House of Lords R v Myers

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House of Lords

Session 1997-98Publications on the Internet

Judgments

Judgments - Regina v. Myers

HOUSE OF LORDS

Lord Mustill Lord Slynn of Hadley Lord SteynLord Hope of Craighead Lord Hutton

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

REGINAv.MYERS (APPELLANT)

ON 24th JULY 1997

LORD SLYNN OF HADLEY

My Lords,

The appellant, Melanie Myers, and a man, Clifton Quartey, were charged in one count

in the same indictment with the murder of a mini-cab driver, Muzhar Hussein, on 12 April1994. An application by Myers for a separate trial, opposed by the prosecution and, itseems, also by Quartey, was rejected by the trial judge and on 17 February 1995, Myers

was convicted of murder and Quartey of manslaughter. Myers' appeal to the Court of

Appeal was dismissed but the court gave her leave to appeal to your Lordships' Houseand certified that the following point of law of general public importance was involved inits decision, namely:

"In a joint trial of two defendants A and B, is an out of court confession by A whichexculpates B but which is ruled, or is conceded to be, inadmissible as evidence for theCrown nevertheless admissible at the instigation of B in support of B's defence, or doessuch a confession in all circumstances offend the rule against hearsay?"

The question arose in this way. Myers and Quartey with a young girl were driven in thecab from Wembley to Howarden Hill where Myers had lived and where she was

subsequently arrested. At 9.45 p.m. the driver was found by a couple who lived on the

Howarden Hill estate. He had been stabbed and cut in a number of places. He died laterthat evening in hospital, the cause of death being found on a post-mortem examination tohave been a single stab which entered his heart.

The Crown's case was that this was a joint enterprise each intending to rob the driverand each being prepared to inflict serious injury on him in the course of doing so. Quartey

denied that there was any plan to rob the driver. Myers had ordered the cab and heassumed that she would pay. His evidence was that she put a knife to the driver's throat

in the car and struggled with him when they were both out of the car. He took no part.Myers' case was that it was Quartey's idea to rob the driver and that he pulled a knifewhen they were all out of the car and stabbed the driver.

The central problem in the case arose from the existence of statements made by
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Myers to police officers after her arrest.

During a conversation with one police constable at the police station she is alleged to

have said, "I didn't do it, well I did do it," "I did not mean to stab him, I had the knife andhe kept coming forward at me. We only wanted to take his money and that's all, I

thought it would only have been a G.B.H." When asked, "Did you have the knife?" she

replied, "Yes I had it, I didn't mean to kill him and when I read about it in the paper Icouldn't believe it so I just went to Birmingham out of the way." To three other officers in

a vehicle on the way to the magistrates' court she was alleged to have said, "I reckon I'llget a few years for this." Asked why she replied, "Well I cut him didn't I he wanted to bea fucking hero so I cut him."

It was the possible prejudice which could arise to one or other of the defendants if

these statements were, or were not, allowed in, and the dispute as to how far they were

admissible, which led to the application for separate trials. Albeit recognising the difficultywhich could arise from admitting these statements in one trial the judge was more thansatisfied that he should not order separate trials:

"In any event I cannot think of a case where it would be more important and more appropriate for thetwo defendants to be tried together. The circumstances which I briefly outlined cry out for a joint trial.One jury should determine all issues on all the relevant and available evidence between all threeparties; the Crown and the two defendants."

That decision was challenged on appeal. The Court of Appeal [1996] 2 Cr.App.R. 335,339 referred to what was said in Reg. v. Lake (1976) 64 Cr.App.R. 172, 175 namely:

". . . a joint offence can properly be tried jointly, even though this will involve inadmissible evidencebeing given before the jury and the possible prejudice which may result from that."

They took the view that the exercise of the trial judge's discretion could on this questionnot be faulted--he had looked at the competing interests of both defendants in reaching

his decision. There is no appeal to your Lordships directly against that decision but theadmissibility of Myers' statements to the police officers in the joint trial remains in issue.

Although the prosecution relied on a confession, in similar terms to those made to thepolice officers, which was made to one Charles Williams, the prosecution did not seek to

put before the jury either of the statements made to the police officers because there had

been breaches of the Code of Practice issued pursuant to sections 66 and 67 of the Policeand Criminal Evidence Act 1984. Counsel for Quartey submitted that he was entitled to

adduce evidence of the confessions as being relevant to his client's case and therefore

admissible. Counsel for Myers opposed the admission of the statements relying on section76(2)(b) and 78 of the Act of 1984. He submitted that, if Myers gave evidence, counsel

for Quartey could cross-examine her on the confessions and if she denied having madethem, he could call evidence of what was said pursuant to Lord Denman's Act, theCriminal Procedure Act 1865 (28 & 29 Vict. c.18).

This would involve the jury being told that the confessions would not be evidence of thecommission of the crime by her but would go to her credibility. The trial judge consideredthat "It would be an impossible task for the jury to draw that distinction."


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In considering whether the statements should be admitted the judge found that therewas a direct conflict between two Court of Appeal decisions Reg. v. Campbell and

Williams [1993] Crim. L.R. 448 andReg. v. Beckford and Daley[1991] Crim. L.R. 833.Following the course that he thought right, he ruled that "a statement against interest by

one party is provable against that party by another so long as both remain parties to theparticular action." The confessions were relevant to Quartey's case and, since sections 76

and 78 did not apply, there was no fetter on counsel for Quartey adducing this evidence"either by way of cross-examination of the officers if they are called by the Crown or bycalling them as part of his case."

The Court of Appeal [1996] 2 Cr.App.R. 335, 340, accepted as trite law that:

". . . a statement made by one defendant in the absence of another cannot be evidence againstthatother. Juries have to be directed and are expected to put out of their minds any such material howevercompelling. But the content of any such statement may well be evidence against the maker of thestatement if it amounts to an admission of guilt."

They continued:

"In a case such as the present, we are of the opinion that the confession was relevant to the co-defendant's case as supporting that case to the effect that responsibility did not lie with the co-defendant but solely with the statement maker. The fact that the confession, though voluntary, wasmade to a police officer in breach of the Police and Criminal Evidence Act 1984 does not affect thematter so far as the co-defendant was concerned. It was admissible just as much as it would have beenif made to a casual passer-by."

At p. 341:

"In our view the method by which counsel for Quartey elicited the evidence, in the context of this case,is unimportant. The evidence, however elicited, was relevant to the defence, and in our view did notoffend any rule of hearsay because what the appellant said amounted to a confession made by a partyto the proceedings (see for example Cross and Tapperon Evidence 8th ed. (1995) (p.315). It is to becontrasted with an admission made by a person not a party to the proceedings who is not called to give

evidence. Such a statement is hearsay on the authority ofReg. v. Blastland."

The Court of Appeal found that there was a conflict between the decision in Beckford

and Daleyon the one hand and Campbell and Williams on the other which could not bevalidly distinguished. They preferred the reasoning in Campbell and Williams and on thatbasis dismissed the appeal.

The first question is whether there is a conflict between these two cases.

In Reg. v. Beckford and Daleythree men were charged with murder. One of them,

Correia, admitted in an interview with the police that he had stabbed a man near a door

in a bar. His confession was not admitted by the judge because of a breach of the Code ofPractice to which I have referred. Counsel for Daley applied to cross-examine the police

witnesses about Correia's confession. Auld J. ruled that this confession could only beintroduced through cross-examination of Correia. To allow it through cross-examination of

the police would breach the hearsay rule as stated in Phipson on Evidence, 14th ed.(1990), p. 557, para. 21-02 viz.:

"Former statements of any person whether or not he is a witness in the proceedings, may not be givenin evidence if the purpose is to tender them as evidence of the truth of the matters asserted in them.The rule at common law applies strictly to all classes of proceedings, and there is no special


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dispensation for the defendant in a criminal case . . ."

Auld J. with whom the Court of Appeal, in a judgment given by Watkins L.J. agreed, said:

"His [counsel for Daley's] application, to succeed as to relevance, must be that the statement made by

Correia to the police officer is not only adverse to Correia but favourable to Daley but the exception tothe hearsay rule does not permit the admission of confessions of one person in relation to the caseagainst another, whether they are for or against that other."

He could not create a new exception to the hearsay rule to cover that case since on thebasis ofMyers v. Director of Public Prosecutions [1965] A.C. 1001 and Reg. v.

Blastland[1986] A.C. 41 the category of exceptions to the hearsay rule is now closed andcould only be extended by the legislature.

