McLean, R v [2007] EWCA Crim 219

No: 2005/4710/B3 2006/1223/B3 2005/4721/B3[2007] EWCA Crim 219
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 30 January 2007
Strand
London, WC2
B E F O R E:
LORD JUSTICE HUGHES
MRS JUSTICE RAFFERTY DBE
MR JUSTICE MACKAY
R E G I N A
-v-
RICHARD MCLEAN
DANIEL PAINE
TRISTON HARRIS
Computer Aided Transcript of the Stenograph Notes of
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190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR D HISLOP appeared on behalf of McLean
MR S TRIMMER QC and MR A WILCKEN appeared on behalf of Paine
MR S SANDFORD appeared on behalf of Harris
MR J LAIDLAW AND MISS B CHEEMA appeared on behalf of the CROWN
J U D G M E N T
Between
McLeanDefendantRCrown

LORD JUSTICE HUGHES:

These

[1]appeals against conviction raise questions relating to the new hearsay provisions of sections 114 to 136 of the Criminal Justice Act 2003. In particular they concern the application of those provisions to an out of court statement made by one defendant which another defendant seeks to adduce in evidence.[2]The appellants McLean and Harris and the applicant Paine were convicted of murder.[3]Not long before 1 o'clock on the night of 18th to 19th May 2004, a young man called Christopher Alexis was stabbed through the heart in the street near a hostel where he lived in Ealing. Four men were charged with his murder. The case against all of them was put by the Crown as one of joint enterprise.[4]The deceased had a history of mental illness, in part at least caused by the abuse of drugs. After in-patient treatment in a psychiatric hospital, he was living in a hostel for vulnerable and homeless young men. There was clear evidence, in the end essentially admitted by McLean, that for some weeks before the killing McLean had been bullying and intimidating the deceased. McLean had burgled and damaged the room of the deceased in the hostel. Further, he had demanded money from the deceased reinforced by threats or menaces.[5]By the time of the trial at least, McLean admitted in evidence that on the night of the killing he had sought out the deceased and that he had done it in order to make a further demand of money. He further admitted that he had recruited Paine and Harris to help him. At that time Paine and Harris were good friends with each other. That night an expedition was made to the home of the parents of the deceased in Sudbury in an effort to locate the victim. But he was not there. The group of these three appellants then returned to the hostel. There there was a fourth man, McIntosh. He also had a history of mental illness and he was a friend of the deceased living in the same hostel.[6]The victim's room was quite extensively wrecked in his absence and some clothes which were found there were cut up in order to make Balaclava masks. A number of telephone calls were made in an effort to track down where the deceased might be, and eventually did so. He, who had been with a girlfriend out in Hayes, was persuaded on some pretext or other to come home to the hostel. That was at a few minutes before midnight. On the evidence he appears to have got back either just to or just inside the hostel (the evidence was not clear) but thereafter to have been chased out in the street by some or all of the others. He was killed in the street a little way from the hostel. What killed him was a single stab wound to the heart. But his face bore, in addition, the marks of either slashing or pricking with something sharp, which might have been the tip of a knife.[7]After the event, but not immediately, McLean made a 999 call. It was to an extent misleading because it suggested that he had gone immediately to the assistance of the deceased and applied an item of clothing in an effort to staunch wounding, which the scientific evidence suggested he had not done. He, however, was found by the authorities when they arrived at the scene.[8]Paine and Harris had run off. They were found a little distance away. The murder weapon was found discarded near to where Paine and Harris were arrested. There was a good deal of the blood of the deceased on Paine's clothing. Some of it had been airborne blood which had travelled through the air. There was also blood of the deceased, including one possibly airborne deposit, on McLean, who had of course on any view been in close proximity to the body after the stabbing as well as whatever he had or had not done before.[9]All four of the men mentioned were prosecuted for murder. McIntosh, the one who had been the friend of the deceased, was acquitted by the jury. He was a young man who had been unfit through mental illness to give evidence.