AS TO THE ADMISSIBILITY
Application No. 12045/86
by Douglas BLASTLAND
against the United Kingdom
The European Commission of Human Rights sitting in private on
7 May 1987, the following members being present:
MM. G. SPERDUTI, Acting President
J. A. FROWEIN
F. ERMACORA
G. JÖRUNDSSON
G. TENEKIDES
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
H. G. SCHERMERS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr. K. ROGGE, Head of Division acting as Secretary to the
Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 30 July 1985 by
Douglas BLASTLAND against the United Kingdom and registered on
17 March 1985 under file No. 12045/86;
Having regard to:
- the reports provided for in Rule 40 of the Rules of Procedure
of the Commission;
- the Commission's decision of 18 July 1986 to bring the
application to the notice of the respondent Government and
invite them to submit written observations on its admissibility
and merits;
- the observations submitted by the respondent Government on
20 October 1986 and the observations in reply submitted by
the applicant on 22 December 1986;
Having deliberated;
Decides as follows:
THE FACTS
The facts apparently not in dispute between the parties may be
summarised as follows.
The applicant is a United Kingdom citizen, born in 1957. At
the date of registration of this application, he was detained at H.M.
Prison Wakefield, England. He is represented before the Commission
by Mr. Gilbert Blades, solicitor, Lincoln.
On 14 October 1983 the applicant was convicted of the buggery
and murder of a 12 year old boy in Gainsborough, Lincolnshire. He was
sentenced to life imprisonment.
The applicant's defence was that he had not committed the
crimes as charged, but that he had done no more than acts of gross
indecency or attempted buggery with the boy. He had then been
frightened off by the appearance of a third party, who might have been
a certain MH.
In order to exculpate himself, the applicant sought to adduce
certain statements by MH which had been procured by the prosecution in
the course of their investigations and had been made available to the
defence. Defence counsel applied to the trial judge for the admission
of evidence of the following statements:
(a) Police interviews of MH who had confessed to having committed
the crimes, but who subsequently retracted, remade, and finally
retracted his confession.
(b) Statements made by MH to his girlfriend on the night of the
murder, at a time when the victim's disappearance had not been noticed
by his family or reported to the police, that a young boy had been
murdered in Gainsborough.
(c) Statements made the following morning, at a time when the body
of the victim had not yet been found, by MH to other persons that a
young boy had been murdered, that the body was on a local playing
field, that the victim had had an argument with his parents before
leaving his home on the night he was murdered and that the boy lived
at a particular address. This information was substantially true.
The prosecution position was that MH had been fully
investigated, but they had concluded that there was no objective case
against him, unlike the case against the applicant, which included
forensic evidence.
The trial judge ruled that the evidence was inadmissible as it
was all hearsay.
A second application by the defence was also refused by the
trial judge, an application that MH be called to give oral evidence,
but that the defence be allowed to cross-examine him from the outset.
Nevertheless, other evidence about MH was put before the jury
by way, inter alia, of expert medical evidence and a schedule of
the facts agreed by the parties. At the end of the trial, the trial
judge delivered a full summary of the prosecution and defence cases
to the jury.
The hearsay rule has been described as follows:
"Express or implied assertions of persons other than the
witness who is testifying, and assertions in documents
produced to the court when no witness is testifying, are
inadmissible as evidence of the truth of that which is
asserted." ("Evidence" by Professor Cross, 3rd Edition,
p. 387)
The Court of Appeal, in its judgment of 21 December 1984,
upheld the decisions of the trial judge. Lord Justice O'Connor,
delivering the judgment of the court, dealt briefly with the evidence
referred to at (a) above, finding that he was bound by previous
decisions of the Court of Appeal itself (Turner 61 Cr App R 67)
in which the Court of Appeal found that such a confession as that made
by MH was not admissible through the mouth of the person to whom it
was made, and the House of Lords (Myers v. DPP , AC 1001) to the
effect that exceptions to the rule against hearsay could not be newly
created.