He further ruled that section 76 of the Act of 1984 applied only as between theprosecution and the defendant whose confession was sought to be given against him andadded:

"In my view section 76 does not touch the general rule of which the case ofTurnerand Blastlandareexamples and that the same principle applies whether or not the statement of confession sought to beadduced is made by a third party to the proceedings or by a co-defendant."

It is, however, not without interest that the Court of Appeal felt that had Correia's

confession been admitted, the jury might have taken a different view as to the cogency ofevidence that it was Daley and not Correia who had struck the fatal blow and convicted

Correia, acquitting Daley. They said "As we have said, the hearsay rule, sound though itis when usually applied is capable sometimes of obscuring--shielding even--the truth. It

may have done so here." In the result, although the court held that the judge was right

not to allow Correia's confession to be introduced through cross-examination of the police

witnesses, the conviction of both men was quashed.

In Reg. v. Campbell and Williams one of three defendants ("A") had recorded aconversation which clearly implicated him and another defendant ("B") but which

supported the defence of a third defendant ("C"). The prosecution had not known of this

evidence but did not object to the evidence being given on behalf of "C". "A" and "B"objected on the ground that this was inadmissible evidence though no suggestion was

made that it would have been excluded under the Act of 1984 if the prosecution hadsought to adduce it. The trial judge ruled that the evidence could be led; it was a

confession admissible against "A" and its admission did not adversely affect the fairnessof the trial. "A" in evidence adopted what he had said in the tape. The jury was told that

the taped conversation was not evidence against "B".

On appeal "A" and "B" contended that the judge was wrong to admit the evidence of

the tape and that this was a material irregularity in the trial. The Court of Appeal, in ajudgment given by Hobhouse J., rejected these contentions and dismissed the appeal.Hobhouse J. distinguished (a) "straightforward hearsay statements" which are not

admissible unless falling within one of the recognised exceptions when they become

evidence for all purposes; (b) previous inconsistent statements admissible to challenge awitness and usable only to discredit him and (c) a confession only admissible against the


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party who made it and then subject to special safeguards in criminal cases.

He distinguished the decision in Reg. v. Beckford and Daleyfrom Reg. v. Campbell

and Williams on the basis that the former was a case where the confession of onedefendant had been ruled inadmissible under the Act of 1984 so that another defendant

could not get it in as part of his cross-examination of a police witness. In Reg. v.

Campbell and Williams on the other hand the question raised was as to "whether it ispermissible for a defendant to adduce confession evidence against a co-defendant when

the prosecution has not adduced that evidence, although there would have been noobjection to its doing so." Recognising the conflicts which can arise in a joint trial hesaid:

"Thus it is commonplace that in criminal trials one defendant's interest may be that the prosecution'scase against a co-defendant should be strengthened and should succeed. A defendant is thereforeentitled to lead admissible evidence which is relevant to the proof of the case against the co-defendantif in so doing the defendant is advancing his own case.""[To say] that the proof against one defendant that he has confessed to the crime with which a co-

defendant is also charged is not relevant to the case of the co-defendant in the same trial, that would,in our judgment, be contrary both to common sense and to the cases we have earlier referred to."

The problem in Reg. v. Beckford and Daleywas not relevance; it was that evidence ofthe confession had already been ruled inadmissible as against Correia and therefore it

could only be put in evidence at the trial if it was admissible on some other basis. As the

judge and the Court of Appeal held, it was not, ". . . it is implicit in the decisionin Beckfordthat a co-defendant cannot be in a better position than the prosecution inrelation to the proof of an inadmissible confession."

He went on:

"Beckfordis clearly distinguishable on the ground that the confession was not admissible as aconfession and the question raised was whether the appellant could independently adduce the out-of-

court statement. Here the question is whether the proof of a confession which was admissible againstthe appellant was a material irregularity in the trial of the appellant because the evidence by which itwas proved was led by a co-defendant not the prosecution. Accordingly we consider that the decisionin Beckforddoes not preclude us from reaching a conclusion in the present case that the admission ofthe confession did not amount to an irregularity during the trial material to the conviction of eitherappellant."

The situations in Beckfordand Campbellwere, I agree, different. Beckfordwas concernedwith the admissibility of a confession which the prosecution could not put in because ofbreaches of the police Code of Practice whereas in Campbellthere was no suggestion of

any such breach, the issue being whether there was some other irregularity in the trial

because of the admission of the tape which it was sought to put in as a confession by onedefendant to be used against and only against that defendant.

Yet it seems to me, as it did to the Court of Appeal in the present case, that on theissue crucial to the present case the two decisions of the Court of Appeal are in conflict.

In BeckfordAuld J. and the Court of Appeal rejected the submission that in a joint trial a

defendant could rely on another defendant's confession to support his own case albeit itwas not evidence against the maker of the statement. InCampbellthe Court of Appeal

held the statement of one defendant to be admissible as a confession furthering the case


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of the co-defendant. In both cases the evidence was clearly relevant.

Since the specific grounds of exclusion of a confession in section 76(2) of the Act of

1984 relate to confessions which the prosecution proposes to put in evidence that sectiondoes not apply to the present case where it is the co-accused seeking to put in the

confession. Section 78 of the Act of 1984 provides for the exclusion of "evidence on which

the prosecution proposes to rely" where the judge thinks that the admission of theevidence would lead to unfairness. That again does not apply to the present case.

It is therefore necessary to consider whether other authorities indicate that the

decision in Reg. v. Campbell and Williams or that in Reg. v. Beckford and Daleyis the onewhich ought to be followed.

In Reg. v. Blastland[1986] A.C. 41 a defendant charged with the murder of a youngboy sought to call witnesses to say that another man "M" had told them before the boy's

body had been discovered that a young boy had been murdered. The trial judge refused

the application on the basis that such evidence was hearsay and inadmissible. The Courtof Appeal upheld the judge's decision. Two questions were certified as involving points of

law of general importance, viz. (see p. 42):

"(1) Whether the confession by a person other than the defendant to the offence with which thedefendant 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 isnot called as a witness is hearsay evidence if it is advanced as evidence of the fact that the words werespoken and so as to indicate the state of knowledge of the person speaking the words if the inferenceto be drawn from such words is that the person speaking them is or may be guilty of the offence withwhich the defendant is charged."

Leave to appeal was given only on the second question but as to the first question LordBridge of Harwich, whilst repeating that a refusal of leave to appeal by an Appeal

Committee of the House is not the equivalent of an authoritative decision of the Houseaffirming the decision of the Court of Appeal, stated at pp. 52-53:

"However the decision of the Court of Appeal (Criminal Division) in Reg. v. Turner (Bryan) 61Cr.App.R. 67, which an appeal on the first certified point would call in question, was itself based on themajority 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, tocreate new exceptions to the hearsay rule. To admit in criminal trials statements confessing to thecrime for which the defendant is being tried made by third parties not called as witnesses would be tocreate a very significant and, many might think, a dangerous new exception."

As to the second question, Lord Bridge accepted, at p. 54, that statements made to a

witness by someone other than the accused were not excluded by the hearsay rule when

they were put in evidence solely to prove the state of mind either of the maker of thestatement or of the person to whom it was made. Yet he said that such a principle can

only apply when the particular state of mind "is either itself directly in issue at the trial orof direct and immediate relevance to an issue which arises at the trial." In that case the

state of mind of "M" was not in issue or directly relevant to the issue whether the

defendant killed the boy since "M" may have acquired knowledge of the death in anumber of ways.


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House of Lords

Judgments - Regina v. Myers

HOUSE OF LORDSLord Mustill Lord Slynn of Hadley Lord SteynLord Hope of Craighead Lord Hutton

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

REGINA

v.

MYERS (APPELLANT)

ON 24th JULY 1997

LORD SLYNN OF HADLEY

My Lords,

The appellant, Melanie Myers, and a man, Clifton Quartey, were charged in onecount in the same indictment with the murder of a mini-cab driver, Muzhar Hussein,

on 12 April 1994. An application by Myers for a separate trial, opposed by the

prosecution and, it seems, also by Quartey, was rejected by the trial judge and on 17February 1995, Myers was convicted of murder and Quartey of manslaughter. Myers'

appeal to the Court of Appeal was dismissed but the court gave her leave to appeal to

your Lordships' House and certified that the following point of law of general publicimportance was involved in its decision, namely:

"In a joint trial of two defendants A and B, is an out of court confession by A which exculpates Bbut which is ruled, or is conceded to be, inadmissible as evidence for the Crown neverthelessadmissible at the instigation of B in support of B's defence, or does such a confession in allcircumstances offend the rule against hearsay?"

