Y, R v

In a case of murder where man Y was on trial alone, the Crown applied to the trial Judge to admit hearsay evidence consisting of a confession made by man X, who had subsequently pleaded guilty, which confession implicated the defendant Y. The application was made under s 114(1)(d) Criminal Justice Act 2003. The Judge was persuaded that s 114(1)(d) had no application to a hearsay statement contained in a confession of another person, and accordingly ruled that the Crown’s application did not fall to be considered on its merits. Against that ruling, the Crown seeks to bring an interlocutory appeal under s 58 Criminal Justice Act 2003.

There are two issues of law for us:

The man (X) whose confession the Crown wants to prove is not, it is agreed, a co-accused of the Defendant. He and the Defendant are accused of complicity in the same offence, but they do not face trial together, X having pleaded guilty to murder some time ago. Indeed, as it happens, in this case they have never been charged on the same indictment. Moreover, the application to admit X’s confession is made by the Crown and not by a co-accused. It follows that s 76A Police and Criminal Evidence Act 1984 has no application and is not in issue before us, as both counsel agree. We are therefore not concerned with the question how far statements associated with a confession are to be regarded as a confession automatically admissible in the hands of a co-accused: see Finch [2007] EWCA Crim 36; [2007] 1 Cr App Rep 33.

Much more significantly, we are not asked to decide whether this hearsay evidence should in fact be admitted. Nor could we decide that question. Because the Judge ruled that s 114(1)(d) was not available, he never got to the merits of the application. He never considered whether it is or is not in the interests of justice that this hearsay should be admitted, in this case where the Crown concedes that, without it, it does not have a prima facie case against the defendant. Since that latter question has not been ruled upon by the trial Judge, no question of an appeal (by either side) against a ruling upon it can yet arise. Moreover we simply do not have the material to decide this question. We have not seen the witness statements comprising the Crown case, or any evidence in this case, except the hearsay statements which are in issue in this interlocutory appeal. We are confined by the appeal before us to the question of principle whether s 114(1)(d) is altogether ruled out because the hearsay is contained in a confession. That is one of the common features of an interlocutory appeal.

In summarising the factual background, we are conscious that we have very limited material. What we set out is the Crown’s case only. The murder was the result of a street fight between youths. The deceased was walking with his girlfriend. He was accosted, she says, by two youths. There was an argument, at that stage verbal only. The deceased was left angry, to the extent that he refused to get into a car and leave the street, but rather insisted upon walking on. No-one, however, suggests that he brought about the violence which ensued, as distinct from responding to it.

A little further on, the deceased was confronted again by the same two youths, and this time one of the assailants (said to be Y) went for him with a cosh. The deceased responded and a fight ensued. Y called for X, who was carrying a knife, to stab the deceased. X did so and occasioned fatal wounds.

X was arrested nine days later. He refused, as he was entitled to do, to answer questions in interview by the police. But in due course he pleaded guilty to murder, accepting that he was the second assailant, and that he stabbed the deceased.

Prior to arrest, X is said by a girlfriend (or perhaps ex-girlfriend) to have had two conversations with her about his activities generally and this offence in particular. Her witness statement asserts that in both conversations he admitted to her that he had killed someone. And she asserts that in the second conversation he told her that the other assailant had been Y.

When he pleaded guilty to murder, X advanced a basis, handwritten by counsel or solicitor, though unsigned, which in the end was not put before the Judge. That document adhered substantially to the same account which the girl says he had previously given, namely that he did not start the altercation but intervened at the request of the other, and was the one who stabbed the deceased. In that document, the first assailant is referred to in all places but one as ‘the first youth’. However, in one place he is named as Y. A subsequent, second written basis of plea was then prepared, signed by X, and put before the Judge. In that second document, the other assailant is not named.

X had not made any written witness statement. The Judge was told that he had expressed himself unwilling to do so or to give evidence. No attempt had been made to compel him to court as a witness for the Crown.

Y was arrested soon after the event. He made no comment in interview. He was not charged, and still had not been charged when X pleaded guilty. Subsequently he has been charged and sent for trial. The indictment charges murder, and there is a second count of assault occasioning actual bodily harm upon the girlfriend of the deceased as part of the same incident. As we understand it, Y’s case is that he denies that he was there at all.

The Crown’s hearsay application was to admit under s 114(1)(d):

Part 9 of the Criminal Justice Act 2003 creates two new species of interlocutory appeal in criminal cases. Both are open only to the Crown. The first is found in sections 58-61; the second in sections 62-67. Both appeals require the leave either of this court or the trial Judge. The first has been brought into effect. The second has not, nor has any date for commencement been set.

