Regina v Hayter (Appellant) (On Appeal from the Court of Appeal (Criminal Division))
26. On this ground too I would reject the primary submission of counsel for Hayter.
XI. The alternative argument
27. In the alternative counsel for Hayter submitted that, even if a jury's finding of guilt based upon one defendant's out of court confession can, once reached, add to an existing case against a co-accused, it cannot contribute to the case against that co-accused at the close of the prosecution case. The argument is that at that stage of proceedings a trial judge must examine the evidence admissible in the case of each defendant and determine whether in each case that evidence is such that a properly directed jury could convict. The fact that the evidence against one may or may not be added to later in the case cannot, it was submitted, affect the decision as to whether there is a case to answer at the close of the prosecution evidence.
28. This submission ignores the dynamics of a criminal trial by a judge and jury. It loses sight of the necessity for a judge sometimes to make conditional rulings on issues or the relevance or admissibility of evidence. Cross and Tapper On Evidence, 10th ed., 2004, explain [at 79]:
By analogy in the present case the judge was entitled to make the conditional rulings already described.
29. The alternative argument of counsel for Hayter must be rejected.
30. It follows that I am in agreement with the decisions and reasoning of the Recorder of London and the Court of Appeal.
31. For the reasons I have given, and the reasons given by my noble and learned friend Lord Brown of Eaton-Under-Heywood in his opinion, I would dismiss the appeal. The answers to the certified questions appear sufficiently from the majority opinions delivered today.
LORD RODGER OF EARLSFERRY
32. After trial at the Central Criminal Court, the appellant, Paul Hayter, and his two co-defendants, Angela Bristow and Raymond Ryan, were convicted of murdering Bristow's husband, Mario Commatteo. In brief, the Crown case was that Bristow procured the appellant to arrange for a hitman to kill her husband. The appellant in turn recruited Ryan whom Bristow paid through the appellant. On 30 March 2000 Ryan shot Mr Commatteo at point-blank range with a twelve-bore shotgun, as he was leaving for work.
33. To convict Ryan, all that the Crown had to prove was that he was the person who shot the deceased in this way. To convict the appellant, the Crown had to prove that he procured Ryan to kill the deceased, that he did so with the intention of bringing about the deceased's death, and that Ryan killed the deceased. The only evidence that identified Ryan as the killer came from his girlfriend, Vanessa Salter, who said that, at times when the appellant was not present, Ryan told her that he had shot the deceased. At the close of the Crown case, counsel for the appellant submitted that he had no case to answer, on the ground that Vanessa Salter's evidence of Ryan's confession was admissible only against Ryan and not against the appellant. Therefore, the Crown had not led evidence capable, if accepted, of proving against the appellant that Ryan had killed the deceased. The late Recorder of London rejected that submission. He held:
The Recorder subsequently directed the jury in similar terms. The appellant appealed against his conviction on the ground that the Recorder had erred in rejecting the submission of no case to answer. Describing the point as "short but difficult", the Court of Criminal Appeal upheld the Recorder's ruling and dismissed the appeal. In my view the point is short but easy and the appeal should be allowed.
34. In the witness box Vanessa Salter spoke to being present at meetings between Ryan and the appellant, to the appellant telephoning to speak to Ryan and to the appellant having had money for Ryan on one occasion. All this was primary evidence which was admissible against the appellant. But, as I have indicated, she also gave certain hearsay evidence. She said that Ryan told her that the appellant had asked him if knew anyone who could kill the deceased. Ryan also told her that he was going to ask Bristow for more money through the appellant and that he had told the appellant that he had not been paid enough. At the hearing of the appeal, Mr Dennis, who appeared for the Crown, seemed to wish to segregate these elements from the rest of Ryan's story because they related specifically to the appellant. As I understood counsel's approach, he considered that these elements, but only these elements, could not be used as any part of the Crown case against the appellant.
35. The defendants were tried together. This was clearly the best course to adopt in the interests of justice, because it saved time and resources and also eliminated the risk of different juries returning inconsistent verdicts. Nevertheless, the defendants could have been tried separately and if, for example, one of them had been taken ill, this might well have been the appropriate course to follow. Whether the defendants are tried together or separately, however, the general law of evidence is the same and what the Crown have to prove against each of the defendants also remains the same. There are, in effect, three separate trials and the jury must consider the case against each of the defendants separately.