The question arose in this way. Myers and Quartey with a young girl were driven inthe cab from Wembley to Howarden Hill where Myers had lived and where she was

subsequently arrested. At 9.45 p.m. the driver was found by a couple who lived on

the Howarden Hill estate. He had been stabbed and cut in a number of places. He died

later that evening in hospital, the cause of death being found on a post-mortemexamination to have been a single stab which entered his heart.

The Crown's case was that this was a joint enterprise each intending to rob the

driver and each being prepared to inflict serious injury on him in the course of doingso. Quartey denied that there was any plan to rob the driver. Myers had ordered thecab and he assumed that she would pay. His evidence was that she put a knife to the

driver's throat in the car and struggled with him when they were both out of the car.

He took no part. Myers' case was that it was Quartey's idea to rob the driver and that


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he pulled a knife when they were all out of the car and stabbed the driver.

The central problem in the case arose from the existence of statements made byMyers to police officers after her arrest.

During a conversation with one police constable at the police station she is alleged

to have said, "I didn't do it, well I did do it," "I did not mean to stab him, I had the

knife and he kept coming forward at me. We only wanted to take his money andthat's all, I thought it would only have been a G.B.H." When asked, "Did you have the

knife?" she replied, "Yes I had it, I didn't mean to kill him and when I read about it in

the paper I couldn't believe it so I just went to Birmingham out of the way." To threeother officers in a vehicle on the way to the magistrates' court she was alleged tohave said, "I reckon I'll get a few years for this." Asked why she replied, "Well I cuthim didn't I he wanted to be a fucking hero so I cut him."

It was the possible prejudice which could arise to one or other of the defendants if

these statements were, or were not, allowed in, and the dispute as to how far theywere admissible, which led to the application for separate trials. Albeit recognising the

difficulty which could arise from admitting these statements in one trial the judge wasmore than satisfied that he should not order separate trials:

"In any event I cannot think of a case where it would be more important and more appropriate forthe two defendants to be tried together. The circumstances which I briefly outlined cry out for a

joint trial. One jury should determine all issues on all the relevant and available evidence betweenall three parties; the Crown and the two defendants."

That decision was challenged on appeal. The Court of Appeal [1996] 2 Cr.App.R. 335,339 referred to what was said in Reg. v. Lake (1976) 64 Cr.App.R. 172, 175 namely:

". . . a joint offence can properly be tried jointly, even though this will involve inadmissible

evidence being given before the jury and the possible prejudice which may result from that."

They took the view that the exercise of the trial judge's discretion could on thisquestion not be faulted--he had looked at the competing interests of both defendants

in reaching his decision. There is no appeal to your Lordships directly against thatdecision but the admissibility of Myers' statements to the police officers in the jointtrial remains in issue.

Although the prosecution relied on a confession, in similar terms to those made tothe police officers, which was made to one Charles Williams, the prosecution did not

seek to put before the jury either of the statements made to the police officers

because there had been breaches of the Code of Practice issued pursuant to sections66 and 67 of the Police and Criminal Evidence Act 1984. Counsel for Quartey

submitted that he was entitled to adduce evidence of the confessions as beingrelevant to his client's case and therefore admissible. Counsel for Myers opposed the

admission of the statements relying on section 76(2)(b) and 78 of the Act of 1984. He

submitted that, if Myers gave evidence, counsel for Quartey could cross-examine heron the confessions and if she denied having made them, he could call evidence ofwhat was said pursuant to Lord Denman's Act, the Criminal Procedure Act 1865 (28 &

29 Vict. c.18). This would involve the jury being told that the confessions would not


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be evidence of the commission of the crime by her but would go to her credibility. Thetrial judge considered that "It would be an impossible task for the jury to draw thatdistinction."

In considering whether the statements should be admitted the judge found that

there was a direct conflict between two Court of Appeal decisions Reg. v. Campbell

and Williams [1993] Crim. L.R. 448 andReg. v. Beckford and Daley[1991] Crim. L.R.833. Following the course that he thought right, he ruled that "a statement against

interest by one party is provable against that party by another so long as both remainparties to the particular action." The confessions were relevant to Quartey's case and,

since sections 76 and 78 did not apply, there was no fetter on counsel for Quarteyadducing this evidence "either by way of cross-examination of the officers if they arecalled by the Crown or by calling them as part of his case."

The Court of Appeal [1996] 2 Cr.App.R. 335, 340, accepted as trite law that:

". . . a statement made by one defendant in the absence of another cannot beevidence againstthat other. Juries have to be directed and are expected to put out of their mindsany such material however compelling. But the content of any such statement may well beevidence against the maker of the statement if it amounts to an admission of guilt."

They continued:

"In a case such as the present, we are of the opinion that the confession was relevant to the co-defendant's case as supporting that case to the effect that responsibility did not lie with the co-defendant but solely with the statement maker. The fact that the confession, though voluntary,was made to a police officer in breach of the Police and Criminal Evidence Act 1984 does not affectthe matter so far as the co-defendant was concerned. It was admissible just as much as it wouldhave been if made to a casual passer-by."

At p. 341:

"In our view the method by which counsel for Quartey elicited the evidence, in the context of thiscase, is unimportant. The evidence, however elicited, was relevant to the defence, and in our viewdid not offend any rule of hearsay because what the appellant said amounted to a confession made

by a party to the proceedings (see for example Cross and Tapperon Evidence 8th ed. (1995)(p.315). It is to be contrasted with an admission made by a person not a party to the proceedingswho is not called to give evidence. Such a statement is hearsay on the authority ofReg. v.Blastland."

The Court of Appeal found that there was a conflict between the decision

in Beckford and Daleyon the one hand and Campbell and Williams on the other whichcould not be validly distinguished. They preferred the reasoning in Campbell andWilliams and on that basis dismissed the appeal.

The first question is whether there is a conflict between these two cases.

In Reg. v. Beckford and Daleythree men were charged with murder. One of them,Correia, admitted in an interview with the police that he had stabbed a man near a

door in a bar. His confession was not admitted by the judge because of a breach ofthe Code of Practice to which I have referred. Counsel for Daley applied to cross-

examine the police witnesses about Correia's confession. Auld J. ruled that thisconfession could only be introduced through cross-examination of Correia. To allow it

through cross-examination of the police would breach the hearsay rule as statedin Phipson on Evidence, 14th ed. (1990), p. 557, para. 21-02 viz.:

"Former statements of any person whether or not he is a witness in the proceedings, may not be

given in evidence if the purpose is to tender them as evidence of the truth of the matters asserted


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in them. The rule at common law applies strictly to all classes of proceedings, and there is nospecial dispensation for the defendant in a criminal case . . ."

Auld J. with whom the Court of Appeal, in a judgment given by Watkins L.J.agreed, said:

"His [counsel for Daley's] application, to succeed as to relevance, must be that the statementmade by Correia to the police officer is not only adverse to Correia but favourable to Daley but theexception to the hearsay rule does not permit the admission of confessions of one person inrelation to the case against another, whether they are for or against that other."

He could not create a new exception to the hearsay rule to cover that case since

on the basis ofMyers v. Director of Public Prosecutions [1965] A.C. 1001 and Reg. v.Blastland[1986] A.C. 41 the category of exceptions to the hearsay rule is now closedand could only be extended by the legislature.

He further ruled that section 76 of the Act of 1984 applied only as between the

prosecution and the defendant whose confession was sought to be given against himand added:

"In my view section 76 does not touch the general rule of which the caseofTurnerand Blastlandare examples and that the same principle applies whether or not thestatement of confession sought to be adduced is made by a third party to the proceedings or by aco-defendant."

It is, however, not without interest that the Court of Appeal felt that had Correia'sconfession been admitted, the jury might have taken a different view as to the

cogency of evidence that it was Daley and not Correia who had struck the fatal blow

and convicted Correia, acquitting Daley. They said "As we have said, the hearsay rule,sound though it is when usually applied is capable sometimes of obscuring--shieldingeven--the truth. It may have done so here." In the result, although the court held that

the judge was right not to allow Correia's confession to be introduced through cross-examination of the police witnesses, the conviction of both men was quashed.