The Defendant’s submission that there is no right of appeal depends on the argument that this ruling fell within ss 62-67, which have not been brought into force, rather than ss 58- 61 which have.

Section 58 provides, so far as material, as follows:

“(1)

This section applies where a judge makes a ruling in relation to a trial on indictment at an applicable time and the ruling relates to one or more offences included in the indictment.

(2)

The prosecution may appeal in respect of the ruling in accordance with this section.

…..

(7)

Where –

(a)

the ruling is a ruling that there is no case to answer, and

(b)

the prosecution, at the same time that it informs the court in accordance with subsection (4) that it intends to appeal, nominates one or more other rulings which have been made by a judge in relation to the trial on indictment at an applicable time and which relate to the offence or offences which are the subject of the appeal,

that other ruling, or those other rulings, are also to be treated as the subject of the appeal.

(8)

The prosecution may not inform the court in accordance with subsection (4) that it intends to appeal unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence if either of the conditions mentioned in subsection (9) is fulfilled.

(9)

Those conditions are –

(a)

that leave to appeal to the Court of Appeal is not obtained, and

(b)

that the appeal is abandoned before it is determined by the Court of Appeal.”

By sections 58(12) and 61(3), which it is not necessary to set out fully, the defendant must be acquitted if leave to appeal is not obtained, the appeal is abandoned, or if it fails when heard. Those provisions mirror the requirement for a section 58 appeal that the Crown must agree formally that if it does not succeed, the acquittal of the defendant must follow. There is also a residual power under s 61(4) and (5) for the Court of Appeal to order acquittal even if the appeal succeeds, but only if it is necessary in the interests of justice to do so.

Section 62, so far as material, provides:

“(1)

The prosecution may, in accordance with this section and section 63, appeal in respect of –

(a)

a single qualifying evidentiary ruling, or

(b)

two or more qualifying evidentiary rulings.

(2)

A qualifying evidentiary ruling is an evidentiary ruling of a judge in relation to a trial on indictment which is made at any time (whether before or after the commencement of the trial) before the opening of the case for the defence.

….

(9)

In this section –

‘evidentiary ruling’ means a ruling which relates to the admissibility or exclusion of any prosecution evidence,

‘qualifying offence means an offence described in Part 1 of Schedule 4.

…..

(11)

Nothing in this section affects the right of the prosecution to appeal in respect of an evidentiary ruling under s 58.”

By s 63 leave to appeal under section 62 may not be given unless the ruling(s) ‘significantly weaken’ the prosecution case in relation to the count(s) under consideration. The effect of section 66 is that whether the appeal under section 62 succeeds or fails, the trial is either resumed or begun afresh. The defendant cannot be acquitted unless the Crown indicates that it does not intend to continue with the prosecution.

We accept that the new section 58 right of appeal, which is in force, must be construed strictly. It is a significant shift of rights towards the Crown as against an individual.

For s 58 the critical condition which must be met before any appeal can be launched is that contained in s 58(8). In effect the Crown is bound to accept, as the price of bringing an interlocutory appeal under s 58, the consequence that if it fails the Defendant must be acquitted (as well as the possibility that this Court may order such acquittal on the grounds that it is necessary in the interests of justice to do so). It is no doubt this s 58(8) condition which led to the use of the expression "terminating ruling" during the consultation process preceding this part of the Act and its passage through Parliament. It is no doubt true that the Crown will not ordinarily embark on an appeal against a ruling which requires the giving of the s 58(8) undertaking, unless the ruling, if effective, will bring the case to an end. But whilst the expression "terminating ruling" may have, and have had, its convenience as shorthand, its use is best avoided when considering how the Act must be construed, for it appears nowhere in the statute. For that reason, we do not think that it is helpful to try to answer the jurisdictional question by asking whether or not the ruling presently in question would bring the prosecution to an end. As a matter of law, it would not; in practice, unless the Crown altered its position, it would. It would not in law because the Crown could continue with the trial and seek to persuade the Judge that other evidence establishes a prima facie case against the Defendant Y. That in this case the Crown told the Judge that it did not feel able to argue that there is a prima facie case unless the hearsay evidence goes in does not alter that legal position. However, no doubt if that is the Crown's view the effect of the ruling, in practice if not in law, would be to bring the case to an end.

For the defendant, the submission of Mr Griffiths QC is that the ruling in this case that hearsay evidence is not admissible is not a ruling within s 58(1) because whilst it is a ruling in relation to a trial on indictment, it is not one which 'relates to one or more offences included in that indictment'. Rather, he submits, this is an 'evidentiary' ruling; such, he argues, falls only within s 62 and following, and not within s 58. Section 58, in being strictly construed, should, he submits, be confined to rulings which are in similar case to rulings that there is no case to answer, and should not include rulings which are within section 62.

