In this case, the Appellant to the House of Lords had been charged with buggery and murder. It was alleged that he had forcibly buggered a 12 year-old boy before strangling him with a scarf. The Defendant’s case was that he had attempted to bugger the boy but had desisted when the latter complained of pain.

Shortly afterwards, the Defendant had seen an individual referred to only as ‘Mark’ and had fled the scene. It was asserted that this was because he was afraid that he had been seen committing a serious offence. The Defendant alleged that it had in fact been Mark who had committed the offences. In support of this, he sought to call a number of witnesses to give evidence that Mark had been heard to say (before the body was discovered) that a young boy had been murdered. The trial judge ruled that this evidence was hearsay and inadmissible.

An application to call Mark and treat him as a hostile witness was also refused. 

The Appellant was convicted on both counts and his appeal to the Court of Appeal on the ground that the judge had erred in excluding the evidence was refused. He appealed to the House of Lords after certification of two point of law of general public importance: 

1. Wvidence when that person is not called as a witness;
2.  Whethhether the confession by a person other than the Defendant to the offence with which the Defendant s charged is admissible in eer 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 appeal was dismissed.

The House of Lords held that the principle that statements made to a witness by a third party were not excluded by the hearsay rule when they were put in evidence solely to prove the state of mind of the person making the statement or of the person to whom the statement was made applied only where the state of mind evidenced by the statement was directly in issue at the trial or of direct or immediate relevance to an issue in the trial. Their Lordships concluded that M’s alleged knowledge that a boy had been murdered did not fall into either of these categories. It was considered that the manner in which M had acquired the knowledge that a boy had been murdered was a matter of pure speculation as to which the statements of the potential witnesses could have no probative value.

It was held per curiam that the admissibility of a statement tendered in evidence as proof of the maker’s knowledge or other state of mind must always depend upon the degree of relevance of the state of mind sought to be proved to the issue in relation to which the evidence is tendered. Rationale of Decision The leading judgment with which there was unanimous concurrence was delivered by Lord Bridge. He began (at 53H) with the basic premise that “hearsay evidence is not excluded because it has no logically probative value”. 

The reason for its usual exclusion is the difficulty for even a trained judicial mind, still more a juror in determining what weight should be given to a statement by a person who the jury has not seen and which has not therefore been tested by cross-examination. However, there is an established exception to the rule against hearsay where the purpose of admitting the statement is to prove the state of mind of its maker. However, this principle only applies where the state of mind is either directly in issue or of direct relevance to an issue in the trial.

This latter proposition was established in Thomas v Connell (1838) 4 M & W 267 and the ’classic’ case of Subramaniam v Public Prosecutor [1956] 1 WLR 965. 

The principle was applied by the Court of Appeal in R v Willis [1960] 1 WLR 55. Lord Parker CJ (at p.59) referred with approval to Subramaniam stressing the issue of relevance: “…provided the evidence as to his state of mind and conduct is relevant, it matters not whether it was in regard to his conduct at the time of the commission of the offence or, as here, at a subsequent time…” In Lloyd v Powell Duffryn Steam Coal Co Ltd [1914] AC 733 concerned a claim for compensation on behalf of a posthumous illegitimate child. The mother asserted that the putative father had told her that he intended to marry her in good time before the birth.

This was supported by the deceased’s landlady and another who claimed that he had expressed to her his intention to marry. 

The judge at first instance admitted these statements as declarations against self interest. This was overturned by the Court of Appeal but the House of Lords returned to stress the consideration of relevance. Lord Moulton held (at p.751): “It can scarcely be contested that the state of mind of the putative father and his intentions with regard to the child are relevant to the issue…the attitude of mind of the putative father is that from which alone one can draw conclusions as to the greater or less probability of his supporting the child when born, and therefore evidence to prove that attitude of mind must be admissible if it be the proper evidence to establish such a fact.” Counsel for the Appellant Blastland placed particular reliance upon Ratten v The Queen [1972] AC 378 in which the disputed evidence was that of a telephone call placed by a murdered wife introduced to rebut the evidence of the Defendant husband who asserted that the shooting of his wife was an accident and that he rather than she had telephoned for assistance. 

