Prosecution Appeal (No 2 of 2008) R v Y
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes |
| Judgment Date | 25 January 2008 |
| Neutral Citation | [2008] EWCA Crim 10 |
| Docket Number | Case No: 200800312 B5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 25 January 2008 |
Lord Justice Hughes
Mr Justice Saunders and
Sir Christopher Holland
Case No: 200800312 B5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr B Finucane QC and Mr O Glasgow (instructed by The Crown Prosecution Service) for the Crown
Mr P Griffiths QC and Mr B Evans (instructed by E B R Attridge) for the Respondent
Hearing date: 21 st January 2008
We have all contributed to this judgment.
Summary
In a case of murder where man Y was on trial alone, the Crown applied to the trial Judge to admit hearsay evidence consisting of a confession made by man X, who had subsequently pleaded guilty, which confession implicated the defendant Y. The application was made under s 114(1)(d) Criminal Justice Act 2003. The Judge was persuaded that s 114(1)(d) had no application to a hearsay statement contained in a confession of another person, and accordingly ruled that the Crown's application did not fall to be considered on its merits. Against that ruling, the Crown seeks to bring an interlocutory appeal under s 58 Criminal Justice Act 2003.
Issues before us
There are two issues of law for us:
(a) Can an interlocutory appeal under s 58 be brought when the ruling is as to the admissibility of evidence ? The Defence submit not. We will call that 'the appeal jurisdiction issue'.
(b) If yes, is s 114(1)(d) capable of applying to allow the admission of hearsay material which is contained in a confession by another person or is it excluded by the presence in the Act of s 118(1), paragraph 5 ? We will call that 'the s 114/118 issue'.
Issues not before us.
The man (X) whose confession the Crown wants to prove is not, it is agreed, a co-accused of the Defendant. He and the Defendant are accused of complicity in the same offence, but they do not face trial together, X having pleaded guilty to murder some time ago. Indeed, as it happens, in this case they have never been charged on the same indictment. Moreover, the application to admit X's confession is made by the Crown and not by a co-accused. It follows that s 76A Police and Criminal Evidence Act 1984 has no application and is not in issue before us, as both counsel agree. We are therefore not concerned with the question how far statements associated with a confession are to be regarded as a confession automatically admissible in the hands of a co-accused: see Finch [2007] EWCA Crim 36; [2007] 1 Cr App Rep 33.
Much more significantly, we are not asked to decide whether this hearsay evidence should in fact be admitted. Nor could we decide that question. Because the Judge ruled that s 114(1)(d) was not available, he never got to the merits of the application. He never considered whether it is or is not in the interests of justice that this hearsay should be admitted, in this case where the Crown concedes that, without it, it does not have a prima facie case against the defendant. Since that latter question has not been ruled upon by the trial Judge, no question of an appeal (by either side) against a ruling upon it can yet arise. Moreover we simply do not have the material to decide this question. We have not seen the witness statements comprising the Crown case, or any evidence in this case, except the hearsay statements which are in issue in this interlocutory appeal. We are confined by the appeal before us to the question of principle whether s 114(1)(d) is altogether ruled out because the hearsay is contained in a confession. That is one of the common features of an interlocutory appeal.
The Crown case
In summarising the factual background, we are conscious that we have very limited material. What we set out is the Crown's case only. The murder was the result of a street fight between youths. The deceased was walking with his girlfriend. He was accosted, she says, by two youths. There was an argument, at that stage verbal only. The deceased was left angry, to the extent that he refused to get into a car and leave the street, but rather insisted upon walking on. No-one, however, suggests that he brought about the violence which ensued, as distinct from responding to it.
A little further on, the deceased was confronted again by the same two youths, and this time one of the assailants (said to be Y) went for him with a cosh. The deceased responded and a fight ensued. Y called for X, who was carrying a knife, to stab the deceased. X did so and occasioned fatal wounds.