The expression ‘evidentiary ruling’ is defined in s 62(9) of the Act. We accept that this ruling was squarely within that definition, because it was a ruling that Crown evidence was not admissible. It is therefore a ruling against which the Crown will be enabled to appeal if, despite the impact on the currency of trials and the work of this Court, section 62 and following are ever brought into force. But it does not follow from the fact that this is an evidentiary ruling that it is not also a ruling which 'relates to one or more offences included in the indictment', and thus is within s 58 if the Crown is prepared to give the s 58(8) agreement that if the appeal fails the Defendant must be acquitted. As a matter of ordinary language this clearly is a ruling which relates to the counts on the indictment. It relates to them because it is a decision about what evidence is admissible for the Crown in its attempt to prove them. The matter is made quite clear by section 62(11) which expressly contemplates that an evidentiary ruling within section 62 may also be the subject of a section 58 appeal. Although that section is not in force, its appearance in the statute as passed by Parliament is a powerful aid to construction.

There is thus no reason why a single ruling should not qualify both as a s 58 ruling in relation to a count on the indictment (assuming the Crown to agree to acquittal if the appeal fails) and also as an evidentiary ruling under s 62, in respect of which the right of appeal will be broader if implemented. In the ordinary language of the criminal trial, many rulings made daily by trial judges can properly be described both as relating to counts on the indictment and as being evidentiary. The difference between the two types of interlocutory appeal lies in the s 58(8) condition. Given the enormous practical difficulties created by interlocutory appeals for the work of this court and, much more importantly, for the progress of trials before juries in the Crown Court, it is not surprising that the former group of provisions should have been brought into force and not the latter.

That construction of s 58(1) is supported by the terms of s 58(7)( b). s 58(7) provides for the Crown, if it is appealing a ruling that there is no case to answer, to ‘piggy-back’ onto that appeal a challenge also to any other ruling made in the course of trial which the Crown nominates. It is accepted before us that one point of that subsection (among, it may be, others) is to enable the Crown to deal with the familiar situation where the Judge first excludes evidence which the Crown wants admitted, and then, because of its absence, properly finds that there is no case to answer. In that event, the Crown can, provided it complies with s 58(8), challenge not only the no case decision, but also the evidentiary ruling which preceded it. But in achieving this result, s 58(7)(b) defines the ‘piggy-backed’ evidentiary ruling in terms substantially identical to those of s 58(1):

“one or more rulings which have been made by a Judge in relation to the trial on indictment at an applicable time and which relate to the offence of offences which are the subject of the appeal.”

In other words, the ‘piggy-backed’ evidentiary ruling is treated by the statute as a ruling which is ‘in relation to the trial on indictment’, and which ‘relates to the offence or offences…’ If such an evidentiary ruling is within s 58(7)(b), it follows that it is also within s 58(1). Thus, such an evidentiary ruling is within both s 58 and s 62. And if that kind of evidentiary ruling is within both s 58 and s 62, there is no reason why other evidentiary rulings should not also be within both sections. Furthermore, section 58(7) identifies rulings that there is no case to answer as just one example of rulings that may be appealed under section 58; that is inconsistent with Mr Griffiths’ submission that section 58 is limited to rulings equivalent to those of no case.

In Clarke [2007] EWCA Crim 2532 this court accepted that an interlocutory appeal lay under s 58 against a refusal by the Judge to grant any further adjournment to the Crown to enable it to make yet further attempts to get its principal witness to court. The present point did not arise for decision. It is, however, to be observed that it was held that what was essentially a case management decision, to refuse adjournment, was capable of giving rise to an interlocutory appeal if the Crown was ready to give the section 58(8) agreement to acquittal in the event of failure in this court.

For those reasons, we conclude that this ruling was within s 58(1) and that, since the Crown has volunteered the s 58(8) agreement, an appeal lies to this court with leave. The Judge granted leave. We must accordingly determine the appeal on its merits.

Section 114(1) Criminal Justice Act 2003 provides as follows:

“(1)

In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if, -

(a)

any provision of this Chapter or any other statutory provision makes it admissible,

(b)

any rule of law preserved by section 118 makes it admissible,

(c)

all parties to the proceedings agree to it being admissible, or

(d)

the court is satisfied that it is in the interests of justice for it to be admitted.”

