Y, R v

An evidentiary ruling may be appealed by the Crown under section 58 of the Criminal Justice Act 2003 where it relates to an offence on the indictment and the Crown gives the statutory undertaking that an unsuccessful appeal will result in acquittal. Its character as an evidentiary ruling does not exclude that route.

Section 114(1)(d) permits the admission, in the interests of justice, of any hearsay statement, including an accusation associated with a third-party confession. Section 118(1), paragraph 5 preserves common-law rules of admissibility; it does not create a bar to that residual statutory discretion. Admission remains exceptional. The judge must assess all the section 114(2) factors, including reliability, the inability to test the evidence, prejudice, and whether oral evidence can instead be obtained.

The Crown brought an interlocutory appeal from a trial judge’s ruling at Y’s murder trial. The Crown sought to rely on statements by X, who had already pleaded guilty to the murder, which allegedly identified Y as the other assailant. The Crown said that, without the proposed hearsay, it had no prima facie case against Y.

The judge held that section 114(1)(d) of the Criminal Justice Act 2003 could not apply because the material was associated with X’s confession and section 118(1), paragraph 5 preserved the contrary common-law rule. The judge therefore did not decide whether admission would be in the interests of justice.

The appeal concerned, first, whether section 58 permitted the Crown to appeal that evidentiary ruling and, secondly, whether section 118 excluded the statutory hearsay discretion.

1. Appeal allowed. The ruling was appealable under section 58 of the Criminal Justice Act 2003. Section 58(1) covers a ruling relating to offences on an indictment where the Crown gives the section 58(8) undertaking. A ruling on the admissibility of Crown evidence relates to those offences. Its additional character as an evidentiary ruling within section 62 did not remove it from section 58. Section 62(11), although not in force, confirmed that the two routes could overlap.

2. Section 114(1) sets alternative statutory gateways for hearsay. Section 114(1)(d) is a residual power to admit hearsay where the court is satisfied that admission is in the interests of justice. Section 118 preserves specified common-law admissibility rules. It does not preserve a rule of inadmissibility capable of overriding section 114(1)(d). Accordingly, a statement contained in, or associated with, a third-party confession is legally capable of admission under section 114(1)(d).

3. The statutory power is available whether the statement is an admission against the maker’s interest or an accusation against another person, and whether it is tendered by the Crown or the defence. Those matters are nevertheless highly material when deciding whether admission is in the interests of justice. The court respectfully rejected the reasoning, though not the practical result, in Ibrahim.

4. Admission is not routine. The trial judge must consider every section 114(2) factor and all other relevant circumstances, then stand back and decide whether the interests of justice genuinely require the jury to rely on untested evidence. Particular care is required where the Crown would otherwise have no case. An accusation may be far less reliable than a genuine admission. The judge must consider the maker’s motives, the difficulty of testing the statement, resulting prejudice, and whether an available but reluctant witness should instead be brought before the jury. The approach in Taylor [2006] EWCA Crim 260 was endorsed.

5. The court reversed the judge’s legal ruling and left the merits of the hearsay application to the trial judge. The trial of Y could resume.

• Court of Appeal (Criminal Division): In [2008] EWCA Crim 10, allowed the Crown’s interlocutory appeal, reversed the ruling that section 118(1), paragraph 5 of the Criminal Justice Act 2003 prevented an application under section 114(1)(d), and remitted the merits of that application to the trial judge.
• Trial court: Ruled that the Crown could not invoke section 114(1)(d) to admit hearsay associated with X’s confession. It did not determine whether admission would be in the interests of justice.