R v Blastland
| Jurisdiction | UK Non-devolved |
| Judge | Lord Fraser of Tullybelton,Lord Edmund-Davies,Lord Bridge of Harwich,Lord Brightman,Lord Templeman |
| Judgment Date | 25 July 1985 |
| Judgment citation (vLex) | [1985] UKHL J0725-3 |
| Court | House of Lords |
| Date | 25 July 1985 |
[1985] UKHL J0725-3
Lord Fraser of Tullybelton
Lord Edmund-Davies
Lord Bridge of Harwich
Lord Brightman
Lord Templeman
House of Lords
My Lords,
I have felt more doubt about this appeal than my noble and learned friends, but I have eventually found the reasoning in the speech of my noble and learned friend, Lord Bridge of Harwich, irresistible. I accordingly agree with him that the appeal should be dismissed.
My Lords,
For the reasons advanced in the speech prepared by my noble and learned friend, Lord Bridge of Harwich, which I gratefully adopt, I concur in holding that the learned trial judge and members of the Court of Appeal rightly directed themselves and that the appeal should accordingly be dismissed.
My Lords,
At about 6 p.m. on Thursday, 9 December 1982, a 12-year-old boy named Karl Fletcher left his home in Gainsborough after an argument with his mother. Later in the evening his mother became alarmed when he did not return and set out to look for him without success. Shortly before midnight she reported to the police that her son was missing. Karl's body was found the following morning on some open ground about half a mile from his home lying face down in a drainage ditch. He had been forcibly buggered and strangled with a scarf. His death by strangulation occurred on the Thursday evening, but the precise time of it was not established by the evidence.
On 4 October 1983 the appellant was arraigned before Bush J. and a jury in the Crown Court at Lincoln on an indictment charging him with both buggery and murder. After a trial which lasted seven days he was convicted on both counts.
The prosecution case against the appellant was an extremely cogent one, but since its details are not germane to any issue arising in the present appeal it would serve no useful purpose to summarise it here. The appellant's own evidence, shortly stated, was that he admitted meeting the deceased boy at some time between 6 and 7 p.m. on the Thursday not far from where the body was later found. He engaged in homosexual activity with him, to which, according to the appellant, the boy consented in return for a money payment. He first attempted to bugger the boy but, when the boy complained of pain, desisted before achieving penetration. He then had oral intercourse with the boy. Very shortly after this the appellant said he saw another man nearby who, inferentially, could have seen what had happened between the boy and the appellant. Fearing that he had been observed committing a serious offence, the appellant panicked, ran away, and returned to his home. He gave a description of the other man which corresponded closely to a man who is, in a sense, the central character in this appeal and whom it will be appropriate, in the circumstances, to identify simply by his Christian name as Mark.
If the appellant's account was true, then Karl Fletcher, at some time in the evening after his encounter with the appellant, must have been buggered and murdered by another man. A central feature of the presentation of the appellant's defence at the trial was to invite the jury to draw the inference that that other man was Mark. It was certainly known to the jury that Mark had come under suspicion after Karl's murder, since there was a formal admission by the prosecution in the following terms:
"Mark was fully investigated by the police after the death of Karl Fletcher, including medical examination and submission of his clothing for forensic examination."
The medical examination revealed an injury to Mark's penis, the significance of which was canvassed with the medical experts who gave evidence. The forensic examination disclosed nothing to connect Mark with Karl. In addition there were formal admissions by the prosecution showing Mark to have been known to engage in the past in homosexual activities with adults but not with children. There were also both formal admissions and evidence relating to Mark's movements on the evening of Karl's murder. All this was, I have no doubt, properly put before the jury as relevant and admissible material which they could be invited to weigh in the scales against the powerful case adduced for the Crown in deciding whether it might have been Mark, not the appellant, who murdered Karl Fletcher.
What the jury did not know was that, in a series of interviews with police officers, Mark had successively made and withdrawn admissions of his own guilt of the offences with which the appellant stood charged. Your Lordships are not in any way concerned with the reasons which prompted those responsible for investigating these horrifying crimes to conclude that Mark's admissions were untrue. Indeed, for a reason which will shortly become apparent, the detailed evidence of what was said at these interviews has not been included in the material put before your Lordships. At the trial counsel for the appellant sought to put the material in these interviews before the jury, first by an application to call a police officer and elicit from him directly what was said, secondly by an application to call Mark, treat him as a hostile witness, and cross-examine him about what he had said at the interviews. Both applications were refused by Bush J.