In criminal cases the acknowledged exceptions to the hearsay
rule include confessions, provided that they are used against the
party who made them and can be regarded as voluntary, and statements
which can be regarded as part of the res gestae, that is
statements made in the heat of the moment which can be seen as part of
the event itself. Evidence will be regarded as "original evidence" and
not hearsay if it goes to the issue of the state of mind of the maker
of a statement, and it is not intended to prove the truth of what the
maker of the statement said.
As regards the evidence (b) and (c) above, Lord Justice O'Connor
held that it could not fall within the exception concerning proof of
a state of mind:
"The defence sought in reality to admit the evidence of MH's
state of knowledge in order to ask the jury to infer that he
may have been present and the murderer. That is outside the
state of mind line of cases and over the border into the
province of proof of fact and truth ....
We are satisfied, having considered the matter in full, that
the evidence was rightly excluded by the learned judge on the
ground that it was hearsay."
Leave to appeal to the House of Lords was refused, but the
following questions were certified as points of law of general public
importance:
(1) Whether the confession by a person other than the defendant to
the offence with which the defendant is charged is admissible
in evidence where that person is not called as a witness.
(2) Whether evidence of words spoken by a third party who is not
called as a witness is hearsay evidence if it is advanced as
evidence of the fact that the words were spoken and so as to
indicate the state of knowledge of the person speaking the
words if the inference to be drawn from such words is that the
person speaking them is or may be guilty of the offence with
which the defendant is charged.
The House of Lords granted leave to appeal in respect of the
second point only and, by its judgment of 25 July 1985, upheld the
conclusions of the Court of Appeal, rejecting the case. It confirmed
previous case law that the hearer of an oral statement can give
evidence of that statement to establish the state of mind or knowledge
of the maker of the statement at the time it was made, but found that
MH's knowledge of the murder on the evening when it took place and the
following morning was of no probative value to the issue of whether
the applicant had committed the offences. The statement was therefore
rightly withheld from the jury.
Lord Bridge of Harwich held as follows:
"Hearsay evidence is not excluded because it has no logically
probative value. Given that the subject-matter of the hearsay is
relevant to some issue in the trial, it may clearly be
potentially probative. The rationale of excluding it as
inadmissible, rooted as it is in the system of trial by jury, is
a recognition of the great difficulty, even more acute for a
juror than for a trained judicial mind, of assessing what, if
any, weight can properly be given to a statement by a person whom
the jury have not seen or heard and which has not been subject to
any test of reliability by cross-examination. As Lord Normand
put it, delivering the judgment of the Privy Council in Lejzor
Teper v. The Queen A.C. 480, 486:
'The rule against admission of hearsay evidence is
fundamental. It is not the best evidence and it is not
delivered on oath. The truthfulness and accuracy of the
person whose words are spoken to by another witness
cannot be tested by cross-examination and the light which
his demeanour would throw on his testimony is lost.'
The danger against which this fundamental rule provides a
safeguard is that untested hearsay evidence will be treated as
having a probative force which it does not deserve.
It is, of course, elementary that statements made to a witness by
a third party are not excluded by the hearsay rule when they are
put in evidence solely to prove the state of mind either of the
maker of the statement or of the person to whom it was made.
What a person said or heard said may well be the best and most
direct evidence of that person's state of mind. This principle
can only apply, however, when the state of mind evidenced by the
statement is either itself directly in issue at the trial or is
of direct and immediate relevance to an issue which arises at the
trial. It is at this point, as it seems to me, that the argument
for the appellant breaks down. The issue at the trial of the
appellant was whether it was proved that the appellant had
buggered and murdered K. MH's knowledge that K had been murdered
was neither itself in issue, nor was it, per se, of any relevance
to the issue."
Thus, in answer to the general question posed by the case,
Lord Bridge of Harwich concluded as follows:
".... the admissibility of a statement tendered in evidence
as proof of the maker's knowledge or other state of mind
must always depend on the degree of relevance of the state
of mind sought to be proved to the issue in relation to
which the evidence is tendered."
