This appeal raises a short but difficult point. Where the guilt of another must be proved to found a case against a defendant, can that guilt be proved by evidence otherwise inadmissible against the defendant?

On 3^rd July 2001 at the Central Criminal Court, Paul Ali Hayter was convicted of murder following a trial presided over by the Recorder of London. He appeals against conviction with leave of the Full Court.

The facts can be shortly stated. On 30^th March 2000 Mario Commatteo was shot in the head at point blank range with a twelve-bore shotgun as he was leaving his home in Whyteleafe Hill in Surrey. He died instantly.

Commatteo lived with Angela Bristow. Bristow hated Commatteo and had spoken of killing him. It was alleged that she had taken out a contract with a man called Ryan who had carried out the killing at her behest and for money. It was said that the appellant was the middleman who had recruited Ryan on behalf of Bristow. Ryan, Bristow and the appellant were tried together. Although Ryan was said to have carried out the killing, all three were indicted as principals pursuant to section 8 of the Offences Against the Person Act 1861.

The case against Ryan depended entirely on out of court admissions said to have been made by him to his then girlfriend, Vanessa Salter. The evidence against Bristow came from witnesses who described her hostility to Commatteo and having heard her speak about getting someone to kill him. There was evidence that the appellant had been the conduit for Bristow’s payments to Ryan, which included that of Vanessa Salter’s son, Lee who spoke of carrying money from Bristow to the appellant. It was common ground that the evidence against the appellant (and indeed Bristow) was entirely circumstantial. It was also common ground that the case against the appellant depended upon the prosecution being able to prove that Ryan was the killer and Bristow the procurer; should the case fail against either, then the case against the appellant as the go-between would inevitably fail also.

It is unnecessary to review the facts in any greater detail since it is conceded on behalf of the appellant that subject to the one ground raised on appeal there was sufficient material to justify the appellant’s conviction.

That one ground rests upon a submission that the Recorder of London was wrong to rule that the appellant had a case to answer.

Mr Kelsey-Fry QC appearing, then as now, for the appellant had argued that since the jury could only convict Ryan on the basis of his out of court admissions there was no evidence admissible as against the appellant that Ryan was the killer. Without such evidence the case against the appellant was bound to fail.

The judge rejected the submissions. He reasoning was as follows. If the jury were satisfied on evidence admissible against Ryan that Ryan was the killer then that established fact was available to them in considering the case against the appellant. We quote from p.13C of the transcript of his ruling:

“This analysis shows that the prosecution are not using and do not seek to use the alleged confession of Ryan to confront any part of Hayter’s defence. There is thus no erosion of the fundamental evidential rule that the alleged confession of one defendant in the absence of the other defendant is not evidence against that other defendant.”

We are impressed by the judge’s reasoning and, if able to put authority on one side, would unhesitatingly agree with the conclusion at which he arrived.

However, Mr Kelsey-Fry was able to show the judge, as he was able to show us, two decisions of this court which, at first blush, might seem to support his contention and stand in a way of a finding which, to our minds, would seem to accord with first principles. The authorities cited are R v. Spinks 74 Cr App R 263 and R v. Hickey and Others (‘The Carl Bridgewater case’) unreported, transcript 30 July 1997. There is a third decision of this court which was not cited either to the judge or to us upon which Mr Kelsey-Fry might also have relied: R v. Rhodes 56 Cr App R 23. In that case the appellant and M were jointly indicted and tried together for burglary. It was not disputed that they were in each other’s company during the whole of the material time. Part of the case against M was an out of court statement implicating the appellant. After warning the jury that the statement could not be evidence against the appellant the chairman of quarter sessions invited the jury first to consider the case against M in the light of his alleged admission and then if satisfied of his guilt to consider the case against the appellant on the footing that the two men were together at the material time. Both M and the appellant were convicted. The court accepted a submission that by allowing the jury to have regard to the guilt of M, if such was their finding, in order to place the appellant at the scene was, in effect, to nullify the proper direction that M’s alleged admission made in the absence of the appellant was not evidence against the appellant. In giving the judgment of the court Edmund Davies J (as he then was) stated:

“The matter may be quite simply tested in this way. If M had already been separately tried and convicted, in the later trial of Rhodes could proof of M’s conviction be admitted and (if so), by coupling this with evidence that the two men spent the evening together, would this be sufficient to justify the conviction of Rhodes even though he asserted that they had committed no crime? The question in our judgment, permits only a negative answer. Indeed, any other answer would make for great injustice, for in the circumstances postulated Rhodes would have had no opportunity of challenging any of the evidence given in the trial of M. It is true that, in the present case, the two men were jointly tried, but even so the position of the appellant was no better than it would have been if they had been tried separately, for he could make no effective challenge of the police evidence with regard to the admission alleged to have been made in his absence, and no cross examination of M was called for on his behalf, since M denied ever having made the alleged as well as denying the offence charged.”

