matter as if it can be resolved simply by considering whether to admit the evidence would offend the rule against hearsay. I would therefore decline to answer it. But, as I agree with the way in which the Court of Appeal have disposed of this case, I also would dismiss the appeal.


My Lords,

     I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Slynn of Hadley. I agree that, for the reasons which he gives, this appeal should be dismissed.


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Prepared 24 July 1997