36. Counsel for the Crown fastened on one hypothetical sequence of events. Suppose, he said, that Ryan had been tried first and, on the basis of his confession to Valerie Salter, the jury had convicted him of murdering the deceased. Then section 74(1) of the Police and Criminal Evidence Act 1984 ("PACE") would have come into play. Section 74(1) provides:
At the subsequent trial of the appellant, the fact that Ryan had been convicted of murdering the deceased would have been admissible for the purpose of proving that Ryan shot him. Mr Kelsey-Fry QC conceded that this was indeed the position and that nothing in section 78(2) would have entitled the judge in the appellant's trial to exclude that evidence on the ground that the conviction had been based on the evidence of Ryan's confession, which would not have been admissible against the appellant. Mr Dennis argued that, since the jury could have taken account of Ryan's conviction if the appellant had been tried after Ryan was convicted, it was only sensible for the jury in the joint trial of the defendants to be able to use their conclusion, that Ryan was guilty of murdering the deceased, in considering the case against the appellant.
37. As Mr Kelsey-Fry pointed out, if the Crown had wanted to take advantage of section 74(1), they could have proceeded against Ryan first and then, if he had been convicted, they could have used the conviction against the appellant. Naturally, that advantage to the Crown would have been purchased at the expense of the advantages of a joint trial. As a matter of fact, however, Ryan was not tried first and the three defendants were tried together. So the proper comparison is between the position of the appellant in the joint trial of the defendants and his position if he had been tried alone, without either of the others having been tried and convicted.
38. In that situation, would the Crown have been able to lead Vanessa Salter's evidence of what Ryan told her? The answer is plainly No. This is not because her evidence would have been irrelevant: on the contrary, it would have been highly relevant to the proof of one of the essentials of the Crown case against the appellant, viz, that Ryan had killed the deceased. Her evidence would none the less have been inadmissible because it would have been pure hearsay, not falling within any of the recognised exceptions to the rule: she would have been speaking to what someone else, Ryan, told her about killing the deceased. If the Crown had wanted to use Ryan to prove that he killed the deceased, they would have had to lead Ryan himself as a witness. Cf HM Advocate v Kemp (1891) 3 White 17. In the absence of any undertaking by the Director of Public Prosecutions not to prosecute him for the killing (which would have been unthinkable), the judge would have had to tell Ryan that he did not require to answer any question that tended to incriminate him. Naturally, in those circumstances he would have been extremely unlikely to confess to the murder and so ensure his own conviction in his subsequent trial for murder. But if, by any chance, Ryan had confessed in the witness box, his evidence would have been subject to challenge by the appellant and would have been admissible against him. Similarly, and consistently, any confession which Ryan made when giving evidence as a co-defendant in the joint trial would have been subject to challenge by the appellant and admissible against him.
39. Therefore, the only reason why the Crown could lead Vanessa Salter to speak to Ryan's confession at the joint trial was because Ryan was one of the defendants and so, as part of their case against him, the Crown could lead her evidence of his confession, as an admission against interest, to prove the facts stated by him. But nothing in that confession formed any part of the evidence in the case against the appellant. If this were not the position, evidence which would have been inadmissible against the appellant if he had been tried alone would become admissible against him, simply because he was being tried along with Ryan. Joint trials conducted on that basis would be prejudicial to the interests of the defendants and so would be resisted, quite legitimately.
40. Since it would not have been possible for the Crown to lead Vanessa Salter's evidence of Ryan's confession if the appellant had been tried alone, in such a trial the jury could never have reached a conclusion, on the basis of that evidence, that Ryan shot the deceased. The Crown concede that there is no other evidence showing that Ryan was the killer. It follows that, in any trial of the appellant alone, the judge would have had to sustain a submission of no case to answer since, taking the prosecution evidence at its highest, the Crown could not have proved one of the essential elements in the case against the appellant. Again, that must also be the position if the appellant happens to be tried along with Ryan as a co-defendant.
41. As I mentioned above, at times during the hearing Mr Dennis seemed to draw a distinction between those parts of Ryan's confession which referred to his own actions and those parts which referred to the involvement of the appellant. The supposition seemed to be that, somehow, what Ryan said about his own acts did not incriminate the appellant, whereas what he said about the appellant did. So the former could be admitted, the latter not. The Recorder also seems to have entertained some such view since, in going through Vanessa Salter's evidence during his summing up, it was only when he came to the passage about what happened between Ryan and the appellant at Squeaky Cleans that he warned the jury that this was evidence "in Ryan's case and not evidence in the case of the other two."
