Hearsay, Confessions and Mobile Telephones
| Author | Michael Hirst |
| Date | 01 December 2011 |
| DOI | 10.1350/jcla.2011.75.6.738 |
| Published date | 01 December 2011 |
| Subject Matter | Article |
Hearsay, Confessions and Mobile
Telephones
Michael Hirst*
Abstract This article examines the concepts of hearsay and relevance as
they apply to evidence derived from messages and call logs, etc. found on
mobile telephones. In some cases such evidence may also raise issues as to
the relationship between the statutory rules governing hearsay and those
specifically governing confessions by defendants, and in particular their
possible use against other defendants who may be incriminated by
them.
The Court of Appeal has examined these issues on a number of occa-
sions, notably in the case of R vTwist (2011), but I will argue here that a
number of mistakes have been made and some difficulties have been
misunderstood or overlooked.
Keywords Evidence; Hearsay; Relevance; Confessions; Rv Twist
Mobile telephones and related devices such as personal digital assistants
(PDAs) are now seen as essential tools of modern society, and some of
the heaviest users are criminals, notably drug dealers. But criminals use
them at their peril, because such devices (and their associated SIM and
memory cards) store data, including call logs, camera images and text or
voice messages, which may be used against them in criminal prosecu-
tions. Such evidence has featured in numerous reported cases over the
last few years.1Many an alleged drug dealer, for example, has been
embarrassed by messages found on his phone (or phones). If he is a
mere user, as he claims, why then is the inbox full of messages from
callers asking to buy drugs from him, or (worse still) thanking him for
supplying previous orders? His embarrassment will be heightened if
these messages come from numbers to which names have been added in
his list of contacts. ‘If you do not know this person’, he may be asked,
‘why then is his name and contact number listed there?’
Such embarrassments are not of course confined to alleged drug
dealers, or to material found on a defendant’s own mobile phone. A
defendant accused of date rape or assault may find that his defence or
denial is undermined or contradicted by a note of explanation or apol-
ogy that he texted to the complainant the following day, or by messages
exchanged with a co-defendant in which guilt appears to be assumed, or
even by an accusation contained within a text message sent to him by
the complainant herself.
* Professor of Criminal Justice, Leicester de Montfort Law School; e-mail:
m.hirst3@ntlworld.com.
1 This is in addition to cases in which forensic data such as cellsite evidence has
enabled police or prosecutors to prove the general location of a mobile phone (and
by inference its owner) at a given time and date. Cellsite evidence is not directly
relevant to this article, but if interested see R v Seaton [2010] EWCA Crim 1980,
[2011] 1 All ER 932 and R v Gordon [2011] EWCA Crim 1385.
482 The Journal of Criminal Law (2011) 75 JCL 482–502
doi:10.1350/jcla.2011.75.6.738
Faced with apparently incriminating evidence of this kind, the de-
fence may try to have text or voice messages and some other types of
recorded data excluded as hearsay. Hearsay is not necessarily inad-
missible, but if a message is classed as hearsay it may well be excluded,
particularly if more than one layer of hearsay is involved or if the
identity of the author or sender cannot be established. Difficulties may
also arise if the prosecution seeks to use a message containing admis-
sions by one defendant as hearsay evidence against another. Some
recent authorities suggest that such use is now possible, but others insist
that it is not.
In other cases, the defence may seek to have messages or other phone
data excluded on grounds of irrelevance. This may in particular remain
a possible argument in cases involving messages from callers seeking to
buy drugs or other contraband, because, as the House of Lords notori-
ously decided in R vKearley,2one cannot prove a defendant is a dealer
merely by proving that other people evidently believe him to be one, or
that they provide him with a ready market for his product. If such
evidence is to be considered relevant, it must be capable of proving
something more. Whether it does so may depend both on the contents
of the messages and on the circumstances in which the messages were
found.
Few if any of the interpretational difficulties associated with such
evidence were eased when Part 11 of the Criminal Justice Act 2003
came into force, even though this was intended to address the Kearley
problem and to simplify and rationalise the operation of the hearsay
rule. If anything, the problems associated with classification appear to
have increased, as can be seen from the flood of cases—many resulting
in problematic or erroneous decisions—which the new law has
generated.
Against this background, the Court of Appeal in R vTwist,3recently
considered four conjoined appeals, each of which involved text mess-
ages sent from and/or received by an appellant’s mobile phone, and each
of which raised issues as to the application of the revised hearsay rule to
such evidence. But, as Hughes LJ noted in giving the court’s judgment in
Twist, messages found on mobile phones do not raise any unique or
peculiar evidential problems. The principles that apply to them apply
equally to all similar forms of communication, and even to hand-written
letters or spoken words:
A text message is, in the end, significantly different neither from an email
nor from a letter, nor from an overheard remark made to a person with
whom the speaker is in conversation whether together in the same place or
via telephone or other remote device . . .4
2 [1992] 2 AC 228.
3 [2011] EWCA Crim 1143, [2011] 2 Cr App R 17.
4 Ibid. at [1]. See, e.g. R vElliott [2010] EWCA Crim 2378, where the same principles
were applied to the contents of handwritten letters found in D’s possession. If
preserved, the substance of a mobile phone message may of course be more easily
proved than that of an overheard remark or conversation, but a text or voice
message can be lost or deleted, as indeed occurred in one of the Twist appeals, and it
must then be proved by testimony in much the same way as an overheard remark.
Hearsay, Confessions and Mobile Telephones
483
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