Tuesday Law Report: Confession admissible against co-defendant in joint trial

8 February 2005 Regina v Hayter ([2005] UKHL 6) House of Lords (Lord Bingham of Cornhill, Lord Steyn, Lord Rodger of Earlsferry, Lord Carswell and Lord Brown of Eaton-under-Heywood) 3 February 2005

IN A joint trial of two or more defendants for a joint offence a jury was entitled to consider first the case in respect of one defendant, which was solely based on his own out of court admissions, and then to use their findings of his guilt and the role he had played as a fact to be used evidentially in respect of a co-defendant.

The House of Lords (Lord Rodger of Earlsferry and Lord Carswell dissenting) dismissed the appeal of Paul Hayter against the Court of Appeal's decision to dismiss his appeal against his conviction of murder.

Mr Hayter and two co- defendants were charged with murder, all three having been indicted as principals. The prosecution case was that the first defendant had arranged for the contract killing of her husband through Mr Hayter (the second defendant), and that he had engaged and paid the third defendant, who had actually shot the victim.

The evidence against the first defendant came from a number of sources and was cogent. The evidence against the third defendant was solely based on a confession which he had allegedly made to his girlfriend. The judge invited the jury to consider in logical phases the cases against the third defendant, the first defendant, and finally Mr Hayter.

He directed the jury that, only if they found both the third and first defendants guilty of murder, would it be open to them, taking into account those findings of guilt, together with other evidence against Mr Hayter, to convict him. The jury convicted all three defendants. Mr Hayter's appeal was dismissed by the Court of Appeal, and he appealed.

John Kelsey-Fry QC (Ziades) for the appellant; Mark Dennis and Robin McCoubrey (Crown Prosecution Service) for the Crown.

Lord Brown of Eaton-under-Heywood said that in a joint trial of two or more defendants for a joint offence a jury was entitled to consider first the case in respect of defendant A, which was solely based on his own out of court admissions, and then to use their findings of A's guilt and the role A had played as a fact to be used evidentially in respect of co-defendant B.

The Crown's argument (and, indeed, the rulings in this case both by the judge and by the Court of Appeal) necessarily involved some modification of the rule which excluded out-of-court admissions' being used to provide evidence against a co-accused, whether indicted jointly or separately.

It was 20 years since section 74 of the Police and Criminal Evidence Act 1984 had been enacted, and with it the prosecution's right to adduce in evidence against an accused another person's prior conviction. Whilst it was true that section 74 had no direct application to a case like the present, where both accused stood trial together, it was hardly to be thought that Parliament, had it turned its mind to the comparatively rare case like the present, where the question arose of using evidentially against B the jury's already-formed conclusion that A was guilty, would have proposed a different approach.

In a joint trial B was in a better position to challenge whatever evidence pointed to A's guilt than if A had already been convicted at a previous trial. Moreover, by the same token that under s 74 another person's conviction was admissible against the secondary accused irrespective of the nature of the evidence on which that conviction had been based, so too the particular evidential basis on which the jury had found A guilty should make no difference merely because the two defendants were tried jointly.