Regina v.Hayter (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

In a joint trial, a jury may first determine one defendant’s guilt from that defendant’s out-of-court confession. It may then use the established fact of that defendant’s guilt and role when considering a co-defendant’s case. The jury must disregard the confession’s words and any content directly implicating the co-defendant.

Where the first defendant’s guilt is necessary to establish a case against the co-defendant, the judge may make a conditional ruling that the co-defendant has a case to answer. This applies even where the first defendant’s confession is the only evidence establishing the first defendant’s guilt.

Three defendants were tried jointly for murder. The prosecution alleged that Bristow procured Hayter to recruit and pay Ryan to kill her husband. The only evidence identifying Ryan as the killer was his alleged out-of-court confession to his girlfriend. The remaining circumstantial evidence against Hayter was insufficient unless Ryan could be proved to be the killer.

The Recorder rejected Hayter’s submission of no case to answer. He directed the jury to decide Ryan’s case first and, if satisfied of Ryan’s guilt, to use that finding as a fact when considering the admissible evidence against Hayter. The jury convicted all three defendants. The Court of Appeal dismissed Hayter’s appeal in [2003] EWCA Crim 1048.

The House considered whether this sequential approach infringed the rule that one defendant’s confession is inadmissible against a co-defendant, and whether Hayter had a case to answer at the close of the prosecution case.

1. Appeal dismissed by a majority of three to two. Lord Steyn and Lord Brown of Eaton-under-Heywood delivered the principal majority opinions. Lord Bingham of Cornhill agreed with their substantially common reasoning. Both certified questions were answered affirmatively. Lord Rodger of Earlsferry and Lord Carswell dissented.

2. Per Lord Steyn, a voluntary out-of-court confession remains admissible against its maker but generally inadmissible against a co-defendant. The trial judge correctly directed the jury that Ryan’s confession was evidence only against Ryan. That rule prevents the confession’s words or content from being used against another defendant. It does not prevent the jury, after finding Ryan guilty on evidence admissible against him, from treating the established fact of his guilt as relevant when assessing the separate admissible evidence against Hayter.

3. Per Lord Brown, the permissible use was narrowly circumscribed. The jury first had to be sufficiently sure of the confession’s truth to convict its maker. When considering the co-defendant, it then had to disregard everything in the confession which directly implicated that co-defendant. Lord Brown acknowledged that this involved a modest modification of the established rule, but considered it justified by logic and the legislative policy reflected in section 74 of the Police and Criminal Evidence Act 1984.

4. Per Lord Steyn, the jury could logically use a finding of guilt whether that finding rested on a confession, eyewitness testimony, fingerprints or circumstantial evidence. The procedure promoted the public interest in joint trials and avoided the anomaly of requiring separate trials merely so that a prior conviction could later be admitted under section 74.

5. The Recorder was also entitled to reject the submission of no case to answer conditionally. The evidence already adduced permitted the jury first to find Ryan guilty and then to combine that fact with the circumstantial evidence against Hayter. Courts may make conditional rulings reflecting the way relevance emerges during a trial.

6. Lord Rodger and Lord Carswell would have allowed the appeal. In their view, using a finding founded solely on an inadmissible confession effectively converted inadmissible evidence into admissible evidence against the co-defendant. Any alteration of that established hearsay rule should have been left to Parliament.

1. House of Lords: By a majority of three to two, dismissed the appeal and affirmed the Court of Appeal’s decision. Both certified questions were answered affirmatively: [2005] UKHL 6.
2. Court of Appeal (Criminal Division): Dismissed Hayter’s appeal and upheld the Recorder’s ruling and directions. It certified two questions of general public importance but refused leave to appeal: [2003] EWCA Crim 1048; [2003] 1 WLR 1910.
3. Central Criminal Court: The Recorder rejected Hayter’s submission of no case to answer. A jury convicted Hayter and his two co-defendants of murder, and each received a sentence of life imprisonment.