Section 114(2) goes on to list particular (but non-exclusive) factors to which the judge must have regard if he is considering admitting hearsay evidence under s 114(1)(d) and is addressing the question whether it is in the interests of justice to do so. As we have said, the Judge did not get to that issue. That was because he accepted the argument of Mr Griffiths QC which was, and is here, that section 114(1)(d) is ruled out as even a possible route for the admission of hearsay contained in a confession. That consequence, says Mr Griffiths, follows from the terms of section 118(1), paragraph 5, when read with section 114(1)(b).

Section 118 has the side heading “Preservation of certain common law categories of admissibility”. Subsection (1), so far as material, provides as follows:

“The following rules of law are preserved.

…..

5.

Any rule of law relating to the admissibility of confessions or mixed statements in criminal proceedings.”

The other paragraphs of subsection (1), which we need not set out in full, itemise a number of other rules of common law under which hearsay evidence was admissible. Examples are the rules relating to statements admissible as part of the res gestae, those relating to published works of a public nature and public documents, and those relating to evidence of reputation or character. All the rules itemised in section 118(1), and preserved by it, were rules creating exceptions to the general proposition of common law that hearsay was inadmissible.

Mr Griffiths submits that in relation to confessions the common law rule was clear. A confession was admissible, as an exception to the general exclusion of hearsay, but the exception extended only to make it admissible in the case of the person making the confession. He cited authority for that proposition, but there is no need to set it out. To it, there was at least one common law modification, established by the House of Lords decision in Myers (Melanie) [1998] AC 124 and now largely reflected in section 76A Police and Criminal evidence Act 1984, namely that one co-defendant could prove the confession of another co-defendant and rely on it in his own case as well as using it to incriminate the maker. There were also the special rules, also preserved by s 118(1), relating to admissions by agents and cases of common enterprise. But we unhesitatingly accept that the general common law rule was as Mr Griffiths states it.

The kernel of Mr Griffiths’ argument in this case is that that is the rule which section 118 preserves. Section 118 preserves, he says, not only the rule that a confession is admissible in the case of its maker, but also the concomitant proposition that it is not admissible in the case of anyone else.

The argument which Mr Griffiths advances in this case appealed to Fulford J in Ibrahim (unreported, Woolwich Crown Court 4 June 2007), where the Judge had to deal with a difficult application by one defendant in a multi-defendant case with ‘cut-throat’ defences. There, Defendant A sought to rely on what Defendant B had said in interviews, which amounted to confessions, (i) to exonerate himself and (ii) to implicate Defendants C, D and E. The Judge largely propounded the argument now advanced, albeit it had not been raised by any Counsel in the case. He said (at paragraph 22):

“The interests of justice provision in s 114(1)(d) is incompatible with the common law rule. The latter rule is absolute in prohibiting the use of a confession against a defendant who was not present when it was made, whereas a discretionary decision under s 114(1)(d) admitting confession evidence would result in the confession becoming generally available for use against the defendants who were not present when the incriminating out of court statement was made.”

Mr Gritffiths supports this argument, as did Fulford J, by the citation of a passage from the speech of Lord Rodger in Hayter [2005] UKHL 6; [2005] 1 WLR 605 at paragraphs 55 and 56:

“…..the Law Commission conducted a wide survey of the law and did not support any change in relation to Crown evidence of extrajudicial admissions of co-defendants in criminal trials. In their report on Evidence in Criminal Proceedings: Hearsay and Related Topics (Law Com No 245 (1997), para 8.96, they said:

‘A hearsay admission is still evidence only against the person who made it, and a jury must be warned accordingly. A number of our respondents thought it extremely important that this principle be retained, and we agree’

……Even more important, Parliament agreed with, and gave effect to, the Law Commission’s conclusion. Section 118(5) [sic] of the Criminal Justice Act 2003 specifically preserves any common law rule relating to the admissibility of confessions or mixed statements in criminal proceedings.”

Hayter was decided under the common law, prior to the Criminal Justice Act 2003. The issue in Hayter was quite different from the issue in the present case. No one there sought to assert that the confession of A could be evidence against B. In Hayter, the Crown sought (i) to prove the guilt of A by way of his unequivocal confession that he was guilty, and (ii) once that was done to invite the jury to say that, on the facts, if A was guilty, then so must B be. The issue before the House was whether in so reasoning the Crown in effect wrongly by-passed the common law which prevented the confession of A from being direct evidence in the case of B. The decision of the House of Lords was that it did not. Their Lordships held that since section 74 Police and Criminal Evidence Act 1984 permitted the Crown to prove the guilt of A by his conviction, and from that to invite the jury to say that it followed on the facts that B must also be guilty, it was by analogy entitled to invite the jury to reason similarly from guilt proved against A via his confession. Their Lordships were clear that that could only be done providing that the jury was directed that whilst the guilt of A, if established, might be evidence in the case of B, the confession of A, and anything said in it about B, was not. Thus the jury must be directed that in considering the case of B, it must disregard the confession of A; it was only if the jury was sure that A was guilty that it could use that fact as evidence against B.

