Twist & Others v The Queen

JurisdictionEngland & Wales
JudgeLord Justice Hughes
Judgment Date12 May 2011
Neutral Citation[2011] EWCA Crim 1143
CourtCourt of Appeal (Criminal Division)
Docket NumberCase Nos: 201006740 C4 201006739 B1 201006989 B2 201100114 B2 201100774 B3
Date12 May 2011

[2011] EWCA Crim 1143

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM WOLVERHAMPTON CROWN COURT HARROW CROWN COURT LINCOLN CROWN COURT BIRMINGHAM CROWN COURT

HIS HONOUR JUDGE WALSH HER HONOUR JUDGE MORRIS HIS HONOUR JUDGE MORRIS HIS HONOUR JUDGE TOMLINSON

T20100532 & T20107370, T20100410, T20107057, T20097879

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Hughes VICE PRESIDENT OF THE COURT OF APPEALCRIMINAL DIVISION

Mr Justice Treacy

and

Mr Justice Edwards-Stuart

Case Nos: 201006740 C4 201006739 B1 201006989 B2 201100114 B2 201100774 B3

Between:
Twist & Others
Appellant
and
The Queen
Respondent

Mr P Brunt (instructed by Central Law Ltd) for the Appellant A T Twist

Miss M Simpson (instructed by Lloyds PR) for the Appellant L.

Mr W Saunders (instructed by Cartwright King) for the Appellant R Tomlinson.

Mr W Saunders & Miss Z Van Den Bosch (instructed by Cartwright King) for the Appellant L. Kelly.

Mr J Butterfield (instructed by Glaisyers for the Appellant R Boothman.

Mr L Mably (instructed by Crown Prosecution Service) for the Crown

Hearing dates: Hearing date: 12 th April 2011

Lord Justice Hughes
1

These four cases, which we have heard together, raise questions connected with the way in which the comparatively new rules upon hearsay contained in the Criminal Justice Act 2003 apply to communications made to, or by, the defendant. These cases all happen to concern text messages sent by mobile telephone. No doubt messages of that kind are frequently encountered at the moment, because they are currently a very popular form of communication. The principles, however, apply equally to all forms of communication. The overhearing, deliberate or accidental, of one or both ends of a communication is by no means new. A text message is, in the end, significantly different neither from an E-mail 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. Sometimes the evidence is of one end of the conversation only, sometimes it is of both, and sometimes the evidence of one end includes reaction to the other speaker from which it may be possible to infer what the other has said.

2

Of the four cases which we have to decide, three are concerned with messages received by the defendant. In Twist and Boothman the indictment required proof of an intent to supply drugs. The messages received by the defendant were – or were contended to be — requests that he supply drugs. In Tomlinson & Kelly the indictment charged robbery and a key issue was whether the defendants had had a gun in their possession at a time when the alleged victim said that they had. The message received by one of the defendants was a request for a gun to be delivered to the sender. The fourth case, Lowe, differs because the messages relied on were outgoing messages sent by the defendant himself. He faced a charge of rape of his young girlfriend. The issue was consent, and in particular whether he had forced himself upon her in the course of a row, or had had consensual sexual intercourse with her, followed by an unconnected row. The messages were sent by him to the complainant in the ensuing two days and were contended by the Crown to amount either to confessions of rape or at least to significant admissions against interest helping to prove that there had been rape.

3

Although it employs the word sparingly, the Criminal Justice Act 2003 contains a complete code for hearsay in those criminal proceedings to which the strict rules of evidence apply (s 134). As is well known, the statute followed in time a comprehensive report of the Law Commission on hearsay (LC 245, 1997). It largely adopts the draft bill provided by the Commission, although there are some differences (not material to the present issue) between the bill and the statute as enacted. What is undoubted is that the Act abolishes the common law of hearsay except where it is expressly preserved; this court so held in Singh [2006] EWCA Crim 660; 2 Cr App R 12 at 201.

4

It is not necessary to set out most of the provisions of the Act. The key ones for this purpose are the opening words of section 114(1) and the whole of section 115. Whatever may be the position elsewhere in the Act, neither of these departs by so much as a comma from the Law Commission's draft bill.