The Privy Council allowed (at p.388) that the weighing of such evidence should be left to the jury: “The knowledge that the caller desired the police to be called helped to indicate the nature of the emotion – anxiety or fear at an impending emergency. It was a matter for the jury to decide what light (if any) this evidence, in the absence of explanation from the appellant, who was in the house, threw upon the situation which was occurring or developing at the time.” It was argued that the wife’s statements in Ratten were analogous to the statements of Mark in Blastland and should not therefore have been excluded. Lord Bridge refused to accept this reasoning arguing that the telephone call was important not only for what was said but as an act in itself since it contradicted the Defendant’s evidence; that the defendant’s denial that the call had been made led to a powerful inference that he had been in the room when it was made and that the making of the call and the wife’s state of fear evidenced by it were directly relevant to a critical issue in the trial – namely the husband’s claim that the shooting was accidental.

He concluded (at p.59B) that “there are no analogous considerations applicable in the present case.”

 Thus Lord Bridge arrived at the view that a consideration of the relevant authorities did “nothing to displace the opinion [he] expressed earlier as a matter of principle that the evidence here in question was rightly excluded”. So far as the second certified question was concerned, after expressing concern that it was to widely framed (at p.62), he reached the conclusion that it would only be safe to hold that: “…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.” In a commentary upon Blastland at [1985] Crim LR 727 (at 728), the commentator poses the difficult question of whether evidence of knowledge is therefore automatically hearsay: “…partly because of the complicating factor that the fact which the declarant purports to know is going to be one which can be established by other evidence before the enquiry into the speaker’s state of knowledge begins…The external guarantee of veracity ought to be a help, but it may lull us into a false sense of security in approaching the question of whether [a party’s] claim to ’know’ the undisputed fact is hearsay.” Such interesting considerations aside, it may be argued that the decision itself in Blastland does little to advance an understanding of the law in this area: this is principally as a result of the House of Lords sidestepping the issue by distinguishing the earlier authorities and using the ’escape route’ of lack of relevance on these particular facts. 

Trial Book

Introduction

This is an appeal from the Court of Appeal (Criminal Division). The Appellant, Douglas Blastland appeared before Bush J and a jury at Lincoln Crown Court charged with buggery contrary to section 12(1) of the Sexual Offences Act 1957, the particulars of the offence being that on 9th December 1982 he committed buggery with Karl James Fletcher, a male person aged 12 years, and with the murder of the said Fletcher. He pleaded not guilty to both counts and after a trial was found guilty on both counts by majority verdicts and was sentenced to life imprisonment on 

both counts. His appeal against conviction was dismissed by O’Connor LJ, Macpherson and Evans JJ who certified that two points of law of general public importance were involved in their decision: 

1. Whether the confession by a person other than the Defendant to the offence with which the Defendant s charged is admissible in evidence when 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. 

Issues in the Case 

The central issue in the case concerns the potential evidence of a third party known only as “Mark”. It was the Appellant’s defence at trial that he had attempted the buggery of Fletcher but had desisted when the latter complained of pain. Shortly after these events, the Appellant saw Mark and suspected that he had witnessed the attempted buggery which is in itself a serious criminal offence.

The Appellant asserted that it was in fact Mark who was the perpetrator of both the buggery and the murder. The Appellant sought at trial to adduce evidence in support of this contention in the form of statements from witnesses to the effect that following the death of Fletcher but before discovery of the body, Mark had been heard to say that “a young boy had been murdered”. Those statements were ruled inadmissible as hearsay and an application to call Mark and treat him as a hostile witness was refused. 

The appeal turns upon the status of such evidence: there is a well established exception to the rule against hearsay in relation to statements which are evidence of the state of mind of the accused. If the Appellant is able to establish that the statements of his witnesses fell into this category, they should not have been deemed inadmissible. Since this is an appeal to the House of Lords, there is no question of the introduction of any new evidence.

The validity of the original convictions was tested by the Court of Appeal and the Appellant was unsuccessful. The hearing before their Lordships will therefore consist of submissions only which must be directed at and limited two the two certified points of law. 

Appellant’s Submissions The statements made by Mark are evidence that he knew before the disappearance of Karl Fletcher had been reported to the police that a young boy had been murdered and that before the body was discovered he knew of the murder, the circumstances in which the victim had left his house and where the victim lived. That state of knowledge is evidence from which, if it had been left to the jury, such a jury might have reasonably inferred that it was Mark that had perpetrated the buggery and murder. If such an inference had been drawn, there would then inevitably have been the requisite reasonable doubt of the Appellant’s guilt on both counts and he ought therefore properly to have been acquitted.

