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Judgments - Regina v Hayter (Appellant) (On Appeal from the Court of Appeal (Criminal Division))


SESSION 2004-05
[2005] UKHL 6
on appeal from: [2003] EWCA Crim 1048






Hayter (Appellant)

(On Appeal from the Court of Appeal (Criminal Division))



The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Steyn

Lord Rodger of Earlsferry

Lord Carswell

Lord Brown of Eaton-under-Heywood




Regina v. Hayter (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

[2005] UKHL 6


My Lords,

    1.  I have had the advantage of reading in draft the opinions of all my noble and learned friends. For the reasons given by Lord Brown of Eaton-under-Heywood, which are substantially those of Lord Steyn also, I too would answer both the certified questions in the affirmative and would accordingly dismiss this appeal.


My Lords,

    I. The case in a nutshell

    2.  On the present appeal a point of law of general public importance arises about the principle that the confession of a defendant is inadmissible in a joint criminal case against a co-defendant.

    3.  What the point is, and how it arises, is best introduced by a simplified description of the real case of murder which in June 2001 came for trial before Judge Hyam, the Recorder of London, and a jury. The trial took place at the Central Criminal Court. Three defendants were charged with murder. All three were indicted as principals. The prosecution case was as follows. The first defendant (Bristow) was a woman who wanted to arrange a contract killing of her husband. The evidence against her came from a number of sources and was cogent. The third accused (Ryan) was the killer who actually shot and killed the husband of the first defendant. The evidence against the killer was solely based on a confession which he had allegedly made to his girlfriend. The prosecution case was that the contract killing was arranged by the first defendant through the second accused (Hayter) who engaged and paid the killer. The judge invited the jury to consider in logical phases the cases against the alleged killer, then against the woman who allegedly procured the killing, and finally against the middleman. The judge directed the jury that only if they found both the actual gunman, and the woman who arranged the killing, guilty of murder, would it be open to them, taking into account those findings of guilt, together with other evidence against the middleman, to convict the middleman. The jury convicted all three defendants of murder.

    4.  The principal argument on behalf of the middleman was and is that the rule that an out of court confession by one defendant may not be used by the prosecution against a co-defendant has been breached by the way in which the judge directed the jury.

    5.  In a reserved judgment given by Mantell LJ the Court of Appeal (Criminal Division) upheld the rulings of the trial judge and dismissed the appeal of the middleman: R v Hayter [2003] 1 WLR 1910. The court granted a certificate that a point of law of general public importance under section 33(2) of the Criminal Appeal Act 1968 was involved in the decision. The certified questions were as follows:

    "(1) In a joint trial of two or more defendants for a joint offence is a jury entitled to consider first the case in respect of defendant A which is solely based on his own out of court admissions and then to use their findings of A's guilt and the role A played as a fact to be used evidentially in respect of co-defendant B?" and, if so,

    (2) Where proof of A's guilt is necessary for there to be a case to answer against B, is there a case to answer against B at the close of the prosecution case where the only evidence of A's guilt is his own out of court admissions?"

The Court of Appeal refused leave to appeal. The House of Lords granted leave to appeal.

    II. A joint trial

    6.  The practice favouring joint criminal trials is clear. It has been accepted for a long time in English practice that, subject to a judge's discretion to order separate trials in the interests of justice, there are powerful public reasons why joint offences should be tried jointly: R v Lake (1976) 64 Cr App R 172, 175, per Widgery CJ. While considerations of the avoidance of delay, costs and convenience, can be cited in favour of joint trials this is not the prime basis of the practice. Instead it is founded principally on the perception that a just outcome is more likely to be established in a joint trial than in separate trials. The topic is intimately connected with public confidence in jury trials. Subject to a judge's discretion to order otherwise, joint trials of those involved in a joint criminal case are in the public interest and are the norm. This practice hardly requires citation of authority but in recent times the practice has been affirmed by the Privy Council in Lobban v The Queen [1995] 1 WLR 877, 884B-D and by the House of Lords in R v Randall [2004] 1 WLR 56, para 16, 61F. Conceivably, in the present case, the middleman could have applied for an order severing his case on the ground that he might be prejudiced in a case in which a co-accused (Ryan) allegedly made a confession. The answer to such an application would usually be that the judge would give appropriate directions. In some cases such directions may include directions about the editing of a confession. In the present case no application for severance was made. If it had been made, it would almost certainly have been refused. It was in the public interest that the three accused should be tried jointly. It was a paradigm case for a joint trial.