Lord Rodger dissented in this result. His minority opinion was that such reasoning effectively amounted to admitting the confession of A in evidence against B. That was contrary to the decision of the House. Insofar as the extract cited amounts to a re-statement that at common law the exception to the general inadmissibility of hearsay in the case of a confession was limited to making the confession evidence only in the case of its maker, it is uncontroversial. Insofar as it draws conclusions from the report of the Law Commission and asserts the effect of Parliament’s enactment of the Criminal Justice Act 2003, it is necessary to say a little more. What needs to be said is the same whether one starts from the dissenting opinion of Lord Rodger, or from the majority decision, in Hayter.

The provisions of Part 1, Chapter 2, of the 2003 Act, as to hearsay, are closely modelled on the recommendations of the Law Commission. To an extent, therefore, the reasoning of the Commission and its assessment of what it wished to achieve are relevant to construction of the Act. There are two qualifications to that proposition. First, whilst the Commission’s assessment of the mischief at which the provisions of the Act were aimed is directly relevant when, in construing the Act, one asks what was the mischief it set out to meet, the Commission’s predictions about how its proposed new provisions should be applied cannot be conclusive on the question of what the Act means, nor how it is now to be applied. Secondly, the Act as enacted does not precisely follow the Commission’s draft Bill.

Paragraph 8.96 of the Commission’s report, quoted by Lord Rodger (see our paragraph 33 above), is to be found in its discussion of the then current common law rules of evidence. But very shortly afterwards, at paragraph 8.99 the Commission directly addressed the issue of reliance upon the confession of a non-defendant. It said this:

“Under our proposals a relevant third party confession could be admitted if the confessor has died, is too ill to attend court, cannot be found or it outside the UK: such statement would be automatically admissible…..Where the confessor is too frightened to testify, the confession could be admitted with the leave of the court. In other cases – for example where the confessor’s whereabouts are known but he or she disobeys a witness order, or the confessor testifies but refuses to answer questions which may incriminate him or her – the confession will still be unavailable to the court. In such cases, the defence would have to fall back on the safety valve in order to have evidence of the confession admitted.” [emphasis supplied]

The ‘safety valve’ there referred to was the proposed provision which became section 114(1)(d). In the part of its report dealing with this proposal, the Commission gave the advice that:

“An integral part of our preferred option is a limited inclusionary discretion to admit hearsay which falls within no other exception. Its purpose would be to prevent potential injustice which could arise though the exclusion of hearsay evidence. We envisage that it would only be used exceptionally.”

(para 8.133) and

“…our purpose is to allow for the admission of reliable hearsay which could not otherwise be admitted, particularly to prevent a conviction which that evidence would render unsafe.”

(para 8.136)

When it came to give examples of the operation of its proposed ‘safety valve’, the Commission included this illustration:

“D is charged with assault. X, who is not charged, admits to a friend that he, X, committed the assault. D and X are similar in appearance. X’s confession is inadmissible hearsay unless the safety valve is used.”

(para 8.147)

Those extracts from the Commission’s report, which are by no means the only ones which might be cited to similar effect, demonstrate conclusively that the aim of the Commission, in proposing the enactment of what has become section 114(1)(d), was to provide a residual judicial power to admit hearsay evidence which would not otherwise be admissible. And the example given at paragraph 8.147 demonstrates that the Commission contemplated that one of the situations in which that residual power would be capable of being exercised is where the hearsay is contained in a confession by a non defendant, which would not be admissible at common law, nor for that matter under any other provision of the proposed Act, nor under s 76A Police and Criminal Evidence Act, also the product of the Commission’s work and introduced by the Criminal Justice Act 2003.

With that background, we turn to our primary task, which is not to analyse the Commission’s report, but to construe the statute.

Section 114(1) replaces the common law rule that hearsay is prima facie inadmissible with the rule that hearsay is admissible “if but only if” it falls within one or other of subparagraphs (a) to (d). It is perfectly clear that those subparagraphs are alternatives, that is to say that hearsay is admissible if it falls within any one of them. That is apparent from the use of the word ‘or’ linking the final two subparagraphs, which means, grammatically, that the last and each of the foregoing conditions is alternative to the others.