The prosecution had very properly made available to the defence the statements of a number of witnesses to the effect that Mark had said to them that a little boy had been murdered. A woman named June, with whom Mark was living, was alleged by another woman to have told her that Mark came home about 8 p.m. on the Thursday evening of the murder, that at the time Mark was shaking like a leaf, covered in mud, and wet from his knees downwards, and that he then told her that a young boy had been murdered. Other witnesses said they had been told by Mark on the Friday morning before the finding of Karl Fletcher's body that a boy had been murdered, and according to one witness that the murdered boy lived at an address which, though not in fact the address of the Fletcher family, was only a short distance from it in an adjoining street. The defence wished to call the woman, June, and the other witnesses mentioned in order to elicit from them what Mark had said about the boy's murder. The judge ruled that this evidence, like the evidence of what Mark had said to the police, would be hearsay and therefore inadmissible.
The appellant appealed against his conviction on the ground that the judge had been wrong to exclude the evidence both of what Mark said in the police interviews and of what he said on Thursday evening and Friday morning, 9 and 10 December 1982, about the murder of a boy. No complaint was made of the judge's refusal to allow the defence to call Mark and treat him as hostile. The appeal was dismissed by the Court of Appeal (Criminal Division) (O'Connor LJ., Macpherson and Evans JJ.) who refused leave to appeal, but certified that two points of law of general public importance were involved in their decision as follows:
"(1) 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 ( Reg. v. Turner (Bryan) (1975) 61 Cr.App.R. 67). (2) Whether evidence of words spoken by a third party who is not called as a witness is hearsay evidence if it is advanced as evidence of the fact that the words were spoken and so as to indicate the state of knowledge of the person speaking the words if the inference to be drawn from such words is that the person speaking them is or may be guilty of the offence with which the defendant is charged."
On petition to your Lordships, leave to appeal was refused on the first of these two points, but granted on the second.
It has been recently pointed out that the refusal by an Appeal Committee of the House of a petition for leave to appeal is not the equivalent of an authoritative decision of the House affirming the decision of the Court of Appeal from which leave to appeal was sought, since leave may be refused for a variety of reasons; see In re Wilson [1985] 2 W.L.R. 694, per Lord Roskill, at p. 698. However, the decision of the Court of Appeal (Criminal Division) in Reg. v. Turner (Bryan), which an appeal on the first certified point would call in question, was itself based on the majority decision of your Lordships' House in Myers v. Director of Public Prosecutions [1965] A.C. 1001, which established the principle, never since challenged, that it is for the legislature, not the judiciary, to create new exceptions to the hearsay rule. 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.
However that may be, leave having been granted on the second certified point only, counsel before your Lordships was constrained to present the appeal on the basis, not only that what Mark said in the police interviews was rightly excluded, but also that, if Mark had said in terms to any of the witnesses to whom he spoke about the murder on Thursday evening and Friday morning that he had himself committed it, such evidence would equally have been inadmissible as hearsay.
The argument most attractively presented to us by Mr. Judge may, I hope without doing him injustice, be summarised as follows. The authorities relating to the application of the hearsay rule contrast two distinct situations. In the first situation evidence is sought to be adduced of a statement made to a witness in order to prove the truth of the facts stated. This is hearsay evidence and must be excluded, unless it can be...
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Subject Index
.... . . 287R vBilal [2005] EWCACrim 1555 . . . . . . . . . . . 202R vBiniaris [2000] 1SCR 381 . . . . . . . . . . . . . . . 163R vBlastland [1986] 1AC 41. . . . . . . . . . . . . . . . 279R vBonny [2005] EWCACrim 1937 . . . . . . . . .281R v Bowman (Thomas) [2006] EWCA Crim 417. . . . . . . .......
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Subject Index
...213, 214, 215R v Birks [2003] 2 Cr App R R 7 ..................248R v Birmingham [1992] Crim LR 117 ....... 162R v Blastland [1986] AC 41 ............ 111, 121– 5R v Borde [2003] OJ No. 354, 8 CR (6th) 203.................................................................... 100R v Bowden [20......