Evidence of Mark’s state of knowledge could have been given by three witnesses:

• Nellie Anne Sherriff;
• John William Sherriff; and,
• June Annely Atkin.

At first instance, Bush J ruled that their evidence was hearsay and therefore inadmissible. It is essential to consider the nature of hearsay. The use of words is capable of being a fact in its own right.

This is independent of considerations of the veracity of the words spoken. The well established authorities of Subramanian v Public Prosecutor [1956] 1 WLR 965 and Ratten v The Queen [1972] AC 378 support the proposition that the state of a persons knowledge is to all intents and purposes the same as his state of mind. Evidence of state of mind is a fact and thus properly excluded from the rule against hearsay and it therefore follows that evidence of a particular state of knowledge should be similarly treated. It is conceded that the evidence of state of mind must be relevant to an issue in the case. It might be argued that in this case, the state of mind of Mark was not relevant to the central issue in the case, namely whether the Appellants was guilty of the offences with which he is charged but that argument is refuted: there exists physical evidence linking Mark to the offences – his presence at or near the scene on the night in question, an injury to his penis and the presence of mud on his trousers.

It is correct that a jury should be invited to draw inferences from such factors. It is therefore submitted that the statements made by him to the witnesses were similarly facts from which a jury might properly draw inferences in the same way. 

As a result of the judge’s decision to exclude the statements of these witnesses, the jury was left with only a partial set of facts from which to draw inferences. Although the appeal to the Court of Appeal was unsuccessful, the Court expressed the view that had such material been left to the jury a conviction would have been “improbable” and was clearly sufficiently concerned to certify the issue as a matter of public importance. If the Court of Appeal had admitted the disputed evidence it therefore follows that it would in all probability have then been required to hold the convictions unsafe and unsatisfactory.

It is instructive to consider what the position would have been had Mark himself been charged with these offences. In addition to statements to the witnesses, he made certain admissions to the police. These are inadmissible as a confession exception to the hearsay rule because he has not been charged. 

However, in the event that he had been the Defendant, those admissions would have been admissible. It is conceded that even in these circumstances, the statements to the witnesses would not have been admitted as exceptions to the hearsay rule. However, they would have been admissible as primary evidence; specifically, that he had knowledge of certain facts at the time that the statements were made.

In such circumstances, there is no offence to the hearsay rule since the evidence is evidence of a particular state of knowledge and is not relied upon to establish the veracity of any fact stated. 

The authority of Ratten (supra) is particularly persuasive. In that case, the appellant’s wife had been killed by the discharge of a cartridge from a shotgun indisputably held by the appellant at the time. The time of shooting was established by independent evidence as between 1.12pm and 1.20pm.

The appellant asserted that he had been cleaning the shotgun and it had discharged accidentally. He claimed that following the “accident” he had telephoned for an ambulance. However, the evidence of a telephonist at the exchange was that at 1.15pm she had received a call from a woman who was hysterical and sobbing requesting the police. Lord Wilberforce held the evidence of the telephone call admissible because it was directly relevant to the issue and was part of the res gestae. It was relevant because it tended to show that contrary to the evidence of the appellant, a call was made immediately before the shooting thus casting doubt upon the veracity of the appellant’s account.

It was further held that the evidence was admissible because the evidence of the wife’s emotional state might entitle a jury to draw the inference that she was in a state of fear. 

By analogy with Ratten therefore, the evidence of Mr and Mrs Sherriff and Ms Atkin should have been admitted. There is a direct comparison to be drawn between the state of mind evinced by the wife in that case and the state of mind manifested by Mark in this case. Although as a decision of the Privy Council, the case is not strictly binding upon this House, the composition of the Board (Lords Reid, Hodson, Wilberforce, Diplock and Cross) elevates it to the status of highly persuasive authority.

The case of Reg. v Moghal (1977) 65 CrAppRep 56 is also of weight and relevance to this appeal. 

In that case, only two parties had been present during the murder of the victim – Sadiga and Moghal. At his trial, Moghal claimed that Sadiga had carried out the killing and that he had been no more than a terrified spectator. The evidential argument centred upon a tape-recording of a family meeting some six months earlier in which Sadiga had expressed her hatred of the victim and her determination to kill him.