The scheme of the four subparagraphs is then this. Subparagraph (a) refers to hearsay made admissible by specific provisions in the new Act. Examples, selected at random, include the new provision in section 116 making always admissible the statement of a witness who has died, and the provision in section 119(2) making a previous witness statement proved as an inconsistent statement admissible as to the truth of its contents.

Next, subparagraph (b) makes admissible any evidence which is admissible under a rule of law preserved by section 118. Thus, section 118 is expressly stated to be concerned with the admissibility of material, not with its inadmissibility. As we have previously stated (see paragraph 29 above) section 118 preserves rules by which hearsay evidence was admissible by way of exception to the general common law exclusion of hearsay.

Thirdly, subparagraph (c) introduces a wholly new idea, namely that hearsay evidence may become admissible if the parties agree. At common law, hearsay was inadmissible whether the parties agreed or not.

And fourthly, subparagraph (d) introduces a second wholly new idea, namely that the Judge may admit otherwise inadmissible hearsay evidence if he is satisfied that it is in the interests of justice that he should do so.

It follows that hearsay contained in a confession is, in law, as open to admission under subparagraph (d) as any other hearsay. There is no basis on which section 114(1) can be read so as to subordinate subparagraph (d) to (b). If that had been intended, the Act would have said so. And in any event, the rules of common law preserved by subparagraph (b) and section 118 are rules of admissibility and not of inadmissibility. That conclusion is wholly consistent with the Law Commission recommendations cited above. It does not of course follow that hearsay in, or associated with, third party confessions should routinely be allowed to be admitted under section 114(1)(d) – see below.

We respectfully take the view, accordingly, that Fulford J’s proposition, cited at paragraph 32 above, is in some danger of putting the cart before the horse and thus assuming what it seeks to prove. Explicit statutory provision prevails over the common law, not the other way round. The residual power to admit hearsay under section 114(1)(d), if the interests of justice genuinely require it, does indeed prevail over the general common law rule that hearsay is inadmissible, and thus it prevails over the particular common law rule that hearsay contained in a confession is inadmissible except against its maker. We do not dissent from the practical result to which Fulford J came in a difficult case, but only from the route to it. Nor, although the point does not directly arise in this case, are we to be taken as endorsing the proposition, which appears to be part of the reasoning in that case, that the common law permitted defendant A to rely on the out of court statements of defendant B if those statements assisted A (other than by implicating C or D). If such out of court statements themselves amounted to confessions, that result might be achieved via section 76A Police and Criminal Evidence Act 1984 (see paragraph 3 above). It they did not, they could only be admissible, as it seems to us, under section 114(1)(d), providing of course that the interests of justice test was satisfied.

Mr Griffiths alternatively submits:

In support of those alternative submissions, Mr Griffiths took us once again to the Law Commission report. He relies on paragraphs 8.133 and 8.136, which we have already set out above at our paragraph nn. The report also contains the following:

“The vast majority of respondents agreed with our provisional view that the safety-valve should be available to both the prosecution and the defence. We believe that that is consistent with principle. We do not think that there is any danger of hearsay evidence of poor quality being admitted against a defendant, nor of a principle which exists to protect a defendant being undermined, because the court will admit hearsay under the safety-valve only where it is in the interest of justice for it to be admitted.”

(paragraph 8.149; emphasis supplied)

And in illustrating what it meant by ‘a principle which exists to protect a defendant’, the Commission explained:

“Such as the principle that a confession is only admissible against its maker…..We have already considered the position where one co-accused seeks to adduce the admission of another co-accused.” (note 214 to para 8.149)

We do not think that it is possible to construe the statute in either of the alternative ways for which Mr Griffiths contends. Shortly stated, our reasons are as follows.

As to (i), what may be admitted under section 114(1)(d) is a hearsay statement; the nature of the vehicle which carries that statement (and whether it is associated with a confession or otherwise) is certainly relevant to whether it is in the interests of justice to admit it, but it is irrelevant to whether section 114(1)(d) is capable of applying to it. A bare accusation against someone, whether associated with a confession by the maker or not, is capable of falling within section 114(1)(d). It follows that if such an accusation is in fact associated with a confession by the maker, it cannot ipso facto become incapable of falling within section 114(1)(d).

As to (ii), the statute would have had to provide specifically if the rules of admissibility were to be different as between the Crown and a defendant. It does no such thing. The provisions of section 114(1) are quite clearly general in application. They govern when hearsay is admissible, irrespective of who seeks to have it admitted. Additionally, that, it is plain from paragraph 8.149 of the Commission report, cited above at our paragraph mm, is what the Commission intended.