5

Section 114(1) delineates the scope of the provisions which follow. Under the side-heading "Admissibility of hearsay evidence" it reads:

"(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if—…….."

and it then goes on to set out the well known four alternative bases of admission: statutory authorisation, preserved rule listed in section 118, the consent of all parties and the court's decision that it is in the interests of justice to admit the evidence. Thus the default position is that hearsay is inadmissible, unless it qualifies for admission under one or more of these four bases.

6

These important opening words of section 114 "admissible as evidence of any matter stated" demonstrate that the Act involves asking what it is that a party is seeking to prove. This is unsurprising. Most (but not all) communications will no doubt contain one or more matters stated, but it does not always follow that any is the matter which the party seeking to adduce the communication is setting out to try to prove, i.e. that the communication is proffered as evidence of that matter. He may sometimes be trying to prove simply that two people were in communication with each other, and not be concerned with the content at all. On other occasions he may be trying to prove the relationship between the parties to the communication but not be in the least concerned with the veracity of the content of it. And there may, of course, be occasions where what he seeks to prove is that a matter stated in the communications is indeed fact. The opening words of section 114 show that it is the last of these situations which engages the rules against hearsay.

7

Section 115 needs to be set out in full. It provides wholly new definitions of 'statement' and of 'matter stated.' It reads:

"(1) In this Chapter references to a statement or to a matter stated are to be read as follows.

(2) A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form.

(3) A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been—

(a) to cause another person to believe the matter, or

(b) to cause another person to act or a machine to operate on the basis that the matter is as stated."

Section 115(3) thus imposes a crucial limitation on the otherwise general expression "matter stated". It is not enough that the matter is stated. It is governed by the hearsay rules only if one of the purposes of the maker was as set out.

8

The Act does not use the expression "assertion". Instead it speaks of a "statement" and the "matter stated" in it. That seems likely to have been because its framers wished to avoid the complex philosophical arguments which beset the common law, as explained in DPP v Kearley [1992] 2 AC 228, as to when an utterance contains an implied assertion. That was a case of telephone calls to the home of the defendant, all seeking the supply of drugs, on which the Crown sought to rely as evidence that he was in the habit of supplying them. The House of Lords held, by a majority, that the calls amounted to "implied assertions" that the defendant was a drug dealer and that they were for that reason hearsay. It was accepted by counsel in R v Singh [2006] EWCA Crim 660; [2006] 2 CR App R 12 at 201, and held by the court at paragraph 14, that the evident intention of the Act was to reverse Kearley. That is also apparent from the Law Commission report, see in particular paragraphs 7.20–22, 7.26–27 and 7.41. There is no trace of any change of policy in the statute and the policy is unsurprising. The principal underlying reason why hearsay evidence is only admissible in limited circumstances lies in the danger of concoction and the difficulty of testing or contradicting it when the speaker is not in court to be examined upon it. But as the Law Commission put it at paragraph 7.20:

"Where there is a substantial risk that an out-of-court assertion may have been deliberately fabricated, therefore, we think it right that the assertion should fall within the hearsay rule – whether it is express or implied. It follows that the rule should extend to any conduct which is intended to give the impression that a particular fact is true, and is adduced as evidence of that fact. But where that risk is not present – in other words, where the person from whose conduct a fact is to be inferred can safely be assumed to have believed that fact to be true – we do not think a court should be precluded from inferring that fact merely because that person may have been mistaken in believing it. And if that person did not intend anyone to infer it, it follows that that person cannot have been seeking to mislead."

In Kearley itself, at 248–249 Lord Bridge was one of those who felt that it was too late to modify judicially what he held to be the common law rule applying hearsay rules to implied assertions. He nevertheless recognised the same argument. He referred to the US federal rules of evidence which had abolished that rule and substituted one confining the concept of hearsay to express assertions and conduct intended to amount to assertion, which outcome was interpreted to mean that assertions had to be intended to persuade in order to be caught by the...

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