In Reg. v. Campbell and Williams one of three defendants ("A") had recorded a

conversation which clearly implicated him and another defendant ("B") but whichsupported the defence of a third defendant ("C"). The prosecution had not known ofthis evidence but did not object to the evidence being given on behalf of "C". "A" and

"B" objected on the ground that this was inadmissible evidence though no suggestionwas made that it would have been excluded under the Act of 1984 if the prosecution

had sought to adduce it. The trial judge ruled that the evidence could be led; it was a

confession admissible against "A" and its admission did not adversely affect thefairness of the trial. "A" in evidence adopted what he had said in the tape. The jurywas told that the taped conversation was not evidence against "B".

On appeal "A" and "B" contended that the judge was wrong to admit the evidence

of the tape and that this was a material irregularity in the trial. The Court of Appeal, in

a judgment given by Hobhouse J., rejected these contentions and dismissed the

appeal. Hobhouse J. distinguished (a) "straightforward hearsay statements" which arenot admissible unless falling within one of the recognised exceptions when theybecome evidence for all purposes; (b) previous inconsistent statements admissible to

challenge a witness and usable only to discredit him and (c) a confession only

admissible against the party who made it and then subject to special safeguards incriminal cases.

He distinguished the decision in Reg. v. Beckford and Daleyfrom Reg. v. Campbell


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and Williams on the basis that the former was a case where the confession of onedefendant had been ruled inadmissible under the Act of 1984 so that another

defendant could not get it in as part of his cross-examination of a police witness.In Reg. v. Campbell and Williams on the other hand the question raised was as to

"whether it is permissible for a defendant to adduce confession evidence against a co-defendant when the prosecution has not adduced that evidence, although there would

have been no objection to its doing so." Recognising the conflicts which can arise in ajoint trial he said:

"Thus it is commonplace that in criminal trials one defendant's interest may be that theprosecution's case against a co-defendant should be strengthened and should succeed. Adefendant is therefore entitled to lead admissible evidence which is relevant to the proof of thecase against the co-defendant if in so doing the defendant is advancing his own case.""[To say] that the proof against one defendant that he has confessed to the crime with which a

co-defendant is also charged is not relevant to the case of the co-defendant in the same trial, thatwould, in our judgment, be contrary both to common sense and to the cases we have earlierreferred to."

The problem in Reg. v. Beckford and Daleywas not relevance; it was that evidence of

the confession had already been ruled inadmissible as against Correia and therefore itcould only be put in evidence at the trial if it was admissible on some other basis. Asthe judge and the Court of Appeal held, it was not, ". . . it is implicit in the decisionin Beckfordthat a co-defendant cannot be in a better position than the prosecution inrelation to the proof of an inadmissible confession."

He went on:

"Beckfordis clearly distinguishable on the ground that the confession was not admissible as aconfession and the question raised was whether the appellant could independently adduce the out-of-court statement. Here the question is whether the proof of a confession which was admissibleagainst the appellant was a material irregularity in the trial of the appellant because the evidenceby which it was proved was led by a co-defendant not the prosecution. Accordingly we consider

that the decision in Beckforddoes not preclude us from reaching a conclusion in the present casethat the admission of the confession did not amount to an irregularity during the trial material tothe conviction of either appellant."

The situations in Beckfordand Campbellwere, I agree, different. Beckfordwas

concerned with the admissibility of a confession which the prosecution could not put in

because of breaches of the police Code of Practice whereas in Campbellthere was nosuggestion of any such breach, the issue being whether there was some other

irregularity in the trial because of the admission of the tape which it was sought to put

in as a confession by one defendant to be used against and only against thatdefendant.

Yet it seems to me, as it did to the Court of Appeal in the present case, that on theissue crucial to the present case the two decisions of the Court of Appeal are in

conflict. In BeckfordAuld J. and the Court of Appeal rejected the submission that in a

joint trial a defendant could rely on another defendant's confession to support his owncase albeit it was not evidence against the maker of the statement. In CampbelltheCourt of Appeal held the statement of one defendant to be admissible as a confession

furthering the case of the co-defendant. In both cases the evidence was clearly


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relevant.

Since the specific grounds of exclusion of a confession in section 76(2) of the Act

of 1984 relate to confessions which the prosecution proposes to put in evidence thatsection does not apply to the present case where it is the co-accused seeking to put in

the confession. Section 78 of the Act of 1984 provides for the exclusion of "evidence

on which the prosecution proposes to rely" where the judge thinks that the admissionof the evidence would lead to unfairness. That again does not apply to the presentcase.

It is therefore necessary to consider whether other authorities indicate that thedecision in Reg. v. Campbell and Williams or that in Reg. v. Beckford and Daleyis theone which ought to be followed.

In Reg. v. Blastland[1986] A.C. 41 a defendant charged with the murder of a

young boy sought to call witnesses to say that another man "M" had told them before

the boy's body had been discovered that a young boy had been murdered. The trialjudge refused the application on the basis that such evidence was hearsay and

inadmissible. The Court of Appeal upheld the judge's decision. Two questions werecertified as involving points of law of general importance, viz. (see p. 42):

"(1) Whether the confession by a person other than the defendant to the offence with which thedefendant 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 partywho is not called as a witness is hearsay evidence if it is advanced as evidence of the fact that thewords were spoken and so as to indicate the state of knowledge of the person speaking the wordsif 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."

Leave to appeal was given only on the second question but as to the first question

Lord Bridge of Harwich, whilst repeating that a refusal of leave to appeal by an AppealCommittee of the House is not the equivalent of an authoritative decision of the Houseaffirming the decision of the Court of Appeal, stated at pp. 52-53:

"However the decision of the Court of Appeal (Criminal Division) in Reg. v. Turner (Bryan) 61Cr.App.R. 67, which an appeal on the first certified point would call in question, was itself based onthe 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, notthe judiciary, to create new exceptions to the hearsay rule. To admit in criminal trials statementsconfessing to the crime for which the defendant is being tried made by third parties not called aswitnesses would be to create a very significant and, many might think, a dangerous newexception."

As to the second question, Lord Bridge accepted, at p. 54, that statements made to

a witness by someone other than the accused were not excluded by the hearsay rulewhen they were put in evidence solely to prove the state of mind either of the makerof the statement or of the person to whom it was made. Yet he said that such a

principle can only apply when the particular state of mind "is either itself directly in

issue at the trial or of direct and immediate relevance to an issue which arises at thetrial." In that case the state of mind of "M" was not in issue or directly relevant to the

issue whether the defendant killed the boy since "M" may have acquired knowledge of

the death in a number of ways.


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That part of Lord Bridge's decision is not relevant to the present case but the

passage which I have quoted as to the first question confirms that the accused

cannot call evidence of a third party's out of court admission of guilt in order toestablish his own innocence. The justification for this rule is based, said Lord Bridge,

on the principle stated by Lord Normand in Tepper v. The Queen[1952] A.C. 480,

486 viz.:

"The rule against the admission of hearsay evidence is fundamental. It is not the best evidence

and it is not delivered on oath. The truthfulness and accuracy of the person whose words arespoken to by another witness cannot be tested by cross-examination, and the light which hisdemeanour would throw on his testimony is lost."

In Turner (Bryan) 61 Cr.App.R. 67, where it was sought to produce evidence of astatement by one person that he rather than one of the defendants had taken part in

the robbery, it was said, at p. 87: "This court is of opinion that the ruling of thelearned judge in refusing to admit in evidence the statement made to a third partyby a person not himself called as a witness in the trial was clearly correct."

Further, at p. 88:

"This court does not find in any [of the cases cited] any authority for the proposition advanced inthis case that hearsay evidence is admissible in a criminal case to show that a third party whohas not been called as a witness in the case has admitted committing the offence charged. Theidea, which may be gaining prevalence in some quarters, that in a criminal trial the defence isentitled to adduce hearsay evidence to establish facts, which if proved would be relevant andwould assist the defence, is wholly erroneous."

In those two cases it was the statement of a third party which was held to beinadmissible. These are clearly hearsay. On the other hand there are decisions where

it has been held that one defendant is entitled to cross-examine a co-defendant as tothe latter's confession which is inconsistent with his evidence at the trial.

Thus in Reg. v. Miller[1952] 2 All E.R. 667 where counsel for one alleged

conspirator to import goods unlawfully sought to ask a prosecution witness whether

another conspirator was not in prison at a time when no illegal importations tookplace, Devlin J., said that questions as to previous character and convictions werenot normally admissible "not primarily for the reason that they are prejudicial, but

because they are irrelevant." The judge may exclude questions of that sort if theprosecution seeks to ask them even if they are relevant in circumstances where theprejudice outweighs the relevance. Devlin J. added however, at p. 659:

"No such limitation applies to a question asked by counsel for the defence. His duty is to adduce

any evidence which is relevant to his own case and assists his client, whether or not it prejudicesanyone else."

