| CRIME — Evidence — Hearsay — Statement made out of court —Judge ruling on admissibility of hearsay evidence — Whether ruling relating to “offences included in … indictment” —Whether prosecutor having right to appeal — Whether new statutory powers to admit hearsay evidence in interests of justice prevailing over preserved common law rules — Criminal Justice Act 2003, ss 58, 114(1)(d), 118(1)5
R v Y [2008] EWCA Crim 10; [2008] WLR (D) 15
CA: Hughes LJ, Saunders J and Sir Christopher Holland: 25 January 2008
Many rulings made by trial judges could properly be described both as relating to “offences included in the indictment” and as being evidentiary and as such came within the provisions of s 58 of the Criminal Justice Act 2003, allowing the Crown to appeal against them provided it agreed, pursuant to s 58(8), that if the appeal failed the defendant had to be acquitted.
The provisions of s 114(1)(d) of the 2003 Act, which allowed an out-of-court statement to be admitted in evidence if the court were satisfied that it was in the interests of justice for it to be admissible, were available in law in relation to 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, s 118(1)5 of the 2003 Act, which preserved any rule of law relating to the admissibility of confessions or mixed statements in criminal proceedings, did not exclude the application of s 114(1)(d).
The Court of Appeal (Criminal Division) so held when allowing an appeal by the Crown, under s 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 s 114(1)(d) of the 2003 Act had no application to a hearsay statement contained in a confession by another man, X, who had subsequently pleaded guilty to the murder, which confession implicated Y. The judge had accordingly ruled that the Crown’s application did not fall to be considered on its merits.
HUGHES LJ, giving the judgment of the court, said that the Crown’s case was that the murder was the result of a street fight between youths. One of the two assailants (said to be Y) had attacked the victim with a cosh and then called for X, who was carrying a knife, to stab the victim. X had done so, fatally wounding the victim. X had later beenr arrested and in due course pleaded guilty to murder. 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 judge ruled against the Crown’s application under s 114(1)(d) to admit the girlfriend’s statement. On the appeal two issues arose: whether an interlocutory appeal under s 58 could be brought when the ruling was as to the admissibility of evidence (the jurisdiction issue), and whether, if it could, s 114(1)(d) was capable of applying to allow the admission of hearsay material which was contained in a confession by another person or was it excluded by the presence in the 2003 Act of s 118(1)5 (“the s 114/118 issue”)? On the jurisdiction issue, the defendant submitted that any right of appeal against the ruling in this case fell within ss 62–67 of the 2003 Act, which had not yet been brought into force, rather than ss 58–61 which had. It was argued that while the ruling was a ruling in relation to a trial on indictment, it was not one which “related to one or more offences included in that indictment”; rather, it was an “evidentiary” ruling and as such fell only with s 62 and following. Their Lordships accepted that the ruling fell squarely within the definition of “evidentiary ruling” in s 62(9) but it did not follow that it was not also a ruling which “relates to one or more offences included in the indictment”, and thus within s 58, if the Crown were prepared to give the s 58(8) agreement that if the appeal failed the defendant had to be acquitted. The matter was made quite clear by s 62(11) which expressly contemplated that an evidentiary ruling within s 62 might also be the subject of a s 58 appeal. There was 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 agreed to acquittal if the appeal failed) and also as an evidentiary ruling under s 62, in respect of which the right of appeal would be broader if implemented. The difference between the two types of interlocutory appeal lay in the s 58(8) condition. Accordingly, the judge’s ruling came within s 58(1). On the s 114/118 issue, paras (a) to (d) of s 114(1) were alternatives — that was apparent from the use of the word “or” linking the final two paragraphs. Section 114(1)(b) made admissible any evidence which was admissible under a rule of law preserved by s 118. Hearsay evidence contained in a confession was, in law, as open to admission under s 114(1)(d) as any other hearsay. S 114(1) could not be read so as to subordinate para (d) to (b) and, in any event, the common law rules preserved by para (b) and s 118 were rules of admissibility and not inadmissibility. Accordingly the residual power to admit hearsay under s 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. Neither the fact that the hearsay in question was an accusation against the defendant, rather than an admission against interest by the maker, nor the fact that it was the Crown which sought to adduce it, could rule out the application of s 114(1)(d) as a matter of law, although those two factors, together with all other material ones, were extremely relevant to exercise of judicial judgment under s 114(1)(d) and s 114(2) and although s 114(1)(d) was available to the Crown as well as to a defendant, the identity of the applicant was plainly relevant to the interests of justice test. Accordingly s 114(1)(d) was 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, s 118(1)5 did not exclude the application of s 114(1)(d).
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