Following the conviction of Moghal, the Court of Appeal held that the tape recording was admissible on the ground that her state of mind at the time that these statements were made was relevant to the Appellant’s defence. This therefore represents a further example of a situation in which state of mind is admitted as a fact from which a jury can draw such inferences as it deems appropriate. Although a civil decision, authority for the same proposition can be drawn from Lloyd v Powell Duffryn Steam Coal Co Ltd [1914] AC 733. That was a case concerning a claim for compensation brought by the mother of a child of a workman who was killed during the course of his employment. The parties had not married but evidence was available to the effect that prior to his death the deceased had stated his intention to third parties to marry the child’s mother.

The House of Lords admitted evidence of the words spoken to prove his “belief” (Lord Atkinson), his “knowledge” (Lord Shaw) or his “state of mind” or “attitude of mind” Lord Moulton) which were provable not only as a result of direct action but also on the basis of what he had said to other people. 

Finally, in Reg. v Roberts (John Marcus) (1984) 80 CrAppRep 89 both the trial judge and the Court of Appeal were prepared to hold that evidence from someone who had heard words spoken by someone who was not a party to a crime which were sufficient to demonstrate a knowledge of the crime were capable of giving rise to an inference that the speaker had some involvement in the commission of the offence. In all the circumstances, therefore, the statements made by Mark to the witnesses should be admitted.

They are significant in two respects: they serve to show not only that he knew of the crime but, by virtue of the fact that they were made variously before the announcement of the disappearance and before the finding of the body, they demonstrate a state of knowledge that can only have been possessed by someone with at the very least a close connection to the events which form the basis of the indictment. It should be stressed that it is not sought to introduce these statements as in any way probative of the veracity of the allegation that Mark committed the offences, rather they go only to his state of mind. 

However, that coupled with the physical evidence, should have been sufficient to persuade a jury of reasonable doubt as to the guilt of the Appellant. Their exclusion renders the convictions unsafe and unsatisfactory. Respondent’s Submissions The attempt to argue that it is sought to introduce the statements purely to demonstrate the state of mind of Mark is disingenuous.

The object of the introduction of this evidence is clearly to persuade a jury that the Appellant was not guilty – not by virtue of some other factor such as the perceived truth of his alibi but rather by introducing the concept that it was Mark who was himself guilty of the murder. In those circumstances, it is a combination of his apparent knowledge of certain details and other potentially incriminating physical evidence which is supposed to lead to an inference of his guilt. When viewed in this context, the evidence is not limited to state of mind but is an attempt to demonstrate that he had knowledge of the offences. 

A statement as to knowledge of the offences should properly be regarded in the same light as evidence of an admission which, unless the speaker is charged, offends against the rule against hearsay and is inadmissible. No distinction should be made between out of court statements related in evidence to prove a fact directly and the their recounting to demonstrate a state of knowledge which, if the necessary inferences are drawn, proves the same fact indirectly. Reg.

v Gunnell (1886) 16 Cox CC 154 is authority for the proposition that this offends against the basic rule of hearsay. If such evidence is admitted, the jury ay be misled into believing that the drawing of such inferences is legitimate and should be accorded the same weight as other aspects of the evidence in the case. This is demonstrably not the case particularly by virtue of the fact that this is evidence which cannot be weighed in the same way as direct testimony and cannot be challenged by cross examination. If such evidence were to be admitted as a matter of course, it opens the possibility of collusion and fabrication – for example, witnesses could be prevailed upon to deliver perjured testimony of statements allegedly made as to knowledge of offences to which a jury would then attach an inappropriate degree of weight. 

Next, there is a risk that trials would become prolonged and descend into consideration of a myriad of secondary issues as a result of the parties arguing over the interpretation that should be attached to particular statements. The authorities cited by the Appellant are distinguishable in the present case. For example, in Ratten the telephone call from a woman in distress served directly to disprove the assertion of the Appellant that he had called for an ambulance.

The fact of such a telephone call from the home of the victim was highly persuasive of the contention that the shooting had not been an accident. Most compelling of all is the distinction to be drawn between the position of the maker of the statement in that case who might reasonably be assumed to have been the victim and Mark in this case upon whom it is attempted to fix responsibility for the offences. The prejudice that will be suffered as a result of a jury being allowed to draw such inferences of guilt elevates this case into an entirely different category. 