The second decision in point of time is that of this court in Spinks. In that case the appellant was alleged to have received and concealed a knife which had been used by a man called Fairey to stab someone in the street. He was charged with doing an act with intent to impede apprehension or prosecution of another contrary to section 4(1) of the Criminal Law Act 1967. Fairey had made a statement to the effect that he had been responsible for a stabbing and had handed the knife to the appellant. It was accepted that the only evidence that Fairey had stabbed anyone came from his own admissions to the police made in the absence of the appellant. The court held that the case against the appellant should have been withdrawn from the jury at the conclusion of the Crown’s evidence. In giving the judgment of the court Russell J (as he then was) referred to the Crown’s contention that Fairey’s admission was in some way “evidence in the case” and continued:

“As it seems to this Court, the fallacy of that argument can be demonstrated in a number of ways. If Fairey had pleaded guilty and had not given evidence against the appellant, or if the appellant had been indicted and tried separately, could the Crown have relied upon Fairey’s conviction to prove the first ingredient of the offence? The answer must be in the negative. The appellant can be in no worse position because he was being tried alongside Fairey. In the judgment of this Court the offence with which the appellant was charged and the means of establishing it do not provide any exception to the universal rule which excludes out of court admissions being used to provide evidence against a co-accused, whether indicted jointly or separately.”

In Hickey and Others one of the defendants, Molloy, had made a statement to the police admitting that he had been at Yew Tree Farm, the scene of the murder at the relevant time but claimed to have played no part in the killings. Another defendant, Robinson, had told the police that he was out thieving at the time of the murder in the company of Molloy. At trial, however, and following the service of alibi notices both had claimed to have been at home. At trial Molloy’s original statement to the police was used in cross-examination of the others. The court eventually concluded that the statement of Malloy should not have been admitted at all and in any event it was improper to use the statement to contradict the accounts given by other defendants.

As we have said Spinks and Hickey and Others were cited before the Recorder of London. The learned judge sought to distinguish Spinks on the basis that the issue between the prosecution and Spinks had been whether he knew that the knife had been used by Fairey to stab someone else. That, we believe, is a misreading of the judgment. The court in Spinks was concerned with the prior question of whether or not the Crown could prove against Spinks that Fairey had committed the offence with which he was charged on the basis of out of court admissions made by Fairey. The learned Recorder distinguished Hickey and Others on its facts. In comparing the present case with Hickey the learned Recorder said this:

“I hope I can define and illustrate the difference by a brief analysis. In Hickey, Robinson and Molloy, the issue between Robinson and the Crown was whether Robinson was at Yew Tree Farm or whether, as he said, he was at home in bed with his girlfriend at the time of the murder. The Crown in seeking to prove that Robinson was at the scene of the murder plainly used the Molloy confession as though Molloy was an additional prosecution witness. In confronting Robinson’s alibi the effect was that there was a likely danger of the jury allowing a consideration of the Molloy confession to colour their consideration of Robinson’s case.”

In that instance we consider that the distinction made by the learned Recorder was entirely valid. A similar distinction might perhaps be made between the present case and that of Rhodes.

However, it is interesting to note that in both Spinks and Rhodes the court chose to test its conclusion in the same way by asking whether if the parties had been tried separately proof of Fairey’s conviction in the one case and of M in the other could have been admitted in the trials of Spinks and Rhodes. It that connection it is perhaps worth remembering that at the time of both decisions evidence of a prior conviction would not have been admissible in separate criminal proceedings to establish the truth of the underlying allegation (see Hollington v. F Hewthorn & Co Ltd 1943 1 KB 587). If it is necessary to say so, the same it true of the time when the trial of Hickey and Others took place.

Section 74(1) of the Police and Criminal Evidence Act 1984 provides that:-

“In any proceedings the fact that a person other than the accused has been convicted of an offence by or before any court in the United Kingdom or by a service court outside the United Kingdom shall be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that that person committed that offence, whether or not any other evidence of his having committed that offence is given.”

It seems to us that section 74 removes the foundation for the decisions in Spinks and Rhodes. Now it is unquestionably the case that a prior conviction would be admissible to prove, were it relevant to do so, that M or Fairey had committed the offences with which they had been charged. Similarly, in the present case the conviction of Ryan would be admissible in any retrial of the appellant. Is it sensible, in those circumstances, to hold that a jury cannot have regard to a conclusion which it had reached on evidence presented in a joint trial in order to prove the existence of a fact that is a pre-condition in law to establishing the guilt of the secondary party? We think not.

The appellant did not give evidence. The judge summed up in terms consistent with his ruling. No criticism is made of any other aspect of his conduct of the trial. In those circumstances we conclude that the conviction is safe and the appeal must be dismissed.