42. This approach rests on a fundamental error. In a case like the present where, in order to secure the conviction of the appellant, the Crown had to prove that Ryan killed the deceased, there is no relevant difference whatever between the two aspects of what Ryan said. If admissible, everything which he said about killing the deceased would have incriminated the appellant, in the sense of proving a vital part of the Crown's case against him, viz that Ryan killed the deceased. For that reason, all of Vanessa Salter's evidence of his confessions, made when the appellant was not present to challenge them, if he saw fit, was not admissible against the appellant. At the joint trial of the defendants, however, the Recorder had to allow the Crown to lead Vanessa Salter's evidence of Ryan's confession to killing the deceased, because it formed a vital part of the admissible evidence in their case against Ryan. But, when the Recorder came to consider the submission of no case to answer, he should have excluded all of that evidence from the body of evidence available against the appellant. If he had done so, he would have had to sustain the submission and acquit the appellant.
43. The error in the opposite approach is patent and, as Mr Kelsey-Fry perceived, it hardly needs to be demonstrated by reference to authority. It so happens, however, that the point is covered by the decision of the Court of Criminal Appeal (Watkins LJ, Kilner Brown and Russell JJ) in R v Spinks (1981) 74 Cr App R 23. Spinks was charged with a contravention of section 4(1) of the Criminal Law Act 1967 which makes it an offence for anyone, knowing or believing that someone has committed an arrestable offence, to do any act with intent to impede his apprehension or prosecution. The allegation against Spinks was that he had so acted in relation to a Mr Fairey. The Court held that, in order to prove their case against Spinks, the Crown had to prove that Fairey had committed an arrestable offence. For this purpose, the Crown relied on evidence from police officers of a statement made by Fairey, in the absence of the defendant, in which he said that he had stabbed someone. A submission of no case to answer was rejected and Spinks was convicted. The Court allowed his appeal. In the words of Russell J, at p 266:
Russell J went on to say:
It is right to notice that, although in reaching his decision Russell J said that the fallacy of the Crown's position could be demonstrated in a number of ways, the only point he actually made was that, if Fairey had been tried separately and convicted, the Crown could not have relied on his conviction to prove the first ingredient in the charge against Spinks. That was a correct statement of the law at the time, but the position was changed by section 74(1) of PACE. It follows that the decision can no longer be supported on that particular ground; but it is more than amply supported by the more fundamental considerations to which I have already referred. Statute has not impinged on this aspect of the law relating to hearsay evidence at trials and the "universal rule", to which Russell J referred, remains as much part of the law today as it did in 1981.
44. If - which I doubt - any further authority is needed, it is readily to be found north of the border. Sir Gerald Gordon QC, the distinguished editor of Renton & Brown's Criminal Procedure According to the Law of Scotland 6th ed (1996), summarises the Scots law, at para 24-132: "A statement made by one co-accused outwith the presence of another is not evidence against that other, whether or not it directly incriminates him" (emphasis added). In support of this proposition, Sir Gerald relies inter alia on McIntosh v HM Advocate 1986 SC 169. The appellant was convicted of having supplied cannabis to a named individual at a house in Paisley. The Crown case, which the jury accepted, was that the appellant had acted in concert with his co-accused Deborah Campbell who had made the actual supply. There was sufficient evidence against Deborah Campbell to prove that she had made the supply in question. It came from two sources: a statement that she had made to the police, admitting the supply, and the eye-witness testimony of her sister. The sister's evidence was available against the appellant, but the Appeal Court quashed the appellant's conviction on the ground that the co-accused's statement was not evidence against the appellant and therefore the sister's evidence was not corroborated, as it requires to be in Scots law. The Lord Justice Clerk (Ross) said, at p 174:
For present purposes, what matters is that the co-accused's statement made no mention of the appellant, but was none the less not admissible against him to prove the supply with which he was charged.
45. Similarly, in Montes v HM Advocate 1990 SCCR 645, the appellant was convicted of being knowingly concerned in the fraudulent evasion of a prohibition on the importation of cocaine by importing a quantity of cocaine on a ship which docked at Greenock. The trial judge directed the jury that, in considering the case against the appellant, they were entitled to have regard to a statement by one of his co-accused, Jensen, to Customs and Excise officers, admitting that cocaine found in his possession had been put on the ship in Colombia. The appeal court held that this had been a misdirection. Lord Justice Clerk Ross observed, at p 666:
The approach of the trial judge, which the appeal court rejected, resembled the approach of the Recorder of London in this case. As a matter of principle, it should be rejected in English law too.