    III. The rule about confessions

    7.  A voluntary out of court confession or admission against interest made by a defendant is an exception to the hearsay rule and is admissible against him. That was so under the common law. That is also the effect of section 76 of the Police and Criminal Evidence Act 1984. (Given the wide definition of confession in section 82(1) of PACE I will simply refer to confessions.) A confession is, however, generally inadmissible against any other person implicated in the confession. The rationale of the rule was stated in the 12th edition (1936) of a Digest of the Law of Evidence by Sir James Fitzjames Stephen as follows (at 36):

    "A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only."

    (My emphasis)

In a joint trial the prosecution may not rely on what the maker of a confession said against a co-accused. This is a general rule of law. It is buttressed by a rule of practice requiring a trial judge to direct the jury to ignore a confession made by an accused in considering the case against a co-defendant.

    8.  The confession of Ryan was irrelevant and inadmissible in the case against the other defendants. And the judge was bound, in accordance with well settled principles of criminal practice, to direct the jury accordingly. That is exactly what he did.

    9.  For the sake of completeness, I would mention section 76A of PACE which was inserted by section 128 of the Criminal Justice Act 2003. Section 76A(1) provides that, subject to its terms, a confession made by an accused person may be given in evidence for another person charged in the same proceedings (a co-accused) insofar as it is relevant to any matter in the proceedings. This provision has not yet been brought into operation. And, in any event, on the facts of this case it would not have been relevant even if it had been in operation.

IV. The prosecution case

    10.  The shape of the prosecution case against the three accused was as follows. The indictment charged Angela Bristow, Paul Hayter and Raymond Ryan, respectively accused Nos. 1, 2 and 3, with the murder of Mario Commatteo. On 30 March 2000 he was shot in the head at point blank range with a 12-bore shotgun as he was leaving his home. He died instantly. Bristow lived with the deceased. In the case against Bristow there was abundant evidence that in the two years preceding her husband's death she had repeatedly stated to various witnesses that she wanted him killed. On occasions she asked witnesses whether they could help to kill him. There was evidence of association between Bristow and Hayter (the alleged middleman) during the first half of 2000 including a number of telephone calls. Hayter was a frequent customer of Bristow's sandwich shop. In turn Bristow was a customer of Hayter's car-wash. There was also evidence of associations between Hayter and Ryan. In addition there was evidence that on two occasions after the murder Hayter had sent packages containing £400 and £500 in cash to Ryan via the witness Lee Salter who was then employed by Hayter. There was evidence from which the Crown invited the jury to infer that the money came from Bristow who, it was suggested, had added the money to the bags of sandwiches which Lee Salter had been sent to collect by Hayter. When seen by the police in July 2000 Hayter had falsely minimised the extent of his association with both co-defendants and maintained that position when he was arrested and interviewed under caution in September 2000. The Crown conceded at trial that the circumstantial evidence against Hayter did not provide a case to answer unless it could be proved that Ryan was the killer. The case against Ryan was dependent upon his alleged confessions to his girlfriend Vanessa Salter. There was no evidence independent of those confessions which identified Ryan as the killer. In those confessions Ryan was alleged to have implicated Hayter as his recruiter and paymaster.

V. Ruling on the submission of no case to answer

    11.  At the end of the prosecution case counsel for Bristow invited the judge to rule that she had no case to answer. The judge rejected this submission. Counsel for Hayter, but not counsel for Ryan, made a similar submission that Hayter had no case to answer. The judge held that if the jury were satisfied on evidence admissible against Ryan that he was the killer then that conclusion was relevant in considering the case against Hayter. The judge observed:

    "This analysis shows that the prosecution are not using and do not seek to use the alleged confession of [Ryan] to confront any part of [Hayter's] defence. There is thus no erosion of the fundamental evidential rule that the alleged confession of one defendant in the absence of the other defendant is not evidence against that other defendant."