A similar principle was stated in Reg. v. Bracewell(1978) 68 Cr.App.R. 44 whereOrmrod L.J. giving the judgment on the Court of Appeal said, at p. 50:

"The problem generally arises in connection with evidence tendered by the Crown, so thatmarginal cases can be dealt with by the exercise of discretion. 'When in doubt, exclude,' is a good


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working rule in such cases. But when the evidence is tendered by a co-accused, the test ofrelevance must be applied, and applied strictly, for if irrelevant, and therefore inadmissibleevidence is admitted, the other accused is likely to be seriously prejudiced, and grave injusticemay result."

On the basis of this decision it seems that relevance is the appropriate test even

if the admission of relevant evidence at the suit of one defendant will cause prejudiceto the other accused.

To similar effect is a statement in Lowery v. The Queen [1974] A.C. 85 in thePrivy Council. In that case evidence by a psychiatrist of one defendant's

aggressiveness was admitted to rebut his statement that he was not the sort of

person who would have committed the murder. It was evidence which could be reliedon by the co-accused to show that his version of the facts was more probable thanthat of the other. Lord Morris of Borth-y-Gest approved a statement in the judgment

of the Supreme Court of Victoria from which the appeal came, to the following effect,at p. 102:

"It is, however, established by the highest authority that in criminal cases the Crown isprecluded from leading evidence that does no more than show that the accused has a dispositionor propensity or is the sort of person likely to commit the crime charged . . ."

"It is, we think, one thing to say such evidence is excluded when tendered by the Crown in proofof guilt, but quite another to say it is excluded when tendered by the accused in disproof of hisown guilt. We see no reason of policy or fairness which justifies or requires the exclusion ofevidence relevant to prove the innocence of an accused person."

See also Reg. v. Reid[1989] Crim.L.R. 719 where it was held that it was proper

for one co-defendant to seek to undermine the appellant's defence insofar as thatconsisted in blaming the co-defendant.

An analogous point arose in Murdoch v. Taylor[1965] A.C. 574 in relation tosection 1(f)(iii) of the Criminal Evidence Act 1898 which provides that a personcharged with an offence, and giving evidence on his own behalf, may not be asked

questions tending to show that he has committed or been convicted of or charged

with some other offence unless "he has given evidence against any other person

charged with the same offence." If the prosecution sought to avail themselves of theproviso then the judge had a discretion as to whether in the interests of a fair trial

the prosecution should be allowed to cross-examine as to character or previousconvictions.

"But when it is the co-accused who seeks to exercise the right conferred by proviso (f)(iii)different considerations come into play. He seeks to defend himself; to say to the jury that theman who is giving evidence against him is unworthy of belief; and to support that assertion byproof of bad character. The right to do this cannot in my opinion, be fettered in any wayperLordDonovan, at p. 593, with whom Lord Reid and Lord Evershed agreed."

Lord Donovan's speech was relied on by the Court of Appeal in Reg. v. Rowson(James) [1986] Q.B. 174 although the case was not concerned with section 1(f) of

the Act of 1898. There three men were charged with assault causing grievous bodily

harm with intent. The Court of Appeal in a judgment delivered by Robert Goff L.J.held, at p. 180, that one defendant (Keating) who had made a previous inconsistent

statement that he had had a piece of wood with which he had hit the person injured

could be cross-examined as to that statement by the other defendants. This was amatter, it was said, which was material to the defence of the two Rowsons because:

"since there was an issue whether the injury to Williamson was caused by a blow from the pieceof wood, it was relevant for the Rowsons to establish that at no time did any of them have thepiece of wood in his possession. That being so, we know of no principle of law which justified the

judge in limiting the cross-examination by [Rowsons' counsel] on this matter, thereby inhibiting


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two of the defendants in pursuing it as part of their defence."

The court distinguished Rex v. Treacy[1944] 2 All E.R. 229 and Reg. v.Rice [1963] 1 Q.B. 857 as being cases where the prosecution was not allowed tocross-examine on the basis of a statement which had been ruled, or conceded, to beinadmissible against the accused person because it was involuntary or obtained in

breach of the judge's rules.

The judgment in Rowson was approved by the Privy Council in Lui Mei Lin v. The

Queen [1989] 1 A.C. 288 and found to be consistent with the principles annunciatedin Murdoch v. Taylor[1965] A.C. 574 and Reg. v. Miller[1952] 2 All E.R. 667. In LuiMei Lin a defendant was not allowed to cross-examine a co-defendant on a

statement incriminating the defendant which the judge had ruled inadmissible aspart of the prosecution case because it was not made voluntarily. Having referred tosection 5 of the Criminal Procedure Act 1865 (Lord Denman's Act) the Privy Council

in the opinion of Lord Roskill said, at p. 297:

"The only limit on the right of a co-accused to cross-examine another co-accused in thesecircumstances is, in their Lordships' opinion, relevancy. If one co-accused has given evidenceincriminating another it must be relevant for the latter to show, if he can, that the former has on

some other occasion given inconsistent evidence and thus is unworthy of belief."He stressed, at p. 298, however, that the judge must warn the jury:

"that they must not use the statement in any way as evidence in support of the prosecution'scase and that its only relevance is to test the credibility of the evidence which the maker of thestatement has given against his co-accused."

It is to be noted that in Perrie v. H.M. Advocate 1992 S.L.T. 651 the Court ofSession in the opinion given by the Lord Justice (Ross) Clerk accepted the view ofLord Bridge in Reg. v. Blastland[1986] A.C. 41, 53 that a statement by a third party

not called as a witness could not be admitted. but considered that an exception tothe hearsay rule existed for statements by an accused person, at p. 654:

"This exception is allowed because an accused is a party to the proceedings and an admission isa statement against interest, and is thus more likely to be true than false . . . An accused is aparty to proceedings in a way in which an incriminee is not; he is entitled to the full protectionwhich the law gives to accused persons."

That opinion however has to be read subject to the view of the Court of Session

that, contrary to what was said in Reg. v. Turner, 61 Cr.App.R. 67 and in Reg. v.Blastland, in the law of Scotland the categories of hearsay evidence are not closed.

It is, however, clear that in the cases referred to a distinction has been drawnbetween statements by parties to the proceedings and by third parties, the former, ifrelevant and voluntary, being admissible the latter not being admissible.

On the other hand it is to be noted that in the Evidence in Criminal Proceedings:Hearsay and Related Topics, Law Commission consultation paper (1995), No.138, at

para. 7.44 it is stated:

"The fact that someone else has confessed to the offence is logically relevant to the issue ofwhether the defendant committed it or not: this is so whether the other person is a co-defendantwho gives evidence, a co-defendant who exercises his right not to give evidence, a co-defendantwho is tried separately, or a person who is never caught or never prosecuted."

It seems to me that there is force in that comment despite Lord Bridge's anxiety

that if confessions by third parties were admitted it would only be too easy for

fabricated confessions to produce unjustified acquittals. Accepting Lord Bridge's viewin Blastlandthat statements by third persons are not admissible there is a long line


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of authority showing that a defendant must be allowed to cross-examine a co-accused as to a previous inconsistent confession so long as the material is relevant

to the defendant's own defence. In my opinion a defendant should also be allowed toput a co-defendant's confession to witnesses to whom the confession was made so

long as the confession is relevant to the defendant's defence and so long as itappears that the confession was not obtained in a manner which would have made it

inadmissible at the instance of the Crown under section 76(2) of the Act of 1984.There may be doubt as to whether the co-accused will be called (so that it may not

be possible to put the confession to the co-accused directly) and not to allow the

defendant to introduce it by way of cross-examination of prosecution witnesses couldlead to great unfairness.

This seems to me to be consistent with the opinion of the Privy Council ofLobbanv. The Queen[1995] 1 W.L.R. 877, 888-889. There it was said, at p. 889:

"The principled objection to the discretion envisaged by counsel" [i.e. of the judge at the requestof one defendant to exclude evidence tending to support the defence of another defendant] "isthat it conflicts with a defendant's absolute right, subject to considerations of relevance, todeploy his case asserting his evidence as he thinks fit."

This seems to me the position whether or not the judge and the Court of Appealin Reg. v. Beckford and Daleywere right to hold that section 76(1) of the Act of 1984only applies to evidence which the prosecution seeks to adduce, a question which isstill subject to debate and on which it is not necessary to rule in this case,

particularly since the Law Commission has recommended that "the admissibility of a

confession by one co-accused at the instance of another should be governed byprovisions similar to section 76 of PACE, but taking into account the standard ofproof applicable to a defendant." (Recommendation 19 ofThe Evidence in Criminal

Proceedings: Hearsay and Related Topics, Law Com. No. 245) (1997), (Cmnd.3670).