The potential mischief that would be caused by allowing the introduction of hearsay in this case is out of all proportion to the benefit that was achieved in Ratten by admitting evidence of the extraneous factors of the telephone call and the distress of the wife. In any event, however distinguished the composition of the Board in that case, a decision of the Privy Council is not binding upon this House. In Moghal, the passage relied upon by the Appellant was obiter.

Further, this authority is far ore complicated upon its facts than the bald dictum would tend to suggest. Sadiga had initially been jointly charged with Moghal but had been successful in an application for a separate trial at which, for reasons which are not altogether clear, she was acquitted. 

The admission of the tape recording of the family conference had not been the subject of a formal application at the original trial but had merely been canvassed by the judge and it may well be that 

the appellate court was influenced by a desire to remedy any injustice which this may have been perceived to cause. It should be borne in mind particularly that Sadiga was on any view intimately connected to the circumstances of the commission of the offence and was herself also charged with murder. There is therefore a sharp distinction to be drawn between her position and that of Mark in this case.

Reliance should be placed upon the example of Mawaz Khan v The Queen [1967] 1 AC 454 in which two defendants were jointly charged with murder. The primary evidence was circumstantial. They had both made statements to the police providing the same alibi and the Crown called direct evidence to prove its falsity. In a direction to the jury, the judge at first instance stated: “A statement which is made by an accused person in the absence of the other is not evidence against the other; it is evidence against the maker of the statement but against him only…if you come to [the conclusion that there was an attempt to fabricate a joint story] then the fabrication of a joint story would be evidence against both”. This direction was the subject of an appeal but this was ultimately dismissed by the Privy Council. 

Therefore, while the state of mind of co-accused in concocting a false alibi might properly be used as evidence against them on the basis of the inferences that can be drawn from that fact, the indirect statements of Mark tending to demonstrate a knowledge of the crime belong in an entirely different category and represent a far lower order (and therefore unsafe) level of proof. The Appellant’s submissions in respect of Reg. v Roberts (John Marcus) (1984) 80 CrAppRep 89 are similarly fallacious.

It is suggested that because the statements were put in evidence to show state of knowledge and for that limited purpose only, they could not be described as hearsay. However, it is submitted that the correct rational of the decision is as follows:

• If the statements were put in solely to prove knowledge, they would not be excluded as hearsay;
• Such statements cannot be put in evidence as the basis of an inference as to a source of knowledge for which there was no rational foundation;
• The knowledge, per se, was of no relevance to the issue of whether the appellant was guilty of the murder.

It is submitted that this is the correct approach in this case. The critical issue is that of relevance. The central issue in the case is the guilt or innocence of the Appellant on the counts of buggery and murder.

There is other evidence upon which a jury (albeit by a majority) was satisfied beyond reasonable doubt of the guilt of the accused. The attempt to introduce the evidence of the statements made by Mark should be regarded as not germane to that central question. While it is fair to acknowledge that proof beyond reasonable doubt that Mark was solely guilty of the offences would exonerate the Appellant, the evidence which it is sought to adduce falls far short of that. It is significant that by contrast with, for example Moghal, Mark has never been charged with the offences. 

Indeed, on the contrary, his attempts on occasion to make certain admissions of guilt to the police were disregarded. Against that background, the mischief that would be done to the operation of the rule against hearsay by allowing evidence of statements made to third parties cannot be justified by reference to the probable probative value of such evidence which is wholly dependant upon an inference of guilt where there is no direct evidence of the same. The attempt to characterise these statements as facts rather than statements is a fiction.

They should be regarded for what they are – words which are put forward as tending to prove the truth or otherwise of their own subject matter. In those circumstances, there can be no clearer breach of the hearsay rule. Disposal If the appeal succeeds, the convictions in respect of buggery and murder should be quashed. The Appellant had attempted at trial to plead guilty to attempted buggery. In the event of a successful appeal, that plea should be accepted and the Appellant either sentenced by the House of Lords or the case should be remitted to the Court of Appeal.

Obviously, in the event of the appeal being dismissed, the existing life sentences will stand. 

Bibliography 

1. R. v Blastland [1986] AC 41 
2. Case Comment, [1985] Crim LR 727 Malek, H., (Ed.), 
3. Phipson on Evidence, (16th Ed., 2005) Murphy, P., 
4. Murphy on Evidence, (7th Ed., 2000)

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