This ruling formed the legal basis on which the judge in due course summed up the case against Hayter.

VI. The evidence for the defence

    12.  The case continued against all three defendants. Bristow and Ryan testified in their own defence. Hayter did not give evidence.

    VII. The judge's summing up

    13.  The judge gave a detailed summing up which, leaving aside the points of law in issue, has not in any way been criticised. It was a characteristically thorough and helpful summing by the late Recorder of London.

    14.  It is only necessary to deal with the summing up so far as it has an impact on the points of law at issue. The judge directed the jury in clear terms that the evidence of Vanessa Salter about the confession that Ryan allegedly made to her was only evidence in the case against Ryan and not evidence in the separate cases against Bristow and Hayter. It is necessary to set out the relevant part of the summing up in extenso:

    "The second distinction that I should make as a matter of law between Vanessa Salter's evidence of Raymond Ryan's confession only being admissible against him is this. If, as a result of considering her evidence, you were sure that Raymond Ryan murdered Mario, you could properly use that finding of guilt in your consideration of the cases of Angela Bristow and Paul Hayter. Your approach to those cases will then be to use the fact of Raymond Ryan's guilt simply as a fact in the consideration of the cases of the other two defendants.

    If you are sure of the fact of Raymond Ryan's guilt, you could then go on to consider the individual cases of Angela Bristow and Paul Hayter on the admissible evidence against them, all the while, taking care not to allow anything in Vanessa Salter's evidence regarding Raymond Ryan's confession which may have indicated Angela Bristow or Paul Hayter to play any part in your consideration of their cases.

    In short, if you found Raymond Ryan guilty you could use the fact of his guilt in your consideration of his co-defendants' cases, but not allow any of the evidence of Vanessa Salter as to what Raymond Ryan may have said to her to play any further part in your deliberations.

    It is for that reason I strongly advise you as a matter of logic and good sense to consider first the case of Raymond Ryan.

    If you find him guilty, you may use the fact of guilt in the way I have just described in your consideration of the case of Angela Bristow and of Paul Hayter.

    If you have found Raymond Ryan guilty, you should then consider the case of Angela Bristow, and finally the case of Paul Hayter. If, in following that advice you found Raymond Ryan not guilty, or Angela Bristow not guilty, you would not have to consider the case of Paul Hayter at all; because if Raymond Ryan did not on your finding kill Mario Commatteo you must acquit Paul Hayter because the prosecution would have failed to prove both that Angela Bristow had procured him to kill Mario and that he had procured Ryan to kill him.

    You would, of course, have to consider whether Angela Bristow was guilty of procuring Mario's death, notwithstanding that Ryan did not do it upon the basis I explained earlier when defining her role as an accessory for murder. I said that if you were sure first that she procured Mario's death by recruiting another, or others, to kill him. Secondly, that when she procured another or others you are sure that she did so with the intention of bringing about Mario's death.

    So the position, in brief, is that you should if you follow my advice, consider Raymond Ryan's case first. If you conclude that he is not guilty of that offence, you would automatically conclude that Paul Hayter is also not guilty.

    You would nonetheless go on to consider whether Angela Bristow was nonetheless guilty because she procured another, or others, to kill with the intention that Mario should be killed.

    If, on the other hand, you were to find Raymond Ryan guilty, then you would go on to consider the case of Angela Bristow. If you found Angela Bristow guilty as well as Raymond Ryan, then you would go on to consider the case against Mr Hayter. If you found Angela Bristow not guilty, even or though you found Ryan guilty, you would have to find Paul Hayter not guilty, because the link in the case of Mr Hayter is that you must find both Raymond Ryan and Angela Bristow guilty before you could find the defendant, Mr Hayter, guilty."

These are the passages in the summing up which are relevant to the points of law on this appeal.

VIII. The convictions

    15.  On 3 July 2001, the jury returned verdicts of guilty of murder against all three accused. The judge sentenced each to life imprisonment.