In Reg. v. Rowson [1986] Q.B. 174, 180E, the evidence was said to be relevant"in the sense that it went to the credibility to be attached to evidence given by

Keating on a material issue" and in Lui Mei Lin v. The Queen [1989] A.C. 288, 298D-

E, it was said that the judge should warn the jury "that its only relevance is to testthe credibility of the evidence which the maker of the statement has given againsthis co-accused." The previous statement by Keating in Rowson was, however,

regarded as not only relevant to Keating's credibility but it was also material to theRowsons' defence that they did not at any time have any wood in their possession.

A confession may be relevant both as to credibility and as to the facts in issueand it does not cease to be admissible because it does so. Indeed so long as it isrelevant to establish his defence or to undermine the prosecution case against him a

defendant should in my view be allowed to cross-examine a co-defendant as to hisconfession which goes to the facts in issue rather than only to the credibility of the

maker of the statement. He should not less be allowed to cross-examine the personto whom a statement is made as to the terms of the confession even though, sincethe defendant has not given evidence, the question of credibility has not arisen.

In Reg. v. Rowson and Lui Mei Lin v. The Queen the Court of Appeal and thePrivy Council respectively stressed that the judge must tell the jury that weightshould not be placed on such statement in considering the prosecution case against

the maker of the statement; it was considered that the jury would be able to

understand the difference and give effect to the judge's direction. On the other hand


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for a jury to make this distinction may not always be easy as has been fullyrecognised by the trial judge in the present case, by Lord Lane C.J. in Reg. v.

O'Boyle (1990) 92 Cr.App.R. 202 and by academic commentators. But even allowingfor a risk of prejudice to the maker of the statement in the mind of the jury, the

authorities to which reference has been made make it plain that a defendant must beallowed to cross-examine a co-defendant as to, and in appropriate circumstances to

introduce, relevant evidence of a previous confession made by the co-defendant.

In the present case Myers' previous confessions to the police officers were

relevant to the question whether her assertion that it was Quartey who had

murdered the cab driver was to be believed and therefore was clearly relevant toQuartey's defence that it was not he who had killed. It was obviously either one or

the other who had killed the driver and justice required that Quartey should beallowed to bring out the earlier confession in his defence as casting doubt on Myers'

denial. For Myers to deny the confession in evidence would have allowed the police

officers to be called by Quartey pursuant to section 4 of the Criminal Procedure Act1865 (Lord Denman's Act). It seems to me that it was also relevant and admissible

for the police officers who were not called, but were tendered, by the prosecution to

be asked about the confession on behalf of Quartey. It was not suggested that theconfessions were obtained in the circumstances referred to in section 76(2) of theAct of 1984, and the fact that the prosecution was not able to introduce the evidence

because of breaches of the police Code did not preclude Quartey's counsel fromdoing so.

The question certified goes much wider than the facts of the present case and itis neither necessary nor desirable to answer it further than in the present context.

Myers' appeal should accordingly be dismissed.

LORD MUSTILL

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned

friend Lord Hope of Craighead. For the reasons he has given, I too would dismiss thisappeal.

LORD STEYN


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My Lords,

I have had the privilege of reading the speech prepared by my noble and learned

friend Lord Slynn of Hadley in draft. For the reasons he has given I would alsodismiss the appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

I have had the benefit of reading in draft the speech of my noble and learned

friend, Lord Slynn of Hadley. I agree with him that this appeal should be dismissed. I

also would decline to answer the certified question, for reasons which do not arise onthe facts of this case but which I should like to set out in some detail in order todefine my understanding of the limits of the proposition which the question was

designed to express.

The question which is before us raises a point of law of general importancerelating to the law of evidence. Two defendants went to trial charged with murder in

one count on the same indictment. The circumstances were such that the murder,which was by stabbing, could have been committed by only one, not both, of them.

The case for each defendant was conducted on the basis that the other was solely to

blame for the murder. One of the defendants, who in the event was found guilty onlyof manslaughter, gave evidence to this effect. The other defendant, who also gave

evidence, was found guilty of murder. It is at her instance that the appeal has beentaken.

The Crown were in possession of certain statements which were alleged to have

been made by the appellant to police officers shortly after her arrest. In the courseof these statements she had admitted that it was she who had stabbed the

deceased. These statements were not relied upon by the Crown because they had

been obtained in breach of the Code of Practice issued under section 66 of the Policeand Criminal Evidence Act 1984. The Crown did not seek to put them before the jury,so the trial judge was not required to make any ruling about their admissibility in a

question as between the Crown and the appellant. But they had been disclosed to

the other defendant, whose counsel sought to lead evidence of the statements fromthe police officers on the ground that they were relevant to his client's case and

therefore admissible as part of his defence. The trial judge decided to admit the

statements, saying that they could be elicited either by way of cross-examination ofthe police officers or by calling the police officers as part of his case. The appellant,who was a party to the same proceedings in this joint trial, was of course not a

compellable witness for the other defendant. She was entitled to decline to giveevidence, so the only way in which the other defendant could be sure that heradmissions would be put in evidence was through the evidence to be given by the


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police officers during the Crown case.

In the Court of Appeal two points were considered. The first was whether the fact

that the statements were made in breach of the Police and Criminal Evidence Act1984 and were thus inadmissible as evidence for the Crown meant that they were

inadmissible also at the instance of the co-defendant. They answered this question in

the negative, on the ground that, as the admissions were voluntary, the breach ofthe Act did not affect the matter so far as the co-defendant was concerned. In theiropinion they were as admissible in the same way as statements made to a casual

passer-by would have been admissible. The second was whether to elicit the

evidence from the police officers offended against the rule about hearsay evidence.They answered this question in the negative also, on the ground that as the

appellant was a party to the proceedings the leading of this evidence did not offendany rule of hearsay.

In my opinion it is necessary to examine each of these two points separately in

order to answer the question which we have been asked to decide. It is alsonecessary to distinguish the issues which arise in this case from those which arise

where the question is whether a defendant who has chosen to give evidence in ajoint trial and blames a co-defendant can be cross-examined on behalf of that co-defendant, by putting to him an inconsistent statement made to the police which, at

the instance of the Crown, is inadmissible. In that situation there is no question ofleading hearsay evidence. The purpose of putting the inconsistent statement is also

different. It is to challenge the credibility of the defendant's evidence against the co-defendant. In the present case the credibility of the appellant was not in issue,

because it was not known whether she was to give evidence when the decision wastaken by the trial judge. In the event she did give evidence. But she denied making

the statements to the police, and it appears that she was not cross-examined uponthem by counsel for the co-defendant.

In Reg. v. Rowson (James) [1986] Q.B. 174 it was held that there was no

principle that prevented a defendant from cross-examining a co-defendant on astatement that was relevant to the trial. The statement in question in that case hadbeen made by the co-defendant in breach of rule III(b) of the Judges' Rules, and it

was not led by the Crown. It contained an admission of guilt which was inconsistentwith the evidence which he gave at the trial, in which he denied hitting or kicking the

victim. The reason why it was held that the trial judge ought to have allowed him tobe cross-examined on his statement was that it was evidence which went to his

credibility on a matter which was relevant to an issue in the trial and the defence ofthe other defendants. Robert Goff L.J. noted, at p. 180D, that the case was different

from two previous cases where the question whether an accused could be cross-

examined on an inadmissible statement had been considered. In Rex v.Treacy[1944] 2 All E.R. 229 it was held that such a statement could not be used by

the prosecution in its cross-examination of the defendant. Humphreys J. said, at p.236: "In our view, a statement made by a prisoner under arrest is either admissibleor it is not admissible . . . If it is not admissible, nothing more ought to be heard ofit. . . ." In Reg. v. Rice [1963] 1 Q.B. 857 this principle was applied in favour of a co-

defendant of the maker of such a statement. But in Reg. v. Rowson it was counsel

for the co-defendants who wished to use the statement in cross-examination, as itwas relevant to the credibility to be attached to evidence given by the defendant on

an issue which was material to their defence.


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In Lui Mei Lin v. The Queen [1989] A.C. 288 the decision in Reg. v. Rowson was held by

the Privy Council to be entirely in line with the principles which had been expressed in two

previous cases where the co-accused had been seeking to exercise the right to cross-examine conferred by section 1(f)(iii) of the Criminal Evidence Act 1898: Reg. v.