COMPLAINTS
The applicant complains of an unfair trial, in violation of
Article 6 para. 1 of the Convention, in that the United Kingdom courts
refused to admit vital evidence tending to implicate a third party of
having committed the crimes in question , and hence pointing to the
applicant's innocence.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 30 July 1985 and registered
on 17 March 1986.
After a preliminary examination of the case by the Rapporteur,
the Commission considered the admissibility of the application on
18 July 1986. It decided to give notice of the application to the
respondent Government, pursuant to Rule 42 para. 2 (b) of the Rules of
Procedure, and to invite the Government to submit written observations
on the question whether the applicant's inability to adduce the
statements of MH at his trial interfered with his right to a fair
hearing under Article 6 para. 1 of the Convention.
The Government's observations were submitted on 20 October
1986, to which the applicant replied on 22 December 1986, legal aid
having been granted on 30 October 1986 by the President of the
Commission for the applicant's legal representation before the
Commission.
SUBMISSIONS OF THE PARTIES
The Government
1. The facts
The Government acknowledges the facts of the case as established
by the domestic courts, supplemented as follows:
In the course of their investigations into the murder of the
boy, K, the police took statements from a large number of people who
were not called by the prosecution to give evidence at the applicant's
trial. Copies of these statements were either supplied to the
applicant's solicitors or available to them for consultation.
The Government states that MH was not called to give evidence
because it was clear that his evidence was such that the jury could
not reasonably be invited to place any reliance on it.
The applicant could have called MH to give evidence if he had
so wished.
2. Relevant domestic law and practice
In practice the prosecution is under a general duty to make
available to the defence any details in their possession about
material witnesses and evidence.
The court may, on the request of either prosecution or
defence, oblige a witness to attend and give evidence.
As a general rule a party who calls a witness may not cross-
examine him, unless he proves to be an adverse or contradictory
witness, in which case, with the judge's leave, he may be questioned
about a previous inconsistent statement he had made. (Section 3
Criminal Procedure Act 1865, "Denman's Act") A witness is considered
adverse only when in the opinion of the judge he bears a hostile
animus to the party calling him and so does not give his evidence
fairly and with a desire to tell the truth.
The presiding judge has the right to call a witness not called
by either the prosecution or the defence, and without the consent of
either, if in his opinion this course is necessary in the interests of
justice. (R v. Wallwork 42 Cr. App. R. 153)
A witness other than the defendant is privileged to refuse to
answer any question which might tend to incriminate him. In practice
the judge will warn a witness when necessary, if the witness does not
claim the privilege himself.
Apart from common law and statutory exceptions, hearsay
evidence (whether oral or written) is inadmissible in criminal
proceedings. The judge has no discretion to admit such evidence.
(Myers v. DPP A.C. 1001) The rule may be stated as follows:
"Former statements of any person, whether or not he is a
witness in the proceedings, may not be given in evidence if
the purpose is to tender them as evidence of the truth of
the matters asserted in them, unless they were made by a
defendant and constitute admissions of fact relevant to those
proceedings."
The extent of the rule was described by the Judicial Committee
of the Privy Council in Subramaniam v. Public Prosecutor (1956) 1 WLR
956 at 969 as follows:
"Evidence of a statement made to a witness .... may or may not
be hearsay. It is hearsay and inadmissible where the object
of the evidence is to establish the truth of what is contained
in the statement. It is not hearsay and is admissible when it
is proposed to establish by the evidence, not the truth of the
statement, but the fact that it was made."
3. Admissibility and merits
The Government refers to the Commission's constant case-law
that the question of a fair hearing under Article 6 para. 1 of the
Convention must be examined in the light of the entire proceedings and
not in the light of one particular incident or issue. The judge's
summing up in this case discloses the full extent of the prosecution
case against the applicant and his defence. No challenge to the
fairness of this summary has been made in the present case.
The hearsay rule, applying to both prosecution and defence
equally, is based on the principle that juries should not be invited
to rely on evidence of facts which is not tested by cross-examination.
An examination of the police interview with MH confirms the
correctness of the prosecution and judge's decisions not to call MH as
a witness. The interests of justice did not require his testimony.