IX. The Court of Appeal judgment

    16.  Hayter appealed to the Court of Appeal (Criminal Division). He relied on two grounds of appeal. First, his case was that the judge had erred in law (1) in directing the jury that, in the event that they convicted Ryan of murder, they could use their finding that he was the killer as evidence in the case against Hayter and, (2) in failing to withdraw the case from the jury at the close of the Crown's case when there was no evidence admissible against Hayter sufficient to amount to a case to answer.

    17.  The Court of Appeal took the view that the judge's reasoning was in accord with first principles: R v Hayter [2003] 1 WLR 1910. Mantell LJ reviewed three earlier decisions of the Court of Appeal, viz R v Rhodes (1959) 44 Cr App R 23; R v Spinks [1982] 1 All E R 587; R v Hickey (unreported), 30 July 1997 (the "Carl Bridgewater" case). Mantell LJ observed (at para 16, 1914H):

    ". . . it is perhaps worth remembering that at the time of both decisions [Rhodes and Spinks] evidence of a prior conviction would not have been admissible in separate criminal proceedings to establish the truth of the underlying allegation: see Hollington v F Hewthorn & Co Ltd [1943] KB 587. If it is necessary to say so, the same is true of the time when the trial of Hickey took place."

Mantell LJ drew attention to section 74 of PACE. It provides:

    "In any proceedings the fact that a person other than the accused has been convicted of an offence by or before any court in the United Kingdom or by a Service court outside the United Kingdom shall be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that that person committed that offence, whether or not any other evidence of his having committed that offence is given."

Mantell LJ observed that section 74 removed the foundation for the decisions in Spinks and Rhodes: para 18, at 1915C. He did not think that the three decisions reviewed by him stood in the way of applying the principled analysis adopted by the trial judge.

X. The primary submission of Hayter.

    18.  Counsel for Hayter relied on the general rule that a confession is only relevant and admissible against the maker of it. The existence of this rule, as well as the auxiliary rule that a trial judge in a joint trial must direct a jury not to rely on the confession of one defendant against other defendants, is not in doubt. The controversy is about the application of the rule in the present case. Counsel for Hayter said that his central submission was that the judge, by permitting the jury to use their finding that Ryan was guilty, in effect permitted the jury to rely on the words and content of the confession of Ryan as evidence against Hayter.

    19.  In my view counsel for Hayter has not established this proposition. In clear terms the judge directed the jury not to take into account the words or content of Ryan's confession in the case against Hayter. Subject to the jury being satisfied of the guilt of Ryan and Bristow, he directed the jury that they could take into account those findings, together with other evidence, in the case against Hayter. There is, therefore, no direct or indirect infringement of the rule. This becomes even clearer when one bears in mind that the mischief at which the rule is directed is to prevent the content or words of a confession to be used against anybody but the maker. The judge, of course, directed the jury that they could not use the content or words of any part the confession of Ryan against Hayter. And there is no reason to doubt that the jury would have understood and given effect to this direction.

    20.  This conclusion is reinforced if one postulates, contrary to the facts of the case, that Ryan made no out of court confession but that his guilt was established by an eye witness, a fingerprint or circumstantial evidence. In such circumstances counsel for Hayter rightly accepted that the judge would have been entitled to direct the jury that they may take into account their finding that Ryan was guilty of murder in considering the case against Hayter. What is the difference? Counsel for Hayter said that in the case of evidence by an eye witness, a fingerprint or circumstantial evidence, the evidence is "evidence in the whole case". This is analytically not an answer. It obscures the true position. It is necessary to consider the case against each defendant separately. That is part of the very alphabet of criminal practice. The three hypothetical types of evidence against a gunman in the position of Ryan would be irrelevant to the case against Hayter and would therefore as a matter of law be inadmissible in the separate case as against Hayter. On the hypothesis that there was evidence in such categories the judge would in practice not have directed the jury to ignore such evidence. The reason is, of course, that it is perfectly obvious that none of these categories of evidence could implicate Hayter. It would be unnecessary to give any such direction. On the other hand, a finding by the jury that Ryan was guilty of murder in the three postulated cases could logically be relevant in the case against Hayter. Counsel for Hayter accepted this proposition. If that is right, there is no sensible or rational reason why the same should not apply in the case of an out of court statement by a defendant. Logically this strongly reinforces the conclusion I have reached. Criminal practice is not impervious to logic.