Miller[1952] 2 All E.R. 667 and Murdoch v. Taylor[1965] A.C. 574. In those cases it wasdecided that, once a co-accused had given evidence against another co-accused, the latter

was under the statute entitled without restriction to cross-examine him as to his characterand his previous convictions. In Lui Mei Lin v. The Queen [1989] A.C. 288, 297F Lord Roskill

said that the only limit on the right of a co-accused to cross-examine another co-accused isthat of relevancy. In my opinion however different considerations apply where the co-

accused is seeking to adduce evidence from the police about statements made by another

co-accused which are inadmissible against that other co-accused who has not given, or whohas yet to give, evidence. The principles which have been developed under reference to the

right to cross-examine the co-accused as to his credibility do not apply in these

circumstances. The hearsay rule, which has no application where a co-accused is beingcross-examined about his own statements, has to be considered because the contents of astatement made to the police by a third party are hearsay evidence as to the truth of those

contents. If the evidence is admissible, it must be by way of an exception to the hearsay

rule. And the inadmissibility of the statement at the instance of the Crown has to be

considered also, in a quite different context from that which applies where the maker of thestatement is in the course of giving his evidence.

I shall deal first with the hearsay rule. It appears that on this issue there is a conflict of

authority. In Reg. v. Beckford and Daley[1991] Crim. L.R. 833 it was held that it would be

a breach of the hearsay rule for the police witnesses to be cross-examined by counsel forone of the defendants about a confession made by the co-defendant in a police interview.

The trial judge had held that that confession was inadmissible against the co-defendantbecause of a breach of the Code of Practice, so the evidence could not have been led by the

prosecutor. He held that it could only be introduced by cross-examination of the co-defendant if he were to give evidence. The Court of Appeal held that to have allowed it to be

put to the police officers would have been to create a new exception to the hearsay rule,

contrary to the decision in Myers v. Director of Public Prosecutions [1965] A.C. 1001 that itwas for the legislature, not the judiciary, to create such exceptions.

In Reg. v. Campbell and Williams [1993] Crim.L.R. 448 the question about the hearsayrule did not arise directly. The evidence in question was a tape recording of a conversation

in which Campbell implicated himself and Williams in the crime but supported the defence of

a third defendant. The prosecutor did not lead this evidence because he had not been awareof it. The question arose when counsel for the third defendant sought to lead the evidence

about the tape recording from his father in the face of objections from the other two co-

defendants. The trial judge allowed the evidence to be led, on the ground that it was anadmission which was admissible against Campbell. When Campbell gave evidence headopted what he had said on tape as part of his evidence. The jury were told that the taped

conversation was not evidence against Williams. Following their conviction Campbell andWilliams appealed on the ground that the trial judge was wrong to admit the evidence of thetape recording. The Court of Appeal dismissed the appeals on grounds which were, in part,

inconsistent with what was said in Beckford and Daley[1991] Crim. L.R. 833. Hobhouse J.,

who delivered the judgment of the court, sought to distinguish that case on a differentground, namely that the statement which the co-accused was not allowed to elicit had beenheld by the trial judge to be inadmissible at the instance of the prosecutor. But he made it

clear that in his opinion the evidence, so long as it was not inadmissible on some otherground, could have been led under one of the recognised exceptions to the hearsay rule


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which enables an admission made by a party to a litigation to be led in evidence againsthim.

It seems to me that two issues arise for decision on this part of the case. The first is how

to resolve the conflict between Reg. v. Beckford and Daleyand Reg. v. Campbell and

Williams [1993] Crim.L.R. 448. The second, which it is convenient to deal with first, is

whether to hold that there was no breach of the hearsay rule in such circumstances wouldbe in conflict with what was said in your Lordships' House in Reg. v. Blastland[1986] 1 A.C.

41. In that case the appellant sought to call a number of witnesses to give evidence that athird party, who was not on trial with him as a co-defendant, had said things tending toshow that he was guilty of the crime with which the appellant had been charged. He also

sought to call the third party and to treat him as a hostile witness--the implication being

that he would not be willing to admit the truth of these statements and perhaps also that hewould deny making them. The evidence to be led from the other witnesses was therefore

plainly hearsay evidence, and it was held to be inadmissible on this ground. When the Court

of Appeal dismissed the appellant's appeal against his conviction they certified as a questionof general public importance the question whether the confession by a person other than

the defendant to the offence with which the defendant is charged is admissible in evidencewhere that person is not called as a witness. The Appeal Committee of the House of Lords

refused leave to appeal on this ground, but granted leave on another point. Commenting onthis matter before moving to the other point, Lord Bridge of Harwich observed that thiswould involve creating a new exception to the hearsay rule and said, at pp.52H-53A:

"To admit in criminal trials statements confessing to the crime for which the defendant is being triedmade by third parties not called as witnesses would be to create a very significant and, many might think,a dangerous new exception."

The situation in the present case is however not the same as that in Reg. v. Blastland. The

statements which counsel for the appellant's co-accused was allowed to lead in evidence

from the police witnesses were statements by his co-defendant, not by a person who could

properly be described as a third party because he was not a party to the trial. There was noother way of eliciting this evidence because the maker of the statements was not a

compellable witness for the co-defendant. It was evidence which was relevant to hisdefence, because it related to one of the crucial issues at the trial, namely whether it wasthe appellant or the co-defendant who had stabbed the deceased. Why then--leaving aside

for the moment the second question which relates to its inadmissibility as prosecutionevidence--should it be held to be inadmissible as evidence for the co-defendant?

On this issue--which relates more directly to the conflict between Reg. v. Beckford andDaleyand Reg. v. Campbell and Williams--some assistance can, I think, be gained from tworecent decisions from Scotland in the High Court of Justiciary. These two cases, Perrie v.

H.M. Advocate1991 J.C. 27 and McLay v. H.M. Advocate 1994 J.C. 159, were both

concerned with the question whether confessions made by a third party after the trial could

be relied upon as additional evidence for the purposes of an appeal against conviction, onthe ground that additional evidence which was not available at the trial had now become

available. In Perrie v. H.M. Advocate the confession was said to have been made by aperson whom the appellant had named at the trial as the person who had committed the

crime. In McLay v. H.M. Advocate the confession was said to have been made by a personwho had been tried together with the appellant on a charge of murder but had been

acquitted. There was however this feature in common, that in the event of a new trialneither of the two persons who were said to have made the confessions would have been on

trial with the appellant. The evidence of the persons to whom they were said to have made


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the confessions would have been hearsay evidence from third parties, just as in Reg. v.Blastland [1986] A.C. 41.

In Perrie v. H.M. Advocate the appeal was refused for the same reason as in Reg. v.

Blastland, and in McLay v. H.M. Advocate a court of five judges approved of the decision

and, applying it to the facts of the case, also refused the appeal. In Perrie v. H.M.

Advocate 1991 J.C. 27, 29 Lord Justice-Clerk (Lord Ross), said that the law of England wasan uncertain guide as, unlike the position in England as described in Reg. v. Blastlandwhere

the categories of exceptions to the hearsay rule were said to be closed, that was not so inthe law of Scotland. But in McLay v. H.M. Advocate 1994 J.C. 159, 166 the Lord Justice-Clerk said that any alteration to the hearsay rule as applied in criminal cases would have to

be made by Parliament, so on this point I think that the law of the two countries can be

taken to be virtually indistinguishable. The real interest to be found in these two Scottishcases is in the discussion, particularly in the five judge case ofMcLay v. H.M. Advocate, of

the reasons why the hearsay rule has never been held in a Scottish case to prevent an

accused from leading evidence from police and other witnesses of statements made to themby his co-accused which assisted his case although they were against the interest of the co-

accused. Each of the five judges, all of whom were very experienced in the conduct ofcriminal trials, commented on this matter. But the most detailed discussion is to be found inthe opinions of Lord McCluskey, at pp. 169-170 and Lord Sutherland, at p. 176.

These opinions make it clear that the following are the reasons which are commonlygiven for admitting this evidence. First, the evidence could--leaving aside the question of

other objections--have been led by the Crown, because it is relevant to the Crown caseagainst the accused who made the statement and it has always been competent to lead

evidence of admissions made by the accused as part of the Crown case. Second, evidencewhich tends to incriminate the accused who made the statement is relevant also to the

defence of the co-accused, where only one of them could have committed the crime. Third,

as the statement contains an admission against the interest of the person who made it, it ismore likely to be true than false and it is therefore evidence which should be made available

at the trial. Fourth, the evidence of those to whom the statement was made or heard it

being made is the best evidence of the fact that the statement was made, as the personwho made it is not a compellable witness at his own trial. And fifth, as the accused is a

party to the proceedings at which the evidence is to be led, he or she has the protectionwhich the law gives to accused persons in cases where evidence is to be led which may beincriminating.