It follows that neither the fact that the hearsay in question is an accusation against the defendant, rather than an admission against interest by the maker, nor the fact that it is the Crown which seeks to adduce it, can rule out the application of section 114(1)(d) as a matter of law. But what we certainly do accept is that those two factors, together with all other material ones, are extremely relevant to the exercise of judicial judgment under section 114(1)(d) and 114(2).

What is now s 114(1)(d) appeared in the Commission’s draft bill in a slightly different form:

“9.

In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if the court is satisfied that, despite the difficulties there may be in challenging the statement, its probative value is such that the interests of justice require it to be admissible.”

Although section 114(1)(d) as enacted does not contain the cautionary reminder, which draft clause 9 did, namely that the probative value of the out-of-court statement must outweigh the difficulties of challenging it before it will be in the interests of justice for it to be admitted, the statute as enacted is not less rigorous. That is because section 114(2) lists specific factors which must, together with any other relevant matter, be considered before addressing the question whether it is in the interests of justice for the hearsay statement to be admitted. Those specified factors are:

“(a)

how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;

(b)

what other evidence has been, or can be, given on the latter or evidence mentioned in paragraph (a);

(c)

how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;

(d)

the circumstances in which the statement was made;

(e)

how reliable the maker of the statement appears to be;

(f)

how reliable the evidence of the making of the statement appears to be;

(g)

whether oral evidence of the matter stated can be given and, if not, why it cannot;

(h)

the amount of difficulty involved in challenging the statement;

(i)

the extent to which that difficulty would be likely to prejudice the party facing it.”

As this court explained in Taylor [2006] EWCA Crim 260, section 114(2) does not mean that the Judge must hear evidence on, and make specific findings of fact about, each factor seriatim; but he must exercise his judgment in the light of consideration of all of them. Then, after those factors, and any other relevant to the particular case have been evaluated, the Judge must stand back and ask whether it is in the interests of justice that the statement be admitted. In doing so, he will of course remember that the statute does not render hearsay automatically admissible, and the reasons why it is not. Put broadly, they are that hearsay is necessarily second best evidence, and that it is for that reason much more difficult to test and to assess. The jury never sees the person whose word is being relied upon. That person cannot be asked a single exploratory or challenging question about what he said. Those very real disadvantages of hearsay evidence, which underlay the common law rule generally excluding it, remain critical to the assessment of whether the interests of justice call for its admission. The history of the basis of plea document in the present case (see paragraph 12 above) is a salutary example. If it had not turned out that the naming of Y had been a plain error by lawyers, ascertainable by informal enquiry by the Crown, and the first basis of plea document had been put in evidence as hearsay, it would almost certainly not have been possible for the defence to challenge it; no enquiry could have been made of X because he would not have been at the trial, and no enquiry of his solicitors or counsel could have been pressed because of legal privilege; the jury would have been left with an apparently official document, prepared by lawyers on behalf of X.

It emerged in the course of argument that in some quarters the decision of this court in McLean and others [2007] EWCA Crim 219 is being cited, on behalf of the Crown or co-defendants, as authority for the proposition that the inhibition upon the Police interviews of one defendant being relied upon against another has simply been “abrogated”. If that means that it is thought that such material is routinely to be admitted under section 114(1)(d), it both proceeds upon a mis-reading of the case and mis-states the law. McLean is certainly authority for the conclusion which we have independently reached in this case that section 114(1)(d) is capable of application to any out-of-court statement; thus it is, we accept, capable of application to a hearsay statement contained in a police interview. In that case the Judge had held that even if an out-of-court statement made by one co-defendant was admitted under section 114(1)(d) on the application of another co-defendant, the jury should still be told that it was to be disregarded except in the case of the maker. Neither the Crown, nor three appellants with conflicting interests, argued that he was right. It is because we did not, in that case, hear any argument to the contrary that we have thought it right in the present case to approach the section 114/118 issue afresh, and not simply to rely on our previous decision. Moreover, because in that case the Judge took the view he did, he never reached the question whether it was in the interests of justice that the particular statement be admitted or not. This court was at some pains to hold that it was not to be taken to be endorsing any provisional view that the Judge might have expressed to the effect that the section 114(2) considerations did not point away from admission; indeed several of them did: see paragraphs 26 and 27. For present purposes it is enough to say that the existence of section 114(1)(d) does not make police interviews routinely admissible in the case of persons other than the interviewee, and that the reasons why they are ordinarily not admissible except in the case of the interviewee are likely to continue to mean that in the great majority of cases it will not be in the interests of justice to admit them in the case of any other person.

The interests of justice test will require, in a case such as the present, attention to the difference between an admission against interest and an accusation against someone else. That consideration no doubt also comes into play under section 114(2)(e), the reliability of the maker of the statement, and (d), the circumstances in which the statement was made. Absent inducement, mental instability or perhaps an incentive to protect someone else, it can no doubt normally be said that a person is unlikely to confess to a serious crime unless he did it. Precisely the reverse may well be true of an accusation against someone else, whether it is combined with a reliable confession or not. It may be evident that the maker of the accusation has a possible motive to blame someone else when no-one else was in fact involved, or (where plainly someone else was involved) to cast the blame on the wrong person. Self interest, to which Judge Gordon sagely referred in his ruling in the present case, is one obvious such motive; it is of course not the only one, for diversion of the accusation to protect another or out of animus against the person accused, may also, on the facts of different cases, fall for consideration. Sometimes it may be impossible to know whether such a motive exists or not. Sometimes it will be significant that the possibility of mistake cannot adequately be explored. In a few cases, it is possible that the accusation can be regarded as sufficiently reliable for it to be in the interests of justice to admit it, even though it cannot be tested by questioning the maker. It seems to us that it is likely that that will be the unusual case.

Although section 114(1)(d) is available to the Crown as it is to a defendant, the identity of the applicant is plainly relevant to the interests of justice test. It does not necessarily follow that the interests of justice will point in the same direction upon an application by the Crown as they might upon an application made by a defendant. Section 114(2)(i) moreover requires consideration of the injurious consequences of admission (‘prejudice’) to the party facing the evidence which will arise from the difficulty of challenging it. Since the burden of proving the case is upon the Crown and to the high criminal standard, very considerable care will need to be taken in any case in which the Crown seeks to rely upon an out-of-court statement as supplying it with a case against the defendant when otherwise it would have none. In such a case if there is genuine difficulty in the defendant challenging, and the jury evaluating, the evidence, the potential damage to the defendant from that difficulty is very large.

Both the interests of justice test and section 114(2)(g) command attention to the question whether oral evidence can be given, rather than reliance be placed on the hearsay statement. We would expect that before reaching the conclusion that it is in the interests of justice to admit a hearsay statement, the Judge must very carefully consider the alternatives. The alternatives may well include the bringing of an available, but reluctant, witness to court. It by no means follows in practice that a witness who has declined an invitation to make a statement will in fact refuse to give evidence if brought to court. If he may do so, then consideration will also need to be given to whether justice would better be served by putting him before the jury so that they can see him, with the possibility of applying to cross-examine him upon the previous statement, rather than simply putting in that statement for evaluation in the abstract by the jury. The statement itself can serve as notice to the defendant of the evidence which it is sought to adduce. The Judge will need to weigh the untidiness of this for the Crown (or other party), but it may be that in some cases he will conclude that it will enable the jury to see the source of the vital accusation and to weigh up what if anything he says about it. Such a course would not necessarily prevent a subsequent application under section 114(1)(d) if it became apparent that there was sufficient reliability in the statement to justify it. For the Crown, Mr Finucane QC reminded us that the maker of the out-of-court statement could only be cross-examined on it if the reporter of it stuck to his/her evidence that it was made; that is so, but if there is doubt about whether the reporter will still verify the making of the out-of-court statement, that is itself a factor material to its admission as hearsay. We emphasise that we do not purport to lay down any rule as to how a particular case should be handled; everything will depend on the infinitely varied circumstances of each case, and the individual judgment of the Judge.

Section 114(1)(d) is available in law for all types of hearsay, and on application by any party to a criminal trial. In the case of an out-of-court statement contained in, or associated with, a confession, section 118(1) paragraph 5 does not exclude the application of section 114(1)(d).

But the greatest care must be taken, before admitting an out-of-court statement under section 114(1)(d), to ensure that the section 114(2) factors are fully considered and that overall it is genuinely in the interests of justice that the jury should be asked to rely on the statement without seeing its maker and without any question being addressed to him about it. It is not the effect of section 114(1)(d) that out-of-court statements, whether by co-accused or anyone else, are routinely to be admitted. The considerations set out in paragraphs 49 to 60 above exemplify, but do not purport exhaustively to list, some of the reasons.

We allow the appeal and reverse the ruling of the Judge that the Crown is prevented by section 118(1), paragraph 5, from making its application under section 114(1)(d). The merits of that application are for the trial Judge. Since as we understand it the jury, which had been sworn but had heard neither opening nor any evidence, has not been discharged, the appropriate order is that the trial of Y may be resumed.