[10]McLean had given a number of admittedly false accounts of events prior to the trial. He had begun with an assertion that none of it was anything to do with him. Rather, he had suggested, the deceased had owed a large sum of money to an unknown drug dealer and it must be the unknown drug dealer who had killed him. There was also evidence that McLean had written letters to Paine, to Harris and to his own girlfriend which at least on one construction, and perhaps inevitably, were designed to orchestrate the evidence. At the trial, however, McLean gave evidence that he had recruited Paine and Harris with a view to getting them to help him intimidate the deceased into parting with money. He said, however, that disreputable as that may have been he had neither any intention to kill nor any foresight that anyone else would do so. It was his evidence that Paine and Harris had launched on the deceased an attack of a kind which he had neither wanted nor foreseen, and that Paine had used the knife.[11]Paine for his part had lied to the police by initially at least suggesting that McIntosh had stabbed the deceased. He had said at that stage that neither he nor Harris had touched the deceased, although a little later he had said that Harris had hit him in the back. At a later stage in interview he retracted the allegation against McIntosh and he now said that it was McLean who had used the knife and stabbed the deceased. At the trial, Paine's evidence was that he had had no part in wrecking the room. McLean, he asserted, had admitted to having done that some time earlier. Paine did admit making the Balaclavas with the other two appellants and admitted a plan to intimidate the deceased. He further admitted that all three of them had chased and caught the deceased when the deceased got back to the hostel. He said that McLean had got to him first and had punched him twice in the face. He then said that the deceased had tried to get away and he admitted that he (Paine) had punched out at him. However, it was his evidence that it was McLean and not he (Paine) who had had the murder weapon. Said Paine, McLean had produced it back in the room earlier on when cutting up the clothes to make masks. According to Paine's evidence, McLean therefore must have stabbed the deceased with the knife. He suggested that he did not see exactly when it happened. Then, according to his evidence, McLean had thrust the knife into his hands and told him and Harris to run away. He said that he had done that because he was scared of McLean.[12]Harris had said nothing to the police and nor did he give evidence at the trial. There was scientific evidence which was capable of linking him to the wrecking of the room and to the making of the masks. There was not, however, any blood recovered on him.[13]About a month after the arrests, and whilst he was on remand in custody, Harris had a conversation with some prison officers when they were escorting him to hospital for attention to an injured arm. Their evidence was that he had said on that occasion that he and the others had been standing facing the deceased, that Paine had stabbed him and that he (Harris) would have done no more than slash him as a warning. He went on to say that whereas he and Paine had always shared everything equally between them, now he believed that Paine was trying to blame him. He said in addition that he had heard Paine speaking on the telephone in prison and effectively admitting to somebody that it had been him (Paine) who had lost it and killed the deceased.[14]The Crown did not attempt to adduce this evidence. It is the fact that there was no contemporaneous note of it but only a note made some time later that day. There had been no caution; there had been no reminder that Harris could have legal advice. On the contrary, it appeared that Harris had been encouraged to talk about the offence -- one of the prison officers had told him, among other things, that God was always listening and would visit him if he did not tell the truth. There was, on the face of it, no occasion whatever for the officers to be engaging Harris in conversation about an offence for which he had yet to be tried. The question of whether the evidence would have been admissible in the hands of the Crown never arose.[15]McLean, in anticipation of the opening of the defence case, applied to adduce this evidence. Harris supported him. Paine resisted the application and the Crown remained neutral. The judge declined to admit it. It is now contended that he was wrong so to refuse and further submitted that he approached the question on a false footing.[16]It was not and it is not suggested that what Harris had said amounted to a confession which McLean could claim to adduce under the new section 76A of the Police and Criminal Evidence Act 1984. That new section was inserted into the 1984 Act by section 128 of the Criminal Justice Act 2003. It is a section which this court has considered recently in R v Finch [2007] EWCA Crim. 36. The section applies only to confessions. It does not apply here and it was never suggested that it did. What McLean wanted in evidence was not a confession by Harris but an out of court accusation by Harris of Paine. We need say no more about section 76A.[17]This application depended on the hearsay provisions of the Criminal Justice Act 2003 and in substance on section 114(1)(d). Section 114, so far as material, provides:
"(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if- (a) any provision of this Chapter or any other statutory provision makes it admissible, (b) any rule of law preserved by section 118 makes it admissible, (c) all parties to the proceedings agree to it being admissible, or (d) the court is satisfied that it is in the interests of justice for it to be admissible. (2) In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)- (a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case; (b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a); (c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole; (d) the circumstances in which the statement was made; (e) how reliable the maker of the statement appears to be; (f) how reliable the evidence of the making of the statement appears to be; (g) whether oral evidence of the matter stated can be given and, if not, why it cannot; (h) the amount of difficulty involved in challenging the statement; (i) the extent to which that difficulty would be likely to prejudice the party facing it."
[18]There is no doubt that the question for the judge was the question posed by section 114(1)(d), namely whether it was in the interests of justice that this hearsay evidence be adduced. The judge worked through the various non-exhaustive factors which are set out in section 114(2). To those we will return in just a moment. The basis of the appeal, however, is that although the judge addressed these factors he approached the question presented to him on a false basis. At an early stage in his recital of the arguments which he had heard, he said this:
"So, plainly, the prosecution have not sought to make use of it. It seems to me that, had they succeeded in making use of it as part of their case, under the normal rules, it could have been only considered as evidence against the defendant who was speaking; and I think that is an important matter to bear in mind in considering what is the just ruling here."
A little later, the judge adverted to a request which he had made for assistance from the Bar. In the course of doing so, he said this:
"The second matter on which I asked for help -- and it is a real matter that concerns me, in this case -- is on how the admission of such evidence fits in with the direction given that what is said by one defendant in the absence of another defendant -- obviously after the criminal incident is over, after the incident -- is only evidence to be considered in the case of the defendant who speaks."
Counsel for Paine pointed out the difficulty of such a direction:
"I am not concerned so much as to whether a direction is difficult, but whether it is correct. That is the basic direction that is given."
[19]At the end of his ruling the judge, having contrasted the position of a confession admissible under section 76A of the Police and Criminal Evidence Act, stated his conclusion in these terms:
"In my view, there is nothing to indicate the rule that what is said by one defendant against another defendant after the incident has been abrogated; and that is the direction that I will give to the jury. In my view, this evidence is inadmissible."
[20]The conventional direction to which the judge was referring in those various passages is of course the direction that has historically been given to juries in every case that what defendant A says to the police is evidence only when considering his case and is to be ignored when considering the case of defendants B, C or D. The reason why that has always been the direction given is that what A says to the police is hearsay so far as B, C or D are concerned. Until the passage of the Criminal Justice Act 2003 it was, almost invariably, inadmissible hearsay; hence the direction. The 2003 Act makes hearsay admissible in some circumstances. In the context of this case it makes it admissible if, but only if, the judge concludes that it is in the interests of justice that it should be admitted. It follows without question that if it is admitted there can be no possibility of what we have described as the conventional direction any longer being given. If hearsay evidence is admitted in the interests of justice the jury is by law entitled to consider it, to determine its weight and to make up its mind whether it can or cannot rely upon it. It would be a plain nonsense to suggest that such hearsay evidence could be admissible, yet still the jury should be directed that it was not evidence except in the case of Harris. There is no doubt that if and when hearsay evidence of this kind is ruled admissible it becomes evidence in the case generally.