R v Hayter (Paul Ali)
| Jurisdiction | UK Non-devolved |
| Judge | LORD BINGHAM OF CORNHILL,LORD STEYN,LORD RODGER OF EARLSFERRY,LORD CARSWELL,LORD BROWN OF EATON-UNDER-HEYWOOD |
| Judgment Date | 03 February 2005 |
| Neutral Citation | [2005] UKHL 6 |
| Date | 03 February 2005 |
| Court | House of Lords |
(On Appeal from the Court of Appeal (Criminal Division))
[2005] UKHL 6
HOUSE OF LORDS
My Lords,
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.
I. The case in a nutshell
My Lords,
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.
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.
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.
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
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
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.
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.
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
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
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...
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Subject Index
...08R v Harry (1986) 86 Cr App R 105 ............. 116R v Hasan [2005] UKHL 22 ................ 225, 226R v Hayter [2005] UKHL 6 ............................22 4R v Hem (1989) 72 CR (3d) 233 (BC Co Ct) .. .10 3R v Hoare and Pierce [2004] EWCA Crim 784................................................
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