Court of Appeal, Criminal Division

Published March 11, 2008

Court of Appeal

Regina v Y (Hearsay evidence)

Before Lord Justice Hughes, Mr Justice Saunders and Sir Christopher Holland

Judgment January 25, 2008

Some rulings by trial judges could properly be described both as relating to counts on the indictment as well as being evidentiary.

The Court of Appeal, Criminal Division, so held when allowing an appeal by the Crown, under section 58 of the Criminal Justice Act 2003, against a ruling by a judge in the case of Y, who was on trial alone for murder, that section 114(1)(d) of the 2003 Act had no application to a hearsay statement contained in a confession by another man, X, who had later pleaded guilty to the murder, which confession implicated Y.

The Crown’s said that the victim was attacked by two assailants, one of whom, said to be Y, attacked the victim with a cosh and then called for X, who was carrying a knife, to stab him. X did so, fatally wounding him.

X was later arrested and in due course pleaded guilty to murder but prior to his arrest X was said by a girlfriend to have admitted to her that he had killed someone and that Y had been the other assailant. The Crown’s application under section 114(1)(d) to admit the girlfriend’s statement was rejected.

Mr Brendan Finucane, QC and Mr Oliver Glasgow for the Crown; Mr Peter Griffiths, QC and Mr Bill Evans, solicitor, for the defendant.

LORD JUSTICE HUGHES, giving the reserved judgment of the court, said that two issues arose: whether an interlocutory appeal under section 58 could be brought when the ruling was as to the admissibility of evidence, and if it could, whether section 114(1)(d) was capable of applying to allow the admission of hearsay material which was contained in a confession by another person.

The defence argued that any right of appeal fell within sections 62 to 67 of the 2003 Act, which had not yet been brought into force, rather than sections 58 to 61 which had.

Their Lordships accepted that the ruling fell within the definition of “evidentiary ruling” in section 62(9) but it did not follow that it was not also a ruling which related to one or more offences in the indictment, and thus within section 58, if the Crown would give the section 58(8) agreement that if the appeal failed the defendant had to be acquitted.

Accordingly, there was no reason why a single ruling should not qualify both as a section 58 ruling in relation to a count on the indictment and also as an evidentiary ruling under section 62. Section 114(1)(b) made admissible any evidence admissible under a rule of law preserved by section 118, and section 114(1)(d) made hearsay evidence in a confession as admissible as any other hearsay.

Paragraphs (a) to (d) of section 114(1) were alternatives and could not be read so as to subordinate paragraph (d) to (b). In any event, the common law rules preserved by paragraph (b) and section 118 were rules of admissibility and not inadmissibility.

Accordingly the residual power to admit hearsay under section 114(1)(d), if the interests of justice genuinely required it, prevailed over the general common law rule that hearsay was inadmissible, and thus it prevailed over the particular common law rule that hearsay contained in a confession was inadmissible except against its maker.

Section 114(1)(d) was available for all types of hearsay, and on application by any party to a criminal trial. Where an out-of-court statement was linked with a confession, section 118(1)5 did not exclude section 114(1)(d).

Solicitors: CPS, HQ; EBR Attridge LLP, Bloomsbury.

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