The following passage from the judgment of Hobhouse J. in Reg. v. Campbell and

Williams which was quoted by Russell L.J. in his judgment in the present case, [1996] 2Cr.App.R. 335, 342E-343B, sets out an approach to the problem which is consistent withthat which has been taken in Scotland:

"If the judge is saying that the proof against one defendant that he has confessed to the crime with whicha co-defendant is also charged is not relevant to the case of the co-defendant in the same trial, thatwould, in our judgment, be contrary both to common sense and to the cases we have earlier referred to.The defendants are being tried together and the jury are entitled to take into account the strength of thecase against one defendant when considering whether that weakens the case against another. Onedefendant is entitled to add to the strength of the case against a co-defendant with evidence admissibleagainst that co-defendant if it assists his own defence to do so. The problem in Beckfordwas notrelevance; it was that the evidence of the confession had already been ruled inadmissible as againstCorreia and therefore it could only be put in evidence at the trial if it was admissible on some other basis.As the judge and the Court of Appeal held, it was not. Correia never gave evidence so no opportunityarose to put it to him in cross-examination under the principle stated in Reg. v. Rowson [1986] Q.B. 174,and Lui Mei Lin v. The Queen [1989] A.C. 288. It is implicit in the decision in Beckfordthat the co-


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defendant cannot be in a better position than the prosecution in relation to the proof of an inadmissibleconfession as a confession."

I respectfully agree with Russell L.J. that the reasoning on the issue of hearsay which iscontained in Reg. v. Campbell and Williams is to be preferred to that in Reg. v. Beckford and

Daley. But the point on which Hobhouse J.'s observations in Campbellwere in agreementwith what he took to be the decisive point in Beckford, namely that the co-defendant cannot

be in a better position than the Crown in relation to the proof of a confession which isinadmissible against the defendant, must also be considered. This is the second issue, towhich I now turn.

In the Court of Appeal it was held that the inadmissibility of the police admissions at thesuit of the Crown because of breaches of the Code of Practice did not affect the co-

defendant, as it was never suggested that the statements were inadmissible because theywere other than voluntary. Russell L.J. said, [1996] 2 Cr.App.R. 335, 340C-D:

"In a case such as the present, we are of the opinion that the confession was relevant to the co-defendant's case as supporting that case to the effect that responsibility did not lie with the co-defendantbut solely with the statement maker. The fact that the confession, though voluntary, was made to a policeofficer in breach of the Police and Criminal Evidence Act 1984 does not affect the matter so far as the co-defendant was concerned. It was admissible just as much as it would have been if made to a casual

passer-by."

In Reg. v. Beckford and Daleythe statement was ruled by the trial judge to be inadmissible

under section 78 of the Police and Criminal Evidence Act 1984 because it was made in theabsence of a solicitor. It does not appear from the report that it was suggested that therewere grounds for holding it to be inadmissible under section 76(2) of the Act. But the

objection was upheld on the ground that the circumstances in which it was made were suchthat it would have such an effect on the fairness of the proceedings that the court ought notto admit it. In Reg. v. Campbell and Williams Hobhouse J. made it clear that he approved of

the proposition which he held to be implicit in the decision in the Beckfordcase, that the co-

defendant could not be in a better position than the prosecution in relation to the proof of a

confession which was inadmissible. At first sight the decision of the Court of Appeal in thepresent case is not consistent with that approach.

The grounds on which a confession may be held to be inadmissible in a criminal trial are

set out in section 76(2) and section 78 of the Act of 1984. A confession is defined in section82(1) as including:

"any statement wholly or partly adverse to the person who made it, whether made to a person inauthority or not and whether made in writing or otherwise."

The primary rule is that in section 76(1), namely that in any proceedings a confession madeby an accused person may be given in evidence against him in so far as it is relevant to any

matter in issue in the proceedings. If however the prosecution proposes to give in evidencea confession which was or may have been obtained by oppression, or in consequence ofanything said or done which was likely to render it unreliable, and it is unable to prove thecontrary, the court is required by section 76(2) not to allow the confession to be given inevidence.

That subsection does not refer to the position of a co-defendant who might wish to lead

the same evidence. But it is hard to see why a co-defendant should be in a better positionthan the Crown if the confession was obtained in such circumstances. A confession which


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has been obtained by oppression or which, for other reasons, was not freely given and is

unreliable, is worthless evidence. It is beyond question, as a general rule, that an accused

person has the absolute right to lead all relevant evidence in his defence. He is not subjectto discretionary control by the court, which has no power to exclude such evidence on the

ground that it may prejudice a co-defendant or because it was obtained by improper orunfair means. This point was recently re-affirmed in Lobban v. The Queen [1995] 1 W.L.R.

877. As Lord Steyn explained, at p. 889B, the principled objection to the argument thatthere is a discretion to exclude such evidence is that it conflicts with a defendant's absolute

right, subject to considerations of relevance, to deploy his case asserting his innocence ashe thinks fit. Thus the trial judge does not have a discretionary power, as between co-

defendants, to exclude relevant evidence on the ground that he is choosing the course

which involves the lesser injustice as between the defendants. But there was no suggestionin that case that the statement by the co-defendant which, in part, was self-incriminating

had been obtained from him by unfair means or was other than voluntary. It is at least open

to question whether the rule extends to a case where the evidence which the defendantwishes to put in evidence consists of a confession which was made by a co-defendant in thecircumstances which section 76(2) of the Act of 1984 describes. While it would appear not

to be accurate to describe such a confession as irrelevant, in a case where the defendant's

case is that the offence was committed by the co-defendant, the circumstances in which it

was obtained may be said to have been such as to render it worthless for all purposes,whoever it is who seeks to rely on it. On this view it would be a proper exercise of his

discretion by the trial judge to exclude such evidence even although the other defendantwished it to be put in evidence.

Section 78 of the Act of 1984, on the other hand, is a provision of a different character.This is the provision under which, as Mr. Harman Q.C. for the Crown pointed out, the trial

judge in this case would be likely to have held that the statements to the police ought not tobe admitted in evidence if the prosecution had sought to lead that evidence. But once

counsel for the co-defendant had made it clear that he wished to lead that evidence fromthe police officers, the trial judge was faced with a situation to which section 78 makes no

reference. That section refers only to evidence on which the prosecution proposes to rely. It

does not confer a discretion on the trial judge to exclude evidence of the kind which itdescribes on which a co-defendant wishes to rely.

The Court of Appeal approached this matter on the assumption that the trial judge hadan overriding discretion to exclude the evidence on the ground of unfairness: Russell L.J.

[1996] 2 Cr.App.R. 335, 343E. They held that the exercise of the judge's discretion was not

in any way flawed. It was not suggested in this case that the confession was obtained incircumstances which would have rendered it inadmissible at the Crown's instance under

section 76(2)--Russell L.J. observed, at p. 341D, that it was not suggested that it was other

than voluntary, which I take to be another way of saying the same thing. So I agree withthe Court of Appeal that the trial judge did not err in admitting that evidence. It wouldperhaps be more accurate to say that he had no discretion to do otherwise, as this was

relevant evidence on which the co-defendant wished to rely as part of his case, and therewere no grounds for taking the view that it was evidence on which no reasonable jury couldrely because it was worthless evidence. I would not wish to be taken as being of the view

that a request by a co-defendant to be allowed to bring out evidence of a confession which

had been obtained in breach of the Code of Practice should be acceded to in allcircumstances. But this is a point on which we did not hear argument, and it is notnecessary to reach a view upon it in order to reach a decision in this case.


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The certified question does not, in my opinion, sufficiently analyse the issues which have

arisen in this case. It does not distinguish between confessions which are inadmissible on

grounds of oppression or unreliability and confessions which are held to be inadmissible onother grounds, and it approaches the matter as if it can be resolved simply by considering

whether to admit the evidence would offend the rule against hearsay. I would thereforedecline to answer it. But, as I agree with the way in which the Court of Appeal have

disposed of this case, I also would dismiss the appeal.

LORD HUTTON

My

House of Lords R v Myers

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Transcript of House of Lords R v Myers