The defence was thereby effectively precluded from cross-examining MH.
However, he could not have been required to incriminate himself. The
defence could have called MH as a witness for the defence.
The Government submits that the evidence of witnesses in
relation to MH's knowledge of the events in question was also rightly
excluded. The defence's purpose was to infer that MH was at the scene
of the crime and probably committed it. It would not have been
right for the jury to be invited to draw such an inference from
evidence which has not been tested by cross examination.
The Government emphasises the Commission's case-law on the
principle of equality of arms underlying Article 6 para. 3 (d) of the
Convention. This principle was clearly observed in the present case.
Moreover the defence had a full opportunity to examine all the
material collected by the prosecution, even if it was not used by the
prosecution at the trial.
In conclusion, the Government requests the Commission to
declare the case inadmissible as being manifestly ill-founded or, in
the alternative, to declare that there has been no breach of the
Convention.
The applicant
The applicant submits that the hearsay rules, as correctly
described by the Government, denied the applicant full equality of
arms with the prosecution, and thus constituted a breach of
Article 6 para. 1 of the Convention.
He distinguishes between the exclusion of properly categorised
hearsay evidence, and the exclusion of wrongly categorised hearsay
evidence in his case by the trial judge and Court of Appeal, but which
the House of Lords deemed rightly excluded because of its irrelevance.
1. Properly categorised hearsay evidence
In this case MH's alleged statements to the police, including
his confessions, were hearsay evidence, as were the applicant's alleged
statements and admission that he had sexually assaulted the victim.
The applicant was precluded from having MH's statements adduced as
evidence, whereas the prosecution were able to adduce the applicant's
alleged admissions by virtue of the recognised exception to the
hearsay rule in Myers v. DPP (1965) AC 1001.
The applicant's defence was that although he was directly
implicated in a sexual assault of the victim he had not killed him.
MH may have committed the murder. If the jury had accepted this as a
possibility they would have been obliged to acquit the applicant of
murder. The prosecution and the applicant were therefore faced with
similar forensic tasks.
The operation of the hearsay rule in the present case put the
applicant at a significant disadvantage to the prosecution and was in
breach of Article 6 para. 1 of the Convention.
2. Wrongly categorised hearsay evidence
As regards certain statements which MH allegedly made to
persons other than the police on the night and following morning of
the murder, the applicant contends they were not hearsay evidence.
The applicant was not seeking to tender these statements "as evidence
of the truth of the matters asserted in them" (Myers v. DPP supra.),
but as evidence that MH possessed knowledge of the murder at a time
and in circumstances from which the jury could infer that he was or
might have been the murderer. The contents of the statements had
already been proved aliunde and was common ground between the
prosecution and the defence.
The applicant takes issue with the ruling of the House of
Lords that these alleged statements by MH were irrelevant, and with
the argument that it would not have been right to invite the jury to
draw inferences from such untested evidence. The prosecution conceded
certain evidence relating to MH; this evidence was admitted in court
and tended to implicate him in the murder of K. However the
prosecution chose not to call MH as a witness, so that certain
explanations could be required of him and he could have been cross-
examined.
MH either knew about the murder of K because he witnessed it
or committed it himself. In the former case he would have been the
principal prosecution witness. Thus only the second "most obvious"
possibility remains (cf. judgment of Lord Bridge of Harwich, House of
Lords). Given the burden and standard of proof in an English criminal
trial, the applicant only had to establish this as a possibility, and
no more, to secure his acquittal.
Although proceedings have to be considered as a whole for the
purposes of Article 6 para. 1, a particular incident or issue may be
so important as to be decisive for the whole case. (Nielsen v.
Denmark, Comm. Report 15.3.61 Yearbook 4 p. 494 at 548) The applicant
submits that the rulings complained of were of just such importance.
The Commission's approach should properly be to consider
whether the evidence was relevant to the applicant's case (as it
undoubtedly was) and whether, if it had been admitted, it would have
influenced the verdict of the trial court (as indeed it would). The
discretionary powers of the domestic courts in this field are
superceded by the Commission's duty to review the fairness of a
hearing under Article 6 para. 1 of the Convention.
