Lexploria

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 <1975> 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 <1965>, 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 <1952> 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 <1958> 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 <1965> 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)

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BLASTLAND v. THE UNITED KINGDOM

BLASTLAND v. THE UNITED KINGDOM

LEXI