Regina v Hayter (Appellant) (On Appeal from the Court of Appeal (Criminal Division))
75. If it is suggested that one can pray in aid the concept of conditional relevance to make it possible to take into account a co-defendant's confession, I must respectfully disagree. That concept relates to the dynamics of a criminal trial, as Lord Steyn has said, but I do not consider that it can plug the gap in the evidence against Hayter which existed at the direction stage. Evidence which is admitted as being conditionally relevant will have its relevance confirmed when a later piece of evidence is adduced in the course of the trial. The use of the concept for that purpose appears more clearly from the brief discussion in Phipson on Evidence, 15th ed (1999) para 6-10. But at the direction stage one must consider the evidence as it stands, on the assumption that no further evidence will be adduced. That being so, there is nothing to come which will make the disputed piece of evidence relevant and admissible if it is not already so. The only factor which would make it admissible is the possibility that the jury would decide to convict Ryan on the evidence of his confession and then use that finding to fill the gap in the evidence against Hayter, a course which, for the reasons I have given, I consider to be incorrect.
76. Having decided the matter in issue in this appeal on principle for the reasons which I have set out, I do not find it necessary to enter into any extended discussion of the previous cases cited by the Court of Appeal. I would observe, however, that the issue in R v Spinks (1982) 74 Cr App R 263 was the same as that which we have had to consider in the present case. In my opinion the conclusion should be the same if Spinks' case were tried today, notwithstanding the enactment of section 74 of PACE, and the decision remains correct. In R v Rhodes (1959) 44 Cr App R 23 the case went to the jury and the issue was not the sufficiency of the evidence at direction stage. The Court of Appeal held that the judge's statement to the jury that they could take into account their finding of guilt against one defendant M, which had been based largely on a confession by him, when considering the case against the other defendant R, nullified his previous correct direction that M's confession was not evidence against R. It is suggested that this case would be decided differently since the enactment of section 74. I should prefer to reserve my opinion on that proposition for decision if it becomes relevant in a future case. The issues in R v Hickey and others (1997, unreported) are so far from those in the present appeal that I do not derive material assistance from the decision.
77. For the reasons which I have set out and for those given by Lord Rodger of Earlsferry I would allow the appeal and quash the appellant's conviction. I am conscious that adherence to the accepted principles of the common law governing the admission and exclusion of evidence in criminal trials may well result in the acquittal of a defendant against whom the evidence, if admitted, would make a strong case for his guilt. The Crown did, however, have the option of proceeding against the appellant in a separate trial, which might have enabled them to present admissible evidence which was sufficient to ground a conviction. They did not do so, and I am of the clear view that to modify the common law rule to fill the gap left in the evidence against the appellant would be an undesirable erosion of accepted principles.
LORD BROWN OF EATON-UNDER-HEYWOOD
78. I am grateful to my noble and learned friends Lord Steyn and Lord Rodger of Earlsferry for their full exposition of the facts of this appeal and shall accordingly confine myself to a brief consideration of the point of law arising for decision, adopting for this purpose the shorthand used in the certified questions. These are as follows:
79. Realistically there is but a single issue for determination since the answer to both questions must inevitably be the same. If the answer to question one is "no", then plainly B would have no case to answer; so much, indeed, is implicit in the words "if so" introducing question two. If, however, the answer to question one is in the affirmative then logically there would be a case to answer at the close of the prosecution's case since ex hypothesi on the evidence already adduced the jury could properly decide first that A was guilty and then that A's guilt, coupled with such other evidence as went to incriminate B, proved B guilty too.
80. Whilst, therefore, in my judgment everything turns on question one and no separate consideration is required of question two, the very formulation of question two does serve to demonstrate, as I myself believe to be the case, that the Crown's argument (and, indeed, the rulings in this case both by the Recorder of London and by the Court of Appeal) necessarily involves some modification of what Russell J in R v Spinks (1981) 74 Cr App R 263, 266 called "the universal rule which excludes out of court admissions being used to provide evidence against a co-accused, whether indicted jointly or separately". The Crown's argument requires that A's out of court admissions are used at the halfway stage to provide evidence against B and that, to my mind, continues to be the position even once the jury have relied on those admissions to convict A. Evidence inadmissible against B is not suddenly transformed by that finding (of A's guilt) into admissible evidence: if the Crown's argument is soundly based, the admissions must (albeit only in a closely circumscribed way) have been admissible against B all along. This too, I may note, appears to have been Professor Birch's view when commenting on the Court of Appeal's decision in the Criminal Law Review - (2003) Crim LR 887-888:
81. The critical question for your Lordships is whether this modest "erosion" of the basic principle ought properly to be countenanced. (The "impressive array of common law authorities" of which Professor Birch speaks is presumably a reference to the three decisions discussed by the Court of Appeal below: R v Rhodes (1959) 44 Crim App R 23, R v Spinks (1981) 74 Crim App R 263 and R v Hickey and others (unreported, transcript dated 30 July 1997.)) In answering this question one's starting point must surely be the supposed rationale of the basic rule itself. Why is it "the universal rule" that out of court admissions made by A in the absence of B are admissible only against A? The answer to this question is, of course, the hearsay rule itself: the admission of A's confession even against A himself is itself an exception to that rule. What, therefore, one asks, is the explanation for this exception?