Apart from the applicant's submissions concerning the
principle of equality of arms, the applicant also submits that the
trial court's refusal to hear a witness for the defence, which must
encompass evidence that the defence wishes to adduce from that
witness, is capable per se of amounting to a violation of
Article 6 para. 1, as in this case.
In his original submissions to the Commission, the applicant
had pointed out that the Criminal Law Revision Commission in 1972
concluded that, subject to certain safeguards, hearsay evidence should
be admissible in criminal trials, but that the Commission's
recommendations have largely not been implemented.
In conclusion, the applicant requests the Commission to
declare the application admissible.
THE LAW
The applicant has complained of an unfair hearing in that the
United Kingdom courts excluded certain evidence at his trial, which
evidence tended to implicate a third party as the offender rather than
the applicant. He claims that there was a breach of the principle of equality
of arms, inherent in Article 6 para. 1 (Art. 6-1) of the Convention, the
relevant part of which provides as follows:
"1. In the determination .... of any criminal charge against
him, everyone is entitled to a fair and public hearing within
a reasonable time by an independent and impartial tribunal
established by law."
The applicant also refers to Article 6 para. 3 (d) (Art. 6-3-d) of the
Convention:
"3. Everyone charged with a criminal offence has the
following minimum rights:
....
(d) to examine or have examined witnesses against him and
to obtain the attendance and examination of witnesses on
his behalf under the same conditions as witnesses against
him ...."
The Commission notes that in the present application the
evidence in question was categorised and excluded as hearsay and
irrelevant to the case against the applicant. The hearsay rule,
subject to certain exceptions, excludes, inter alia, evidence of
previous statements made by persons who do not give oral testimony at
the trial. The purpose of the rule in the jury trial system is partly
to ensure that the best evidence is before the jury, who can evaluate
the credibility and demeanour of the witness, and partly to avoid
undue weight being given to evidence which cannot be tested by
cross-examination. The Commission finds the purpose of the rule
legitimate, and not, in principle, contrary to Article 6 para. 1
(Art. 6-1) of the Convention.
The applicant claims to have suffered inequality of arms with
the prosecution by the exclusion of certain statements made by a third
party, whereas his own previous statements to the police were allowed
to be put in evidence against him as the defendant. The Government
contests the applicant's claim and points out that not only could the
applicant have called the third party as a witness for the defence,
but also that the defence was afforded a full opportunity to examine
all the material collected by the prosecution.
According to the Court and Commission's constant case-law,
the principle of equality of arms, i.e. the procedural equality of the
accused with the prosecution, which is explicitly reflected in Article 6 para.
3 (d) (Art. 6-3-d) of the Convention, is an inherent element of the notion of a
fair hearing, within the meaning of Article 6 para. 1 (Eur. Court H.R.
Neumeister judgment of 27 June 1968 Series A No. 8 para. 22 of THE LAW, No.
8395/78 Dec. 16.12.81 D.R. 27 p. 50 and No. 9000/80 Dec. 11.3.82 D.R. 28 p.
127). However, the Commission notes the facts of the present case emphasised
by the Government, in particular the possibility for the defence to have called
the third party in question. Although that person could not have been made to
incriminate himself, the Commission considers that this possibility, together
with that of calling other original evidence about him (which evidence,
including medical expertise, was admitted), placed the prosecution and defence
on an equal footing. The Commission also notes that the applicant was afforded
full facilities to challenge the hearsay ruling of the domestic courts and the
prosecution case against him, which included forensic evidence. In these
circumstances, the Commission concludes that the principle of equality of arms
was respected in the present application.
The Commission concludes that an examination of the present
case as a whole does not disclose any appearance of a violation of Article 6
para. 1 (Art. 6-1) of the Convention. It follows that the application must be
rejected as being manifestly ill-founded, within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Head of Division acting as Secretary
to the Commission Acting President of the Commission
(K. ROGGE) (G. SPERDUTI)