[21]It follows that if the judge meant, by the passages which we have quoted, that the conventional or historical rule remained in force even if evidence such as this was admitted, then his ruling is founded on a fundamental misapprehension as to the law. The submission made to us is that that is the inevitable import of the way in which he expressed his decision and particularly, although not solely, from the passages which we have cited.[22]We have considered with some care whether that is the inevitable reading of the judge's reasoning. In particular, we have asked ourselves whether it is possible to infer that the judge meant to say no more than that the old historic rule had not wholly been reversed, in the sense that it had not been replaced by a new rule that evidence of this kind is now automatically admissible. The difficulty, however, on close inspection of everything which has been transcribed for us, lies in the words which were used. Further, it is made not only less likely but as it seems to us an impossible construction by an exchange which followed the conclusion of the judge's ruling. Counsel for the Crown took the trouble to point out to the judge that he had not advanced any submission to the effect that the rule which had made what defendant A said out of court about defendant B inadmissible in the case of B, had not been abrogated. Counsel referred to the written argument which he had placed before the judge, and which it is plain the judge had seen, in which he had made it absolutely clear by paragraph 18 that his submission was that to the extent that section 114(1)(d) is invoked the old rule had necessarily gone and the evidence became evidence in the case generally. He went on to refer the judge to a further passage in the same written argument in which he had addressed the question of how the jury might be directed if the evidence were to be admitted. The judge responded briefly but in these terms:
"My view is that, in the circumstances of this case, such a direction would be more than very difficult to construct -- it would be impossible to apply in the circumstances of this case."
[23]In this court no counsel for any party has suggested that it is possible to read the observations of the judge in a way to which we adverted as a possible consideration. Counsel for the Crown, as well as counsel for the appellants, submits that it is plain that the judge did fall into the error of assuming that the old rule remained.[24]We have read and re-read the discussion and the judge's ruling. We are driven to the conclusion that that is indeed the only way in which what was said can be interpreted. It follows that to that extent, although the judge had addressed the various factors set out in section 114(2), as he had been asked to do, he had necessarily disabled himself from exercising the judgment which he was called upon by section 114(1)(d) to exercise. It is clear that he regarded the question of admissibility as concluded by what he referred to as a rule of law which no longer exists unmodified. Whereas an out of court statement made by another defendant, such as this one, was previously virtually always inadmissible, now it may be admissible and is admissible if the interests of justice make it so.[25]The next question which we have had to address is whether this court can properly conclude that although the judge's reasons were, as we have demonstrated, plainly wrong, his conclusion was nevertheless inevitably correct. There are certainly circumstances in which it is possible for this court to reach such a conclusion. In the present case, however, that would involve a decision as to where the interests of justice lay in the course of a multi-handed case, with inconsistent defences being run, defences which shifted and a mass of evidence over many days. It would involve us in undertaking that exercise not with the invaluable feel which a judge can gain as trial judge as the trial goes on, but simply on a paper consideration of one corner of the tapestry. We have come unavoidably to the conclusion that there are simply too many dangers in us attempting any such exercise.[26]We are fortified in that conclusion by the remarks which were made by this judge in the course of his ruling which are at least capable of the construction that he took the view that the various section 114(2) factors individually did not point away from admitting this evidence. We think we should make it absolutely clear that we are not to be taken as endorsing any such conclusion, if indeed that was the view of this judge. We say no more than this. First, the section 114(2) factors are not an exhaustive list. All the circumstances of the case fall to be considered when addressing where the interests of justice lie. Second, while there cannot be much doubt about factors (a) and (c), the potential importance of this evidence if true, the direction in which the other factors point is by no means straightforward. As to (b) and (g), the