Judgment - Regina v. Myers  continued

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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 to establish 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 are spoken to by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost."

     In Turner (Bryan) 61 Cr.App.R. 67, where it was sought to produce evidence of a statement 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 the learned judge in refusing to admit in evidence the statement made to a third party by 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 in this case that hearsay evidence is admissible in a criminal case to show that a third party who has not been called as a witness in the case has admitted committing the offence charged. The idea, which may be gaining prevalence in some quarters, that in a criminal trial the defence is entitled to adduce hearsay evidence to establish facts, which if proved would be relevant and would assist the defence, is wholly erroneous."

     In those two cases it was the statement of a third party which was held to be inadmissible. 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 to the 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 took place, Devlin J., said that questions as to previous character and convictions were not 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 the prosecution seeks to ask them even if they are relevant in circumstances where the prejudice 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 prejudices anyone else."

     A similar principle was stated in Reg. v. Bracewell (1978) 68 Cr.App.R. 44 where Ormrod 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 that marginal cases can be dealt with by the exercise of discretion. 'When in doubt, exclude,' is a good working rule in such cases. But when the evidence is tendered by a co-accused, the test of relevance must be applied, and applied strictly, for if irrelevant, and therefore inadmissible evidence is admitted, the other accused is likely to be seriously prejudiced, and grave injustice may 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 prejudice to the other accused.

     To similar effect is a statement in Lowery v. The Queen [1974] A.C. 85 in the Privy 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 relied on by the co-accused to show that his version of the facts was more probable than that 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 is precluded from leading evidence that does no more than show that the accused has a disposition or 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 proof of guilt, but quite another to say it is excluded when tendered by the accused in disproof of his own guilt. We see no reason of policy or fairness which justifies or requires the exclusion of evidence 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 that consisted in blaming the co-defendant.

     An analogous point arose in Murdoch v. Taylor [1965] A.C. 574 in relation to section 1(f)(iii) of the Criminal Evidence Act 1898 which provides that a person charged 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 the proviso 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 previous convictions.

     "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 the man who is giving evidence against him is unworthy of belief; and to support that assertion by proof of bad character. The right to do this cannot in my opinion, be fettered in any way per Lord Donovan, 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 a matter, 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 piece of wood, it was relevant for the Rowsons to establish that at no time did any of them have the piece 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 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 to cross-examine on the basis of a statement which had been ruled, or conceded, to be inadmissible 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 annunciated in Murdoch v. Taylor [1965] A.C. 574 and Reg. v. Miller [1952] 2 All E.R. 667. In Lui Mei Lin a defendant was not allowed to cross-examine a co-defendant on a statement incriminating the defendant which the judge had ruled inadmissible as part of the prosecution case because it was not made voluntarily. Having referred to section 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 these circumstances is, in their Lordships' opinion, relevancy. If one co-accused has given evidence incriminating 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's case and that its only relevance is to test the credibility of the evidence which the maker of the statement 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 of Session in the opinion given by the Lord Justice (Ross) Clerk accepted the view of Lord 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 to the 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 is a statement against interest, and is thus more likely to be true than false . . . An accused is a party to proceedings in a way in which an incriminee is not; he is entitled to the full protection which 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 drawn between statements by parties to the proceedings and by third parties, the former, if relevant 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 of whether the defendant committed it or not: this is so whether the other person is a co-defendant who gives evidence, a co-defendant who exercises his right not to give evidence, a co-defendant who 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 view in Blastland that statements by third persons are not admissible there is a long line 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 to put 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 it appears 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 could lead to great unfairness.

     This seems to me to be consistent with the opinion of the Privy Council of Lobban v. 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 request of one defendant to exclude evidence tending to support the defence of another defendant] "is that it conflicts with a defendant's absolute right, subject to considerations of relevance, to deploy his case asserting his evidence as he thinks fit."

     This seems to me the position whether or not the judge and the Court of Appeal in Reg. v. Beckford and Daley were right to hold that section 76(1) of the Act of 1984 only applies to evidence which the prosecution seeks to adduce, a question which is still 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 by provisions similar to section 76 of PACE, but taking into account the standard of proof applicable to a defendant." (Recommendation 19 of The 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 test the credibility of the evidence which the maker of the statement has given against his 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 the Rowsons' 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 issue and it does not cease to be admissible because it does so. Indeed so long as it is relevant 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 his confession 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 person to whom a statement is made as to the terms of the confession even though, since the 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 the Privy Council respectively stressed that the judge must tell the jury that weight should 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 for a jury to make this distinction may not always be easy as has been fully recognised 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 allowing for 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 be allowed 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 to Quartey'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 be allowed 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 Act 1865 (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 the confessions were obtained in the circumstances referred to in section 76(2) of the Act 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 from doing so.

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

Myers' appeal should accordingly be dismissed.



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 this appeal.


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 also dismiss the appeal.


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 on the facts of this case but which I should like to set out in some detail in order to define 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 importance relating 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 only of 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 been taken.

     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 course of 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 Police and 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 from the 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 of the 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 give evidence, so the only way in which the other defendant could be sure that her admissions would be put in evidence was through the evidence to be given by the 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 Act 1984 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 of the Act did not affect the matter so far as the co-defendant was concerned. In their opinion 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 offend any 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 also necessary 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 a joint 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 of leading 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 was taken 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 upon them 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 a statement that was relevant to the trial. The statement in question in that case had been 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 inconsistent with 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 to be 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 of the 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 admissible or it is not admissible . . . If it is not admissible, nothing more ought to be heard of it. . . ." 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 it was relevant to the credibility to be attached to evidence given by the defendant on an issue which was material to their defence.