R v Hayter

The House of Lords considered whether, in a joint trial, a jury may first convict defendant A on the basis of A's out‑of‑court confession (admissible against A alone) and then use the jury's finding of A's guilt as a fact in the case against co‑defendant B without relying on the content of A's confession. The majority held that this procedure is permissible provided the jury are clearly directed to disregard the words and content of A's confession when considering B, and may use only the fact of A's guilt together with admissible evidence against B. The judgment discusses the common‑law rule excluding use of a defendant's confession against a co‑defendant, the role of conditional relevance in trials, and the effect of statutory developments (notably section 74 of the Police and Criminal Evidence Act 1984) on earlier authorities.

This was an appeal by Paul Hayter against his conviction for murder after a joint trial at the Central Criminal Court with Angela Bristow and Raymond Ryan. The Crown's case was that Bristow procured the killing of her husband, Hayter acted as middleman and paid the killer, and Ryan was the shooter. The only evidence identifying Ryan as the shooter consisted of confessions allegedly made by Ryan to his girlfriend, Vanessa Salter; the evidence against Hayter was largely circumstantial (telephone contacts, association, and cash transfers via an intermediary). At the close of the prosecution case Hayter submitted that there was no case to answer because the evidence that identified Ryan as killer comprised only his out‑of‑court admissions, which are admissible against Ryan alone and not against Hayter.

The judge refused the submission, directed the jury that Vanessa Salter's evidence was admissible only against Ryan but advised them to consider Ryan's case first and, if satisfied of his guilt, to treat that finding as a fact when considering the cases of Bristow and Hayter (while expressly excluding any use of the content of Ryan's confession against the co‑defendants). The jury convicted all three defendants of murder. On appeal to the Court of Appeal the conviction was upheld and a point of law of general public importance was certified under section 33(2) of the Criminal Appeal Act 1968. The House of Lords granted leave.

Issues framed by the court:

• Whether, in a joint trial, a jury may consider first the case against defendant A based on A's out‑of‑court admissions and then use the jury's finding of A's guilt and role as a fact to be used evidentially against co‑defendant B.
• Whether proof of A's guilt required for a case against B can exist at the close of the prosecution case where the only evidence of A's guilt is A's out‑of‑court admissions.

Reasoning and outcome: The majority (Lords Steyn, Bingham, Brown, and Carswell) took the view that the judge's approach and directions were legally permissible. They reasoned that joint trials are normally in the public interest, the trial judge may give conditional rulings and direct the jury to consider issues in logical sequence, and that the jury may, if properly directed, use their finding of A's guilt as a factual building‑block in assessing B provided they do not rely on the content of A's confession in doing so. The majority regarded this as consistent with the development of law, including the policy reflected in PACE section 74. Two Law Lords (Lords Rodger and Carswell in their separate opinions expressed reservations or would have allowed the appeal) emphasised the continuing force of the hearsay rule and earlier authorities (notably R v Spinks and related decisions) and considered that at the direction stage only evidence admissible against B could be considered; they would have quashed Hayter's conviction. The House by majority answered the certified questions in the affirmative and dismissed the appeal.

Appeal dismissed. The majority held that in a joint trial a jury may, if properly directed, consider and convict defendant A on evidence admissible against A (including A's out‑of‑court confession) and may then use their finding of A's guilt as a fact in considering the case against co‑defendant B provided the jury are expressly directed to disregard the content of A's confession when assessing B and only the fact of A's guilt is used together with evidence admissible against B. The court emphasised the permissibility of conditional rulings and the public interest in joint trials. A minority would have allowed the appeal, holding that at the no‑case stage only evidence admissible against B can be taken into account and that allowing the fact of A's guilt derived from inadmissible material to be used against B would improperly erode the hearsay rule.

Trial at the Central Criminal Court before the Recorder of London: convictions of all three defendants for murder. Appeal to the Court of Appeal (Criminal Division) [2003] EWCA Crim 1048; reported [2003] 1 WLR 1910, which upheld the trial judge's rulings and dismissed Hayter's appeal and granted a certificate under section 33(2) of the Criminal Appeal Act 1968. Leave to appeal to the House of Lords was granted; House of Lords decision [2005] UKHL 6 upheld the convictions by majority and answered the certified questions in the affirmative.