The fundamental tussle in Hayter was over whether the House of Lords should judicially change the law relating to hearsay, when both the Law Commission and Parliament had not. By a majority of 3-2 the law was changed. Lords Brown and Carswell dissented.
Two aspects of Hayter are of interest here. First, should a judge, faced with a no-case submission at the close of the prosecution case in a joint jury trial, be permitted to make a provisional ruling to the effect that there is a case against one accused if and only if the jury convicts another accused? Second, should the fact of one accused’s guilt, proved by his confession in the absence of the other accused, be able to be used as evidence against that other accused? Because the second of these questions was answered "yes", the first question disappeared as an issue, as the confession became evidence against the other accused thus constituting the case to answer.
An important limitation to the scope of this change in the law was specified: the confession by one accused (in the absence of the other) is only evidence against the other to the extent that it was made against the self-interest of the confessor; it is not evidence against the other accused to the extent that it asserts the guilt of that other accused. This recognises the basis upon which the confession can be assumed to be reliable.
It should also be remembered that this new exception to the hearsay rule only comes into play when the confession of one accused is relevant to the guilt of another.
This is, no doubt, a sensible development. Lord Steyn, at para 25, called it a "a principled evolution in keeping with modern developments, statutory and judge made, which corrected some of the worst absurdities of the law of evidence of a bygone era." He likened it, unconvincingly, to the joint enterprise exception to the hearsay rule. I say "unconvincingly" because the confession was not in furtherance of the pursuit of the common enterprise on the facts of Hayter, and the analogy is potentially confusing. The "in furtherance" requirement is what gives the statement its apparent reliability in joint enterprise cases, and a foundation in reliability is essential to the "principled evolution" of which Lord Steyn speaks.
The mental gymnastics that concerned Lord Carswell, at para 73, arose on the assumption that the hearsay rule remained unchanged, so that the jury would use the contents of the statement only against its maker, yet the guilt of that person, but not the contents of his confession, could be used against the other accused. However, on the law as changed by the majority, gymnastics are still required when a statement has elements of confession together with elements of accusation against the co-accused. In such cases, the confessional aspects are now admissible against the co-accused, but not (as has always been the case, except where the joint enterprise exception applies) the accusatory elements. Such gymnastics are not all that difficult.
In summary, it seems that the proposed limits of the new rule are:
- joint trial
- the confessing accused must be guilty for it to be possible that the other can be convicted
- only confessional evidence against self-interest is admissible against the other accused, for example to explain circumstantial evidence
However, when one remembers that the rules against hearsay were developed to guard against unreliable evidence, the appropriateness of these limits is difficult to justify once it is accepted that the against-interest confession is reliable. There is a likelihood that Hayter will encourage a shift towards reliability as the criterion for admissibility.
Accepting the appropriateness of this development of the hearsay rule, we may nevertheless have some doubts about suggestions that Lord Steyn made about the first question referred to here: the no-case ruling. In remarks that seem to have been intended to be of general application, at para 28, he said that the dynamics of a criminal trial may require that rulings of a conditional nature be given. This is correct, to an extent, as far as the example he gave is concerned: the confronting of the accused with accusations that he does not forthrightly deny. There may be situations where the judge has to let evidence of accusations be given, subject to later evidence that he did not deny them; but this, in the context of jury trials, is a little unlikely, as the judge will have the depositions and will already know whether the accused denied such accusations. Lord Steyn thought these situations to be analogous to that of the no-case submission at the end of the prosecution case. Plainly, the situations are completely different. To suggest otherwise is to diminish the significance of the closing by the prosecution of its case.