Hayter, R v

Where proof that another person committed an offence is a legal precondition to a secondary party’s liability, a jury in a joint trial may use its finding of that person’s guilt, reached on evidence admissible against that person, when considering the secondary party’s case. Section 74(1) of the Police and Criminal Evidence Act 1984 makes a prior conviction admissible, where relevant, to prove that the convicted person committed the offence. The same conclusion may therefore be reached within a joint trial.

This does not permit a co-accused’s out-of-court confession to be used directly against another defendant, including to confront that defendant’s defence.

R v Hayter concerned the murder of Mario Commatteo. The prosecution alleged that Ryan killed Commatteo for payment procured by Bristow, and that Hayter acted as the intermediary. The three were tried together as principals. The evidence against Hayter was circumstantial and depended on proof that Ryan was the killer and Bristow the procurer.

Hayter was convicted at the Central Criminal Court before the Recorder of London. He appealed against conviction, contending that Ryan’s guilt could not be proved against him by Ryan’s out-of-court admissions, which were inadmissible against Hayter. The issue was whether the jury could use its finding of Ryan’s guilt, based on evidence admissible only against Ryan, in deciding Hayter’s case.

1. Appeal dismissed. The conviction was safe. The Recorder correctly ruled that, if the jury was satisfied on evidence admissible against Ryan that Ryan was the killer, that established fact could be considered when deciding Hayter’s liability as the alleged intermediary.

2. The approach did not use Ryan’s alleged confession as evidence against Hayter or to confront any part of Hayter’s defence. It therefore preserved the fundamental rule excluding a co-accused’s out-of-court admission as evidence against another accused.

3. Earlier decisions in R v Spinks 74 Cr App R 263 and R v Rhodes 56 Cr App R 23 rested on the former inability to prove, in separate proceedings, the truth of the offence by proof of another person’s conviction. That foundation had been removed by section 74(1) of the Police and Criminal Evidence Act 1984, which makes such a conviction admissible where relevant to prove that the other person committed the offence.

4. R v Hickey and Others was materially different. There the co-accused’s statement had been used to contradict the other defendants’ accounts and was treated as though the maker were an additional prosecution witness. No such use occurred here.

5. As no other aspect of the summing-up or trial was challenged, the court dismissed the appeal.

• Court of Appeal (Criminal Division): dismissed Hayter’s appeal against conviction in [2003] EWCA Crim 1048.
• Central Criminal Court: Hayter was convicted of murder on 3 July 2001 before the Recorder of London.