McLean, R v

An out-of-court assertion made by one defendant about another may be admitted under section 114(1)(d) of the Criminal Justice Act 2003 only if its admission is in the interests of justice. If admitted, it is evidence in the case generally. The jury may assess its weight and reliability in relation to every defendant affected by it.

The former direction that a defendant’s out-of-court statement is evidence only against its maker cannot be used once the statement has been admitted as hearsay. In applying section 114(2), the court must consider all relevant circumstances, including reliability, alternative evidence, the ability to challenge the statement, prejudice and possible manipulation.

McLean, Paine and Harris were convicted of murder arising from the fatal stabbing of Christopher Alexis. The prosecution alleged joint enterprise. Each appellant’s account attributed the use of the knife to another participant.

While on remand, Harris allegedly told prison officers that Paine had stabbed the deceased. McLean applied to adduce that assertion. Harris supported the application, Paine opposed it and the Crown remained neutral. The trial judge refused admission, treating the historic rule concerning one defendant’s out-of-court statement as continuing to prevent its use against another defendant.

The central issue was whether that approach was compatible with section 114(1)(d) of the Criminal Justice Act 2003.

1. Appeals allowed. The court quashed all three convictions and ordered retrials.

2. Section 114(1)(d) of the Criminal Justice Act 2003 posed the decisive admissibility question: whether admitting the hearsay statement was in the interests of justice. The statement was not a confession to which section 76 A of the Police and Criminal Evidence Act 1984 applied.

3. The historic direction that a defendant’s out-of-court statement is evidence only against its maker reflected the former inadmissibility of hearsay against co-defendants. It could not survive a ruling that the same statement was admissible under section 114(1)(d). Once admitted, the jury could consider it generally, determine its weight and decide whether to rely on it.

4. The trial judge had therefore proceeded on a fundamental legal error. Although he had addressed the factors in section 114(2), he treated an unmodified former rule as determinative and thereby disabled himself from exercising the statutory discretion.

5. The Court of Appeal could not safely decide on the paper record whether the evidence should have been admitted. The statutory factors were non-exhaustive. They required careful assessment of other available evidence, the circumstances and reliability of Harris’s self-exculpatory accusation, the difficulty and prejudice of challenging it, the jury’s ability to evaluate it, and the potential for manipulation between defendants.

6. Because the correct admissibility decision and the consequent course of the trial could not be reconstructed, the court could not regard any conviction as safe. The interests of justice required retrials. The appellants were to remain in custody pending retrial.

• Court of Appeal (Criminal Division): By [2007] EWCA Crim 219, allowed the appeals against conviction, quashed the murder convictions and ordered retrials.
• Trial court: McLean, Paine and Harris were convicted of murder. The trial court and any citation are not stated in the judgment.