availability of other evidence, there was in fact a good deal of other evidence which either had been or could be given suggesting that it had been Paine who used the knife. The scientific evidence suggested that and had been given. McLean, who claimed to have been an eyewitness, could say that and in due course did and the jury could assess his truthfulness or otherwise. Factors (d) and (e), the circumstances of the statement and the reliability of its maker Harris, are, as it seems to us, likely to be critical in a case such as this. What Harris had said he had said when he was facing a charge of murder. Consideration must no doubt be given to the powerful incentive that such a person may have to make an untruthful assertion in order to try to exculpate himself by blaming somebody else, never mind any other possible pressure which may or may not have lain upon Harris on the facts of this case. We observe in passing that an assertion of this kind, exculpating oneself and blaming another, is wholly unlike a confession made against interest. Of course a confession can be false but it is inherently likely to be true for in the absence of a reason why he should do so a person is unlikely to own up to committing a very serious crime unless he did commit it. Precisely the reverse might be thought to apply to an assertion that one did not commit the offence but somebody else did. In addition, factors (h) and (i) are, in a case of this kind, also of very great importance. The impact upon the case of Paine needs careful evaluation in a case of this kind. No doubt it could have been said on behalf of Paine: "Well it is an assertion which has been made which cannot be tested in evidence by cross-examination", but he would face the difficulty of asserting that at the same time as McLean was advancing to the jury how persuasive he said the evidence was and pointing out that he (McLean) could not call Harris. So the factors in (h) and (i) need, as we say, very careful evaluation. There are, in addition, other factors which are likely to be relevant, to some of which the judge adverted. One is no doubt whether, and if so how, the jury could properly evaluate the evidence, particularly in the light of the direction which it was likely that the judge would have to give under section 35 of the Criminal Justice and Public Order Act about the absence of Harris from the witness box. Another factor, also adverted to by the judge, which may fall to be considered is the potential for manipulation by two defendants acting in concert of an application of this kind.[27]All those are simply factors which are plainly of great importance in the evaluation which any trial judge has to undertake in a case of this kind. This judge, however, plainly regarded the old rule as effectively concluding the argument. That was wrong and the consequences, which we will come to in a moment, necessarily follow. What does not follow is that we are to be taken as holding that his eventual decision was wrong.[28]It is simply not for us to say whether this evidence should have been admitted or not. The most that we can say is that the judge's reasoning unfortunately proceeded, whether to the right conclusion or the wrong one, by a process which was fundamentally fallacious, taking into account a consideration which was simply wrong. Because we cannot, sitting here and working on paper only, say what would have been the correct conclusion, it follows also that no one can say what the course of the trial would have been if the conclusion had been that this evidence had been admitted and since we do not know whether it should have been admitted or not we are unable to say what course the trial would subsequently have taken.[29]We have addressed the question of whether these various convictions are nonetheless safe. There was, no doubt, a powerful case against each of these defendants in their different ways. It is a case which any jury might have accepted whether this evidence was admitted or not. It is, however, quite impossible to say whether in the end these defendants or any one of them was convicted as a principal or as a secondary party. It is impossible to say what impact the evidence of what Harris said about who had the knife would have had, had it been given. We have reached the conclusion that it is simply impossible to say that these convictions, and it is true of all three defendants, can be said to be safe. It is simply impossible to know what course the trial would have taken had this question been addressed in accordance with the law as we have endeavoured to state it and as all counsel agree it is. The consequence of that is that without addressing any other grounds which any of these defendants might otherwise seek to adduce, we give leave to Paine who has not yet got leave to appeal, we allow the appeals of all three of them against their convictions and we quash the convictions.

