Twist & Ors v R. [2011] EWCA Crim 1143

[2011] EWCA Crim 1143Case Nos: 201006740 C4 201006739 B1 201006989 B2 201100114 B2 201100774 B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Venue 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
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/05/2011
Before
LORD JUSTICE HUGHES VICE PRESIDENT OF THE COURT OF APPEALCRIMINAL DIVISIONMR JUSTICE TREACYMR JUSTICE EDWARDS-STUART
Between
Twist & OthersAppellantThe QueenRespondentMr P Brunt (instructed by Central Law Ltd) for Appellant A T TwistMiss M Simpson (instructed by Lloyds PR) for Appellant L.Mr W Saunders (instructed by Cartwright King) for Appellant R Tomlinson.Mr W Saunders & Miss Z Van Den Bosch (instructed by Cartwright King) for Appellant L. Kelly.Mr J Butterfield (instructed by Glaisyers for Appellant R Boothman.Mr L Mably (instructed by Crown Prosecution Service) for CrownHearing Hearing dates : Hearing date : 12 th April 2011
Judgment
[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 evidenceof 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. (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.”[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 hearsay rule. He identified:
“…the only rational ground for excluding from the scope of the hearsay rule assertions which are not express but implied by the words and conduct of persons not called as witnesses. Put shortly, the speakers’ words and conduct are motivated quite independently of any possible intention to mislead and are thus exempt from the suspicion attaching to express assertions and are, in that sense, self authenticating.”
[9]It is therefore helpful, as it seems to us, that the Act avoids the use of the expression “assertion” altogether, and with it the difficult concept of the “implied assertion”. Instead, the Act concentrates the mind on the ‘matter stated’, which it is sought to prove. This is defined by reference to the purpose of the maker (ie usually the speaker or sender of the communication). The matter stated must be something which the maker intended someone (generally the recipient, since it is to him that the communication is addressed) to believe or to act upon: s 115(3).[10]The ‘matter stated’ will usually be a fact, but may also be an opinion: s 115(2). For convenience we shall refer hereafter to facts, but the same applies where the matter stated is an opinion.[11]There are therefore two questions which have to be addressed in most cases: i) what is the matter which it is sought to prove ? (it must of course be a relevant matter), and ii) did the maker of the communication have the purpose of causing the recipient to believe or to act upon that matter ?[12]In addressing these questions, and the application of the Act generally, it needs to be remembered that to say that a communication is evidence of a fact (ie tends to prove it) is not the same as saying that that fact is the matter stated in the communication for the purposes of the Act.[13]If a buyer for a large chain store telephones the sales director of a manufacturer, with whom he routinely does business, and orders a supply of breakfast cereal or fashion jeans he is generally not representing as a fact or matter either(a) that the sales director’s firm manufactures the flakes or the jeans or(b) that he the buyer works for the chain store. Crucially for the application of the Act, even if it be suggested that the order should be construed as an “implied assertion” of either fact (a) or fact (b), it will be beyond doubt in most cases that the caller does not have it as one of his purposes to cause the recipient to believe or act upon either of those facts. The recipient knows them very well. Those are simply the facts (or matters) which are common knowledge as between the parties to the call. Neither is, therefore, a matter stated in the call for the purpose of sections 114 and 115. The call is however evidence of both fact (a) and fact (b). It is not, no doubt, conclusive, at least if there is any realistic possibility of mistake, but it is undoubtedly evidence of those facts. Conversely, if the caller tells the recipient, perhaps in order to induce him to speed up the supply, that the buyers have already sold 5 tons of the goods, it is his purpose to induce the recipient to believe that fact. If that were the fact sought to be proved, the call would be hearsay evidence of that matter.[14]If there is a queue of young people outside a building at midnight, obviously waiting for an evening out, that is some evidence tending to prove that the building is being operated as a club, which may be the matter which it is sought to prove, perhaps in licensing proceedings. There is no statement of that matter for the purposes of the Act. If several of the queuers were heard to be telling others about last week’s ‘rave’, the only way that could possibly be regarded as a statement of the fact that this was a club would be by treating it, artificially as it seems to us, as an implied assertion of that fact. But it makes no difference whether it is so treated or not, because none of the speakers would have the purpose of inducing any listener to believe or to act upon the fact that the place is a club, since that is simply a common basis for conversation, and all of them know it. Conversely, if the issue is not whether the place was a club, but rather whether there was a large event the previous week, the statement of the fact/matter that there had been such an event would indeed be caught by the hearsay rule; those who spoke of it were doing so with the purpose of inducing their hearers who had not been there to believe it. The out of court statement would indeed be hearsay evidence of that matter.