R v Sharp (Colin)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Mackay of Clashfern,Lord Havers of St Edmundsbury,Lord Keith of Kinkel,Lord Bridge of Harwich,Lord Griffiths |
| Judgment Date | 16 December 1987 |
| Judgment citation (vLex) | [1987] UKHL J1216-3 |
| Date | 16 December 1987 |
| Court | House of Lords |
[1987] UKHL J1216-3
Lord Chancellor
Lord Havers of St. Edmundsbury
Lord Keith of Kinkel
Lord Bridge of Harwich
Lord Griffiths
House of Lords
My Lords,
I have had the advantage in reading in draft the speech to be delivered by my noble and learned friend Lord Havers of St. Edmundsbury. I agree that this appeal should be refused for the reasons which he has given and that the certified question should be answered in the affirmative with the amendments that he has proposed.
I particularly agree with the language used by Lord Lane C.J. in Reg. v. Duncan (1981) 73 Cr.App.R. 359 as a statement of the position to be put before a jury in a case such as this. It has to be borne in mind that the purpose of giving directions to a jury is that they may apply them in reaching their verdict in the particular case. The vast majority of jurors will not have had the experience of studying law and accordingly the concepts to be put before them must in my opinion be capable of reasonably straightforward expression and application if this purpose is to be achieved.
While the argument for the Crown has some appeal to one's sense of logic I would apply to it the words used by Lord Justice-Clerk Thomson in Gillespie v. Macmillan, 1957 J.C. 31, 40:
"If law were an exact science or even a department of logic, there might be something to be said for this argument. By relying on the disparate qualities of space and time the logician can prove that in a race the hare can never overtake the tortoise. But law is a practical affair and has to approach its problems in a mundane common sense way. We cannot expect always to have a tidy and interrelated picture; in real life a surrealistic element is apt to creep in, and the picture, though untidy and unharmonious, may be a picture all the same."
In the present case your Lordships are dealing with a statement which has been admitted in evidence as a whole. Accordingly your Lordships are not called upon to consider whether there are circumstances in which a statement such as this should not be admitted in evidence at all or should be admitted only in part. Where the statement has been admitted as a whole I agree with my noble and learned friend that the weight of authority supports the view taken and expressed so felicitously by Lord Lane C.J. in Duncan. It is a matter of regret that the decision in Duncan does not appear to have been drawn by counsel to the attention of the trial judge in the present case and that he does not seem otherwise to have been aware of it.
My Lords,
The question certified for your Lordships' decision is in the following form:
"Where a statement made to a police officer out of court by a defendant contains both admissions and self-exculpatory parts do the exculpatory parts constitute evidence of the truth of the facts alleged therein?"
The factual background of this appeal can be stated shortly. The defendant, Sharp, was charged with the burglary of a dwelling house. The prosecution evidence was that the owners of the house left it at about 6.30 a.m. on 1 March 1985. At 11.15 a.m. their neighbour heard the burglar alarm ringing in the house. She found the house had been broken into and telephoned the police.
Two detective officers, in a police car, heard of the burglary on their radio and went to investigate. As they drove towards the scene they saw the defendant running in the opposite direction and dressed in a tracksuit. Their suspicions were aroused and they turned and followed him and saw him get into a Cortina motor car parked in a lay-by. The police stopped their car in a lay-by opposite. The defendant appeared to see them and he drove off at high speed. The police followed but after a short distance the defendant turned into a side road and, in effect, gave them the slip. The police drove on, realised eventually what had probably happened, turned round and drove back the way they had come. They then saw the Cortina approaching so they pulled across the road and stopped it. They told the defendant that they were police officers and instructed him to switch off his ignition. He replied abusively and drove away again at speed. The police turned their car and gave chase but they lost track of him. The Cortina was later that day abandoned on a golf course. When it was examined glass particles were found on the driver's seat and, in due course, glass particles were found on the defendant's tracksuit. The forensic evidence was that the glass found in the car and on the tracksuit was indistinguishable from the samples of glass taken from the burgled house.
On 4 March the defendant went voluntarily to the police station and was interviewed. The account he gave to the police may be summarised as follows: he said that he was in the area at the material time and heard the burglar alarm, but gave an innocent explanation for being there. He said that he had been involved in a minor accident and that a small part of his car had dropped off, so he had parked and was running back, giving the appearance of jogging, but in reality looking for that small part which had dropped off his car. He denied he had attempted to escape from the detective officers when they parked on the opposite side of the road from him. He said he did not know they were police officers. He said he did not in fact try to give them the slip by turning down the side road: he had gone down there in order to urinate. Finally, with regard to his driving off again, he said he had reason for doing that, but he was not going to say what it was. He said he had given an explanation to his solicitor.
At his trial the defendant did not give evidence and he was convicted of burglary.
In his summing up the judge treated the defendant's statement as a "mixed statement," that is, a statement that is in part admission and in part exculpatory. He directed the jury that they were entitled to regard that part of the defendant's account in which he said he was in the area at the time of the burglary as an admission and therefore evidence of the fact that he was there, but that the other parts of the statement which explained his reason for being there were exculpatory and therefore were not evidence of the facts related.
The Court of Appeal allowed the appeal and quashed the conviction. They held that the direction to the jury that the exculpatory parts of the statement were not evidence of the truth of the facts there related was contrary to the recent decisions of the Court of Appeal in Reg. v. Duncan, 73 Cr.App.R. 359 and Reg. v. Hamand (1985) 82 Cr.App.R. 65.
In Duncan, Lord Lane C.J. said, at p. 365:
"Where a 'mixed' statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state. Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence."
Commenting upon this passage in Duncan, the Court of Appeal said:
"That passage represented a departure from the approach to mixed statements which had undoubtedly been adopted for many years and may well have created difficulties amongst those judges who are called upon to try criminal cases. Be that as it may, that decision is binding upon this court and it was followed in Reg. v. Hamand, 82 Cr.App.R. 65."
Your Lordships gave leave to appeal in this case because this comment in the judgment of the Court of Appeal might be taken to cast doubt upon the correctness of the decision in Duncan. However, an examination of the authorities shows that the approach in Duncan is of respectable antiquity and that it is only in comparatively modern authorities that it has been questioned. The difference in approach in the authorities is a reflection of the difficulties created in the law of evidence by the hearsay rule and its exceptions.
I accept the definition of the hearsay rule in Cross on Evidence, 6th ed., p. 38:
"an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted."
The rule is so firmly entrenched that the reasons for its adoption are of little more than historical interest but I suspect that the principal reason that led the judges to adopt it many years ago was the fear that juries might give undue weight to evidence the truth of which could not be tested by cross examination, and possibly also the risk of an account becoming distorted as it was passed from one person to another. It is the application of this rule that has led the courts to hold that an exculpatory or, as it is sometimes called, a self-serving statement made by the accused to a third party, usually the police, is not admissible as evidence of the truth of the facts it asserts.
Evidence contained in a confession is however an exception to the hearsay rule and is admissible. The justification for the adoption of the exception was presumably that, provided the accused had not been subjected to any improper pressure, it was so unlikely that he would...
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