46. My Lords, in my view, these considerations are sufficient to show that the decision of the Recorder to reject the appellant's submission of no case to answer was wrong in law and that this appeal should be allowed. Out of deference to the Recorder and the Court of Criminal Appeal, and since the majority of your Lordships take a different view, it may, however, be worth exploring some of the implications of that view.
47. In their written case counsel for the Crown put their argument in this form:
The proposition is stated in terms of the jury first finding A guilty on the admissible evidence against him and then using "the fact of that guilt" in considering whether the case has been proved against B. That can only mean that "the fact of [A's] guilt" is part of the evidence which the jury are entitled to take into account when deciding whether the Crown have proved their case against B. In the present case, for example, if the jury found, on the basis of Vanessa Salter's evidence of Ryan's confession - which was not admissible against the appellant - that Ryan killed the deceased, or, in other words, that Ryan was guilty of killing the deceased, then the "fact of Ryan's guilt" was part of the evidence which the jury could take into account when deciding whether the prosecution had proved their case against the appellant. In 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.
48. When the jury considered the case against Ryan, they were entitled to have regard to all aspects of his confession, including what he said about his contacts with the appellant. Having considered that evidence, in all probability they concluded, not simply that Ryan shot the deceased, but that he did so after the appellant paid him sums of money which Bristow had passed to the appellant for that purpose. After all, on the evidence there was no other reason for Ryan to kill the deceased. If, then, the jury were entitled to turn their conclusion from Ryan's confession into a fact that they could use against the appellant, there seems no reason in principle why they should not have used the whole of that conclusion, rather than just the "fact" that Ryan killed the deceased. If, therefore, in reaching their verdict, they concluded that the appellant passed money to Ryan to pay for the killing, why should that "fact" also not have been available for their consideration of the case against the appellant? From the jury's point of view, the one is just as much a fact as the other. The Crown say, however, that the jury cannot do this. On their approach, the jury's supposed powers are incoherently selective.
49. Suppose that A and B are charged with murdering someone by stabbing him. There is evidence that they were together, not far from the locus, not long before the incident. A gives a statement to the police in which he says that, just before the fight began, B gave him a knife which he used to stab the deceased. At trial, A goes back on his statement and both A and B say that they had nothing to do with the stabbing, but there is evidence that the fingerprints of both A and B were on a knife found at the scene. In considering whether the account given by A in his statement was true, the jury would be entitled to have regard to the fact that the two sets of fingerprints were on the knife, as being consistent with his story that B handed the knife to him and he used it to stab the deceased. Indeed, the corroboration provided by the fingerprint evidence might well be the reason why they accepted that A's confession was true and so decided to find him guilty. If the Crown approach is correct, however, the jury will be told that, if they find the Crown case against A proved, in going on to consider the case against B, they will be entitled to have regard to the fact that his fingerprints, along with those of A, were on a knife found at the scene and to the "fact" that A is guilty of stabbing the deceased. But, at the same time, the judge will have to direct them that, if in reaching their verdict against A, they find that B handed the knife to A shortly before the fight began, they must disregard that fact when considering the case against B. Any reasonable jury would find such a direction not just perplexing but impossible to apply.
50. Counsel for the Crown confined their proposed rule to the situation where the jury find A guilty. But guilt makes no sense as a touchstone for such a rule. Suppose, for instance, that A and B are co-defendants, A being charged with possessing heroin with intent to supply it to another, and B with being concerned in supplying the heroin. The theory of the Crown case is that, when he was arrested, A was a courier taking the heroin from B to a street dealer. There is circumstantial evidence of contacts between A and B, but the only evidence that B gave the parcel containing the heroin to A is in a statement by A to the police. In that statement, A also says that he thought that the parcel contained fake Viagra tablets. In addition the prosecution evidence shows that, when the police opened the parcel in front of him, A appeared to be astonished that it contained heroin powder. The Crown lead the evidence of his mixed statement. A does not give evidence. The jury, having considered A's statement, decide that B did indeed give the parcel of heroin to A to carry to the street dealer and that A was carrying it to the dealer, but acquit A on the ground that he neither knew nor suspected, nor had any reason to suspect, that the parcel contained a controlled drug. Since A is not found guilty, there is no "fact" of guilt which the jury can use against B. But, in any rational world where the kind of rule for which the Crown contend operated, the jury would surely be able to use the "fact" that B gave the parcel of heroin to A in considering whether B was concerned in supplying heroin. A's knowledge or suspicions about the contents of the parcel, and hence his guilt or innocence, are completely irrelevant to this issue.