[15]Some communications may contain no statement at all. If, for example, the communication does no more than ask a question, it is difficult to see how it contains any statement. A text message to someone asking “Will you have any crack tomorrow ?” seems to us to contain no statement at all. But even if it be analysed as containing an “implied assertion” that the recipient is a drug dealer, that fact is still not a “matter stated” for the purposes of sections 114 and 115(3) because the sender does not have any purpose to cause the recipient to believe that fact or to act upon the basis that it is true. They both know it, and it is the common basis of their communication.[16]Similarly, it is important when applying the statute to distinguish between: i) the speaker wishing the hearer to act upon his message; and ii) the speaker wishing the hearer to act upon the basis that a matter stated in the message is as stated (ie true). Only the second will bring into operation the hearsay rules. If the sender asks whether the recipient will have any crack tomorrow, he does indeed want the recipient to act on his message because he hopes to extract an answer to his question. Even more clearly he does so if he goes one step further and asks for crack to be sold to him tomorrow, because then he hopes to receive a supply. But in neither case does he have the purpose of causing the recipient of his message to believe that the recipient is a drug dealer, or to act on the basis that that is the truth.[17]Generally, therefore, it is likely to be helpful to approach the question whether the hearsay rules apply in this way: i) identify what relevant fact (matter) it is sought to prove; ii) ask whether there is a statement of that matter in the communication. If no, then no question of hearsay arises (whatever other matters may be contained in the communication); iii) If yes, ask whether it was one of the purposes (not necessarily the only or dominant purpose) of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true ? If yes, it is hearsay. If no, it is not.[18]The answers to these questions will be case-sensitive. The same communication may sometimes be hearsay and sometimes not, depending on the matter for which it is relied upon and the fact which it is sought to prove.[19]In addressing these questions, we would strongly recommend avoidance of the difficult concept of the “implied assertion”. That was described by the Law Commission, rightly in our view, as “a somewhat unfortunate expression” (paragraph 7.7). As the Commission went on to point out:
“First, it begs the question of whether the words or conduct in question are an assertion of the fact that they are adduced to prove. It is at least arguable that they are not assertive at all, but directly probative – in which case it would follow that they should not be caught by the hearsay rule. 7.8 Second, the word “implied” is here used in an unusual sense. Normally it refers to a statement which is not expressly spoken or written but is intended to be understood from what is said or done. But where there is an assertion of the fact to be proved, it is immaterial whether that assertion is express or (in the ordinary sense) implied. An assertion of a fact is no less of an assertion because it is implicit in an express assertion of a different fact, or because it takes the form of nonverbal conduct such as a gesture. An assertion can therefore be implied (in the ordinary sense) without being what is described in the context of hearsay as an “implied assertion.”
As we have sought to explain, it no longer matters whether a statement is analysed as containing an implicit (or “implied”) assertion if the speaker’s purpose does not include getting anyone else to accept it as true.[20]It is also important to remember that deciding whether one or more communications is or is not hearsay may not be the end of the issue of admissibility. Even if the communications are not relied upon for their hearsay content, as that is defined by the Act, that does not relieve the court of applying the usual tests for admissibility. The fact which it is sought to prove must be a relevant fact; otherwise the evidence is inadmissible on grounds of irrelevance. And secondly, it is necessary that that fact is indeed a legitimate conclusion to be drawn from the evidence. If, for example, the only thing which the communications are capable of proving is that the senders held an opinion that x was a fact, that would not generally be admissible as proof of fact x, though it would be admissible, if the issue were whether they believed x, to show that they did: see Kearley where this point was plainly made. If, on the other hand, it is a proper conclusion to draw from the evidence of a communication, or of a number of similar communications, not only that the sender held an opinion but also that there was an existing relationship between him and the recipient, for example of buyer and supplier, or otherwise that a relevant background fact plainly existed, then the evidence, assuming it is not within the Act’s concept of hearsay, is admissible on that issue. What the evidence is capable of proving will depend on the facts of each case. It will be necessary, in some cases, for judges to focus the jury’s attention carefully on what it is that the evidence is and is not capable of proving.