    21.  It is also necessary to approach the point from the perspective of policy. The rule in Hollington v Hewthorn [1943] KB 587, was to the effect that evidence that a person had been convicted of an earlier offence was inadmissible in civil or criminal proceedings so as to prove that that person had in fact committed the offence. This rule was abolished for civil proceedings by section 11 of the Civil Evidence Act 1968 and for criminal proceedings by sections 74-75 of the Police and Criminal Evidence Act 1984: see Current Law Statutes Annotated, 1984, Vol 4, 60-120. This legislation marked an advance of the rationality of our law. It is true that section 74 of PACE is not available to prove the guilt of one defendant of the offence which is the subject of a joint trial. Given the legislative policy underlying section 74, it would, however, be curious if the procedure adopted by the Recorder of London in the present case is not available in a joint trial. That is when in practice it is most needed. Counsel observed that the remedy was to indict Ryan separately and to adduce his conviction against Hayter in a subsequent trial. That would have been possible. But, for reasons I have already set out, such a procedure would have been contrary to the public interest. The policy underlying section 74 suggests that it would be wrong and anomalous now to give an unnecessarily expansive reach to the rule about out of court confessions.

    22.  In a generally favourable case note on the decision of the Court of Appeal in the present case Professor Diana Birch ((2003) Crim LR 887-888) pointed out that a joint trial has the advantage that the secondary party is in a better position to challenge the evidence pointing to the guilt of the principal and does not incur any burden of proof even where the evidence against the principal is extremely strong. The procedure adopted by the Recorder of London served the interests of justice.

    23.  In my view the Court of Appeal correctly concluded for the reasons Mantell LJ gave that the decisions in Rhodes and Spinks do not stand in the way of a principled decision such as the Recorder of London adopted. Nowadays, and particularly since the enactment of section 74, these cases would be differently decided. And at the time when the trial of Hickey took place Hollington v Hawthorn still held sway. In any event, so much went wrong in the case of Hickey, as counsel for the Crown showed, that this decision ought not to be allowed to continue to bedevil any branch of criminal law.

    24.  For these reasons I would reject the primary argument on behalf of Hayter.

    25.  If I am wrong in my approach, I would conclude that only a modest adjustment of the rule about out of court confessions in joint trials is necessary and I would be prepared to make a modification sanctioning the sensible and just procedure adopted by the Recorder of London. It is a principled evolution in keeping with modern developments, statutory and judge made, which corrected some of the worst absurdities of the law of evidence of a bygone era. This view is reinforced if one stands back and considers the rule in question in a broader legal context. The rule about confessions is subject to exceptions. Keane, The Modern Law of Evidence 5th ed., (2000) p 385-386, explains:

    "In two exceptional situations, a confession may be admitted not only as evidence against its maker but also as evidence against a co-accused implicated thereby. The first is where the co-accused by his words or conduct accepts the truth of the statement so as to make all or part of it a confession statement of his own. The second exception, which is perhaps best understood in terms of implied agency, applies in the case of conspiracy: statements (or acts) of one conspirator which the jury is satisfied were said (or done) in the execution or furtherance of the common design are admissible in evidence against another conspirator, even though he was not present at the time, to prove the nature and scope of the conspiracy, provided that there is some independent evidence to show the existence of the conspiracy and that the other conspirator was a party to it.

    . . .

    There is also a third exception, in fact an extension of the second: when, although a conspiracy is not charged, two or more people are engaged in a common enterprise, the acts and declarations of one in pursuance of the common purpose are admissible against another. This principle applies to the commission of a substantive offence or series of offences by two or more people acting in concert, but is limited to evidence which shows the involvement of each accused in the commission of the offence or offences. It cannot be extended to cases where individual defendants are charged with a number of separate substantive offences and the terms of a common enterprise are not proved or are ill-defined."

The second and third exceptions are of interest in regard to the appeal before the House. I am not saying that these exceptions are directly relevant. But the account of roles of the wife determined to kill her husband, the hired gunman, and the middleman, which the jury must have accepted are uncommonly close to those exceptions.