NEWTON, Benjamin Eliot on 25 October 20112 people recommend this

A man accused of buggery and murder claims to have evidence that a 3rd party known as M had detailed knowledge of the murder before the body had even been found. M had marks on his body that could feasibly correspond with committing the murder. Most importantly, three witnesses gave evidence as to what M had said that, if were M accused, would correspond to a confession. The Court refused to admit the evidence on the basis that it was hearsay. The ground of appeal to the House of Lords was:

“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 those words if the inference to be drawn from such words is that the person speaking them is or may not be guilty of the offence with which the defendant is charged.”  Para 52 D-F 

This issue is peculiar to alibi cases; since any defendant who claims an alibi impliedly accuses a third party. Unusually in this case, the Defence attempted to explicitly accuse M and wished to bring witnesses to prove it. The Defence argued that these statements were introduced for the purpose of demonstrating M’s state of mind rather than for the purpose of proving any facts. The Judge excluded these statements on the basis that the central purpose was to call evidence of an “implied admission” to the crime by M and therefore to prove facts rather than any state of mind.

In the House of Lords, Lord Bridge further concluded that as a matter of principle, it was not the knowledge of M that was important, but the method of obtaining it. Since he could have gained this information in ways other than that of being the killer, to admit this evidence would have ask the jury to speculate on matters which were not relevant to the trial.

This latter reasoning appears troubling if considered in a practical sense. Were M to be on trial, these same statements would immediately have been admitted as confession evidence, and were he to testify then M would be cross-examined.

Yet if a Defendant claims his innocence, it seems they cannot rely on arguing that a third party was responsible unless they have proof set to a higher standard than that required of the Prosecution. The Defence does not have the time or resources to gather evidence in many cases, so they are unlikely to be able to meet these requirements.  

The Defence asked to call M as a hostile witness and cross-examine him, assuming that no man is likely to willingly testify to committing a crime, which was rejected. Without the power of the state to compel a third party, M would not have to attend Court and any statements about him became inadmissible.

If a man on trial can only deny guilt and not accuse another, are we not putting Justice at risk?