[21]Further, to say that a communication is not hearsay and that it is admissible evidence tending to prove a fact, is not to say that it is unanswerable or conclusive. To take an example, a single message requesting the supply of drugs, or for that matter a gun, might have been misdirected by mistake, or might be based on a mistaken belief that the recipient is likely to be able to supply what is asked for. No doubt, the more similar messages there are, sent independently of one another, the more likely it is that they do prove the fact alleged, but that will depend on what possible alternative explanations there might be for the evidence. Whether a communication which is not hearsay does or does not prove the fact alleged is always a matter of weight for the jury.[22]It ought not to be thought that it makes little difference whether the court is dealing with hearsay or not. True, there is a discretion to admit hearsay evidence if satisfied that the interests of justice require it (section 114(1)(d) and (2)). Sometimes the contents of a communication may be admissible by this route even though hearsay. But: i) admission under section 114(1)(d) is not routine, nor a matter of mere form; it requires careful thought, having due regard to (especially) reliability and the opportunity to test it: see for example R v Y [2008] 1 Cr App R 34 at 411, at paragraphs 56-62, and R v Z [2009] EWCA Crim 20 at paragraphs 20-24; ii) there are different rules applicable to hearsay; see for example section 121 where there is multiple hearsay, the power contained in section 125 to stop a case dependent on hearsay if the evidence is so unconvincing that a conviction would be unsafe and the general discretion under s 126 to refuse to admit a statement on grounds of undue waste of time; iii) if the maker(s) of the communication is or are unknown, that will be very relevant to whether their hearsay evidence ought to be admitted; we have not heard full argument upon this point and do not decide it; however, we draw attention to the fact that no anonymous witness order under ss 86-89 of the Coroners and Justice Act 2009 can be made in a case of fear in relation to evidence which is hearsay, because of the existence of s 116(1)(c) of the 2003 Act which requires the fearful witness whose hearsay is adduced to be identified: R v Mayers [2008] EWCA Crim 2989; [2009] 1 Cr App R 30; whilst there may be some forms of anonymous hearsay which are nevertheless admissible, such as business records or the statement of an unidentified agent of the defendant, the hearsay testimony of an anonymous witness may well fail the interests of justice test of admissibility; an example is Fox [2010] EWCA Crim 1280, where the contents of an anonymous 999 call were inadmissible as evidence that the facts reported were true; that case is a good example of a communication which certainly was relied upon for the accuracy of the matter stated in it and without, so it would appear, the limited circumstances of spontaneity which would permit admission under the principle of Andrews [1987] AC 281, one of the rules preserved in section 118.[23]Our understanding of the Act, set out above, was foreshadowed by Rose LJ in Singh [2006] EWCA Crim 660; 2 Cr App R 12 at 201. The court was there not considering a communication at all, but rather the note for himself that a mobile telephone user makes when he enters in the memory of his telephone the number of a contact. This was in similar case to a private diary entry which is written for oneself and no-one else; the maker of the entry has no purpose to cause anyone else to believe or act upon the truth of the entry – it is entirely for his own use and for that reason is not hearsay. It was therefore admissible evidence to tend to prove that the telephone number in question was used by the defendant, the person to whom the entry was attributed. But the court expressly considered the impact of the 2003 Act on Kearley. At paragraph 14 it said:
“What was said by the callers in Kearley would now be admissible as direct evidence of the fact that there was a ready market for the supply of drugs from the premises, from which could be inferred an intention by the occupier to supply drugs. The view of the majority in Kearley, in relation to hearsay, has been set aside by the Act.”
[24]We were referred to R v Leonard [2009] EWCA Crim 1251. That case concerned incoming text messages received on the defendant’s mobile telephone which commented upon the quality or quantity of drugs previously supplied. They were relied on by the Crown in a case in which the defendant was indicted for possession of drugs with intent to supply. The conclusion reached in the judgment (delivered by Aikens LJ) was that the messages were hearsay. But that case proceeded upon the basis, apparently accepted by the Crown, that(a) the quality/quantity of past supplies was a matter stated in the communications, and more importantly(b) that the Crown was seeking to prove that matter in order through that route to prove that the defendant was a dealer in drugs: see paragraph 36. Of course, if those two things were correct, it does indeed follow that the evidence is hearsay, because clearly the senders of the messages intended the defendant recipient to believe the comments about the goods. It would clearly have been different if the Crown had relied on the messages not to prove the quality of past supplies (and through this route that the defendant was a dealer) but merely to show that the relationship between the parties was one of drug customer and drug supplier, without any attempt to prove the quality of the past supplies. Some academic commentators have suggested that that was in reality what the Crown sought to do, but that was not the basis of the decision. We therefore do not think that Leonard compelled the reluctant assumption made in Bains [2010] EWCA Crim 873 that the text messages in that latter case were hearsay, but Bains in any event did not decide that point, referring simply to the concession made in Leonard. That it is crucial