82. To my mind there can be only one rational answer to this question: admissions made by A are admissible against him for the obvious reason that he would be unlikely to have made them unless they were true. Subject always to the safeguards provided for by section 76 (2) of the Police and Criminal Evidence Act 1984 (PACE)which excludes confessions obtained oppressively or otherwise so as render them unreliablesuch admissions are seen to be cogently, indeed powerfully, probative of the case against A. Why, then, should not such admissions be admissible too against A's co-accused B? The conventional answer to this question is that they were not made in B's presence so that B had no opportunity to deny them all the time they were made. Routinely juries are directed:
83. I confess, however, to having always thought this direction a hollow one. Why would it be "unfair", let alone "obviously unfair", to regard A's confession of his guilt as evidence (so far as it goes) also against B just because B was not there at the time? Is it really to be supposed that B, had he been there, would have denied it? And even if he had been there and denied it, how would that materially have assisted his case? Why should not the jury be directed instead simply to assume in B's favour that, had he been present when A made his admission, he would have resolutely denied it if and insofar as it might otherwise have been thought to constitute evidence against him?
84. Let me make it absolutely plain that in everything I have said thus far I have been assuming that A's confession is directed solely towards incriminating himself and that, whilst of course it tends to establish A's guilt, it says nothing directly implicating B. In other words it is incriminatory against B only insofar as the fact of A's guilt of itself helps to establish B's guilt (perhaps because, as in Rhodes, A and B had been in each other's company at the time of the offence or because, as in Spinks, it was necessary to prove that A had committed an arrestable offence, or for whatever other reason). I have assumed, in Professor Birch's words, that "proof of A's guilt [is] a fundamental building block in the prosecution case against B", and that A's confession goes no further than this.
85. I understand that others of your Lordships are troubled by this assumption; it is, indeed, suggested that there is no relevant difference whatever between those parts of A's admissions which refer to his own actings and those parts which refer to the involvement in the offence of B himself. This I cannot accept: rather there seems to me a critical distinction between the two. I readily acknowledge that those parts of A's confession which directly implicate B ought strictly and for all purposes to be excluded from the jury's consideration of the case against B. But the reason for this is because those parts of A's confession which directly implicate B are not admissions against A's interest at all and so are materially less likely to be true. The objection to their admissibility against B is less, therefore, that they are hearsay than that there is a real risk that A will have had his own motives, and not merely a wish to clear his conscience, for casting blame on B.
86. With these thoughts in mind let me return to the certified questions. It is important in addressing them to recognise that the effect of the judgment below is distinctly limited. It is not proposed to admit A's confession as evidence against B for all purposes, but only subject to two conditions: first, that the jury are sufficiently sure of its truthfulness to decide that on that basis alone they can safely convict A; and secondly, that the jury are expressly directed that when deciding the case against B they must disregard entirely everything said out of court by A which might otherwise be thought to incriminate B. I acknowledge, of course, that the jury, in deciding at the first stage to convict A on the basis of his own out of court admissions, will already have had regard to that evidence for that purpose when they then come to use A's conviction as itself a building-block in the case against B. But by that second stage of the jury's deliberations A's out of court admissions will have been in effect subsumed within their finding of guilt against A.
87. What, then, apart from an unswerving adherence to the hearsay rule in its purest and most absolute form, are the objections to using a co-defendant's admissions in this carefully and narrowly circumscribed way? It is suggested that the jury will be unable to disentangle those parts of A's out of court admissions which go only to implicate A himself in the events from those which go also to incriminate B. But is this really any more difficult for the jury to follow than the basic direction that A's out of court admissions are evidence against A but not against B? And consider this further point. It is implicit in the appellant's argument that, if the case against A consists not merely in his own out of court admissions but also of other evidence (perhaps fingerprint or identification evidence), then the jury would have to be directed that they could use their finding of guilt against A as a building- block in the case against B, but before doing so they would have to be sure that they would still have found A guilty even without the evidence of his out of court admissions. Now that, one might think, really would puzzle the jury.
88. That indeed to my mind illustrates the intrinsically unsatisfactory nature of the appellant's case. If, as I understand to be common ground, there is no good reason why A's guilt should not ordinarily be regarded by the jury as a fact capable of being used evidentially against B (its relevance, of course, being dependent always upon the particular issues arising in B's case), why should it make the least difference whether A's guilt is established by his own out of court admissions or by eyewitness, fingerprint, DNA, circumstantial or any other sort of evidence, or, indeed, by any combination of these different sorts of evidence?
89. As it seems to me the appellant offers no satisfactory answer to that question. His only answer, indeed, is to invoke the hearsay rule: all other forms of evidence, points out Mr Kelsey Fry QC, are direct evidence adduced at the trial and admissible against all defendants; the evidence of A's out of court admissions is by contrast adducible only as an exception to the hearsay rule and only against A. Mr Kelsey Fry unsurprisingly disavows any claim to commonsense or justice in support of his argument. It depends, he acknowledges, entirely upon a strict adherence to a long established rule which, he submits, only Parliament can now modify.
90. Although, in common with the Court of Appeal, I have not found this an easy point, I conclude that Mr Kelsey Fry's submission should be rejected. It is now twenty years since section 74 of PACE was enacted and with it the prosecution's right to adduce in evidence against an accused another person's prior conviction. True it is that section 74 has no direct application to a case like the present where both accused stand trial together. But it is hardly to be thought that Parliament, had it turned its mind to the comparatively rare case like the present where the question arises of using evidentially against B the jury's already formed conclusion that A is guilty, would have proposed a different approach. There is no logical reason why it should have done so, but rather every reason why it would have legislated for a similar approach. After all, as Professor Birch points out, in a joint trial B is in a better position to challenge whatever evidence points to A's guilt than if A had already been convicted at a previous trial. Moreover by the same token that under section 74 another person's conviction is admissible against the secondary accused irrespective of the nature of the evidence on which that conviction had been basedwhether identification evidence, out of court admissions or even, indeed, the principal defendant's plea of guilty at trialso too, as already suggested, the particular evidential basis on which the jury find A guilty should equally make no difference merely because, for obvious good reason, the two defendants are tried jointly.