LORD JUSTICE HUGHES: Mr Laidlaw, where do we go from there?

[31]MR LAIDLAW: My Lord, can I take you please to the powers to order a retrial?

LORD JUSTICE HUGHES: Yes.

[33]MR LAIDLAW: I do not need to remind the court of section 7. There is a helpful passage, as you will remember, in the commentary of Archbold at paragraph 7-112, page 108, which talks about the balance between public interest and the legitimate interest of the defendant in a situation----

LORD JUSTICE HUGHES: What is your application, Mr Laidlaw?

[35]MR LAIDLAW: For a retrial.

LORD JUSTICE HUGHES: Of all three appellants.

[37]MR LAIDLAW: Yes.

LORD JUSTICE HUGHES: Let us hear what others have to say. Mr Hislop?

[39]MR HISLOP: My Lord, the only thing I can say in resistance to that is that the offending is now some two years nine months ago. The trial was some 18 months ago. That is all I can say in resistance.

LORD JUSTICE HUGHES: Thank you. Mr Trimmer?

[41]MR TRIMMER: My Lord, nothing.

LORD JUSTICE HUGHES: Quite right. Mr Sandford?

[43]MR SANDFORD: My Lord, there is nothing I can add to that. (Pause)

LORD JUSTICE HUGHES: We have not the slightest doubt that the interests of justice require a retrial of all three appellants. In due course we shall give the usual direction which is that the trial must take place at the Central Criminal Court or at such other place as the presiding judges of the South Eastern circuit direct. The appellants must be arraigned within two months of today, unless this court directs otherwise in the meantime.

[45]MR LAIDLAW: My Lord, there should not be difficulty with the court achieving arraignment within that period. If there is we understand we need to be back before----

LORD JUSTICE HUGHES: Had they been in custody pending the trial?

[47]MR LAIDLAW: Yes, they had.

LORD JUSTICE HUGHES: Does anyone have any application?

[49]MR TRIMMER: No.

LORD JUSTICE HUGHES: They must remain in custody pending their retrial.

[51]MR LAIDLAW: Thank you very much, my Lord.

LORD JUSTICE HUGHES: Take them down, please.

[53]MR TRIMMER: My Lords, I have been reminded about the issue of reporting restrictions.

LORD JUSTICE HUGHES: Yes, you are quite right, and representation orders as well. First of all, there must be no reporting of this appeal until the trial is concluded or further order made by the trial judge. That can properly be committed to the trial judge rather than retained in this court. What about representation?

[55]MR TRIMMER: My Lord, in relation to the trial, would your Lordships so far as----

LORD JUSTICE HUGHES: Does it follow?

[57]MR TRIMMER: It should follow, yes.

LORD JUSTICE HUGHES: It may follow automatically. Yes. Is there any other consequential direction which anybody requires?

[59]MR TRIMMER: No, thank you, my Lord. Later (with Mr Trimmer and Miss Cheema present):-

LORD JUSTICE HUGHES: Mr Trimmer?

[61]MR TRIMMER: My Lord, my error. Your Lordships and my Lady know that I am privately instructed in relation to this appeal.

LORD JUSTICE HUGHES: Yes.

[63]MR TRIMMER: My application is for the costs of this appeal out of central funds to be taxed so far as those instructing me are concerned.

LORD JUSTICE HUGHES: On the basis?

[65]MR TRIMMER: That this particular applicant was successful in the end.

LORD JUSTICE HUGHES: He was, but not on the grounds which you came to argue.

[67]MR TRIMMER: My Lord, that is perfectly right, but nevertheless.

LORD JUSTICE HUGHES: We will consider it. Whilst we have got you and Miss Cheema here, may I just alert you both to this. We had a request, inconveniently after you had gone, from the law reporters, but understandably, asking whether there is any reason why the point of law in the case should not be reported, anonymising the parties, including counsel and not referring to the facts, in order to report simply the proposition that where an assertion made by one defendant is admitted under section 114 the relevant question is the question in section 114(1)(d) and, if it is admitted, the historic direction to the effect that an out of court statement is admissible only in respect of its maker no longer applies.

[69]Our immediate reaction was to say that we would need to canvass, as we then thought, in writing the views of the parties, but since we have you here can we alert you to it? On the face it, it is difficult to see any reason why that should not be reported, is it not?[70]MR TRIMMER: My Lord, for my part I think it is important it is reported quickly.

LORD JUSTICE HUGHES: It just might be of some assistance to those who have to cope with the point in a hurry in the hurly-burly of a trial.

[72]MISS CHEEMA: My Lord, I am sure it will be of extreme use to judges if it is reported, anonymised suitably, so I concur.

LORD JUSTICE HUGHES: Miss Cheema, could we ask you to take on the administrative task of letting the other parties, that is to say Mr Hislop and Mr Sandford, know and if either of them or on reflection either of you have anything further to say could you say it, by email will quite suffice, to me by 2 o'clock on Thursday? We are sitting again on Friday and would anticipate giving limited leave on Friday morning unless you persuade us otherwise.

[74]MISS CHEEMA: That would be in the absence of the parties?

LORD JUSTICE HUGHES: Yes, there is no need to come, unless of course somebody says something which requires argument, but I do not suppose they will. (Pause)

LORD JUSTICE HUGHES: We are afraid not, Mr Trimmer.

Cited in 3 later judgments