X was arrested nine days later. He refused, as he was entitled to do, to answer questions in interview by the police. But in due course he pleaded guilty to murder, accepting that he was the second assailant, and that he stabbed the deceased.
Prior to arrest, X is said by a girlfriend (or perhaps ex-girlfriend) to have had two conversations with her about his activities generally and this offence in particular. Her witness statement asserts that in both conversations he admitted to her that he had killed someone. And she asserts that in the second conversation he told her that the other assailant had been Y.
When he pleaded guilty to murder, X advanced a basis, handwritten by counsel or solicitor, though unsigned, which in the end was not put before the Judge. That document adhered substantially to the same account which the girl says he had previously given, namely that he did not start the altercation but intervened at the request of the other, and was the one who stabbed the deceased. In that document, the first assailant is referred to in all places but one as 'the first youth'. However, in one place he is named as Y. A subsequent, second written basis of plea was then prepared, signed by X, and put before the Judge. In that second document, the other assailant is not named.
X had not made any written witness statement. The Judge was told that he had expressed himself unwilling to do so or to give evidence. No attempt had been made to compel him to court as a witness for the Crown.
Y was arrested soon after the event. He made no comment in interview. He was not charged, and still had not been charged when X pleaded guilty. Subsequently he has been charged and sent for trial. The indictment charges murder, and there is a second count of assault occasioning actual bodily harm upon the girlfriend of the deceased as part of the same incident. As we understand it, Y's case is that he denies that he was there at all.
The Crown's hearsay application was to admit under s 114(1)(d):
(i) the statement of the girlfriend; and
(ii) both the written bases of plea.
In this court, the Crown has abandoned (ii). We were told that it has done so because informal enquiries have revealed that the inclusion of the name of Y at one point in the first handwritten basis of plea was made without the instructions of X.
The appeal jurisdiction issue.
Part 9 of the Criminal Justice Act 2003 creates two new species of interlocutory appeal in criminal cases. Both are open only to the Crown. The first is found in sections 58–61; the second in sections 62–67. Both appeals require the leave either of this court or the trial Judge. The first has been brought into effect. The second has not, nor has any date for commencement been set.
The Defendant's submission that there is no right of appeal depends on the argument that this ruling fell within ss 62–67, which have not been brought into force, rather than ss 58—61 which have.
Section 58 provides, so far as material, as follows:
“(1) This section applies where a judge makes a ruling in relation to a trial on indictment at an applicable time and the ruling relates to one or more offences included in the indictment.
(2) The prosecution may appeal in respect of the ruling in accordance with this section.
…..
(7) Where –
(a) the ruling is a ruling that there is no case to answer, and
(b) the prosecution, at the same time that it informs the court in accordance with subsection (4) that it intends to appeal, nominates one or more other rulings which have been made by a judge in relation to the trial on indictment at an applicable time and which relate to the offence or offences which are the subject of the appeal,
that other ruling, or those other rulings, are also to be treated as the subject of the appeal.
(8) The prosecution may not inform the court in accordance with subsection (4) that it intends to appeal unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence if either of the conditions mentioned in subsection (9) is fulfilled.
(9) Those conditions are –
(a) that leave to appeal to the Court of Appeal is not obtained, and
(b) that the appeal is abandoned before it is determined by the Court of Appeal.”
By sections 58(12) and 61(3), which it is not necessary to set out fully, the defendant must be acquitted if leave to appeal is not obtained, the appeal is abandoned, or if it fails when heard. Those provisions mirror the requirement for a section 58 appeal that the Crown must agree formally that if it does not succeed, the acquittal of the defendant must follow. There is also a residual power under s 61(4) and (5) for the Court of Appeal to order acquittal even if the appeal succeeds, but only if it is necessary in the interests of justice to do so.
Section 62, so far as material, provides:
“(1) The prosecution may, in accordance with this section and section 63, appeal in respect of –
(a) a...
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