Myers, R v. [1997] UKHL 36; [1998] AC 124; [1997] 4 All ER 314; [1997] 3 WLR 552; [1998] 1 Cr App Rep 153; [1997] Crim LR 888 (24th July, 1997)

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	United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Myers, R v. [1997] UKHL 36; [1998] AC 124; [1997] 4 All ER 314; [1997] 3 WLR 552; [1998] 1 Cr App Rep 153; [1997] Crim LR 888 (24th July, 1997) URL: http://www.bailii.org/uk/cases/UKHL/1997/36.html Cite as: [1998] 1 Cr App R 153, [1997] Crim LR 888, [1997] UKHL 36, [1997] 3 WLR 552, [1997] 4 All ER 314, [1998] 1 Cr App Rep 153, [1998] AC 124

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 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 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' House and certified that the following point of law of general public importance was involved in its decision, namely:

The question arose in this way. Myers and Quartey with a young girl were driven in the 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-mortem examination 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 doing so. Quartey denied that there was any plan to rob the driver. Myers had ordered the cab 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 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 by 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 and he 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 I couldn'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'll get a few years for this." Asked why she replied, "Well I cut him 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 they were 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 was more than satisfied that he should not order separate trials:

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:

They took the view that the exercise of the trial judge's discretion could on this question 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 that decision but the admissibility 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 the 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 sections 66 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 being relevant 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 her on the confessions and if she denied having made them, he could call evidence of what 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 be evidence of the commission of the crime by her but would go to her credibility. The trial judge considered that "It would be an impossible task for the jury to draw that distinction."

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 and Reg. 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 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 Quartey adducing this evidence "either by way of cross-examination of the officers if they are called by the Crown or by calling them as part of his case."

The Court of Appeal found that there was a conflict between the decision in Beckford and Daley on the one hand and Campbell and Williams on the other which could not be validly distinguished. They preferred the reasoning in Campbell and Williams and on that basis dismissed the appeal.

In Reg. v. Beckford and Daley three 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 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 this confession could only be introduced 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.:

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

He could not create a new exception to the hearsay rule to cover that case since on the basis of Myers 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 and 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 him and added:

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 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--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 a conversation 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 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 the fairness of 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 a judgment 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 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 in criminal cases.

He distinguished the decision in Reg. v. Beckford and Daley from Reg. v. Campbell and Williams on the basis that the former was a case where the confession of one defendant 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 a joint trial he said:

The problem in Reg. v. Beckford and Daley was not relevance; it was that evidence of the 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 decision in Beckford that a co-defendant cannot be in a better position than the prosecution in relation to the proof of an inadmissible confession."

The situations in Beckford and Campbell were, I agree, different. Beckford was 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 Campbell there 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 one defendant 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 the issue crucial to the present case the two decisions of the Court of Appeal are in conflict. In Beckford Auld 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 it was not evidence against the maker of the statement. In Campbell the Court 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 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 section 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 admission of the evidence 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 Daley is the one 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 trial judge refused the application on the basis that such evidence was hearsay and inadmissible. The Court of Appeal upheld the judge's decision. Two questions were certified as involving points of law of general importance, viz. (see p. 42):

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

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 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 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 a number of ways.

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.:

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."

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:

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:

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] AC 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:

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.

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:

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:

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:

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:

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:

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.

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.

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.

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.

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 was decided 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 character and 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 is that 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 who has 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 being cross-examined about his own statements, has to be considered because the contents of a statement 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 the statement 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 for one 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-defendant because 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 it was 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 hearsay rule 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 aware of 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 an admission which was admissible against Campbell. When Campbell gave evidence he adopted 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 and Williams appealed on the ground that the trial judge was wrong to admit the evidence of the tape 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 different ground, namely that the statement which the co-accused was not allowed to elicit had been held 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 other ground, could have been led under one of the recognised exceptions to the hearsay rule which enables an admission made by a party to a litigation to be led in evidence against him.

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 Daley and 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 would be 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 a third party, who was not on trial with him as a co-defendant, had said things tending to show 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 he would 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 question of 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 evidence where 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 on this matter before moving to the other point, Lord Bridge of Harwich observed that this would involve creating a new exception to the hearsay rule and said, at pp.52H-53A:

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 no other 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 his defence, because it related to one of the crucial issues at the trial, namely whether it was the 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 prosecution evidence--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 and Daley and Reg. v. Campbell and Williams--some assistance can, I think, be gained from two recent decisions from Scotland in the High Court of Justiciary. These two cases, Perrie v. H.M. Advocate 1991 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, on the 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 a person 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 person who 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 trial neither 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 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 was an uncertain guide as, unlike the position in England as described in Reg. v. Blastland where the categories of exceptions to the hearsay rule were said to be closed, that was not so in the 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 Scottish cases is in the discussion, particularly in the five judge case of McLay 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 them by 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 of criminal trials, commented on this matter. But the most detailed discussion is to be found in the 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 commonly given 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 case against 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, evidence which 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 is more 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 person who 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 protection which the law gives to accused persons in cases where evidence is to be led which may be incriminating.

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] 2 Cr.App.R. 335, 342E-343B, sets out an approach to the problem which is consistent with that which has been taken in Scotland:

I respectfully agree with Russell L.J. that the reasoning on the issue of hearsay which is contained 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 Campbell were in agreement with 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 is inadmissible against the defendant, must also be considered. This is the second issue, to which I now turn.

In the Court of Appeal it was held that the inadmissibility of the police admissions at the suit 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 they were other than voluntary. Russell L.J. said, [1996] 2 Cr.App.R. 335, 340C-D:

In Reg. v. Beckford and Daley the 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 the absence of a solicitor. It does not appear from the report that it was suggested that there were 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 such that it would have such an effect on the fairness of the proceedings that the court ought not to 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 Beckford case, 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 the present 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 section 82(1) as including:

The primary rule is that in section 76(1), namely that in any proceedings a confession made by 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 evidence a confession which was or may have been obtained by oppression, or in consequence of anything said or done which was likely to render it unreliable, and it is unable to prove the contrary, the court is required by section 76(2) not to allow the confession to be given in evidence.

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 position than the Crown if the confession was obtained in such circumstances. A confession which 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 subject to 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 or unfair 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 that there 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 as he 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 suggestion in 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 defendant wishes to put in evidence consists of a confession which was made by a co-defendant in the circumstances 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 defendant wished 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 to be 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 from the 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 it describes on which a co-defendant wishes to rely.

The Court of Appeal approached this matter on the assumption that the trial judge had an 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 in circumstances 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 with the Court of Appeal that the trial judge did not err in admitting that evidence. It would perhaps 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 there were no grounds for taking the view that it was evidence on which no reasonable jury could rely 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 all circumstances. But this is a point on which we did not hear argument, and it is not necessary to reach a view upon it in order to reach a decision in this case.

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 on other 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 therefore decline 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.

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Slynn of Hadley. I agree that, for the reasons which he gives, this appeal should be dismissed.

United Kingdom House of Lords Decisions

Myers, R v. [1997] UKHL 36; [1998] AC 124; [1997] 4 All ER 314; [1997] 3 WLR 552; [1998] 1 Cr App Rep 153; [1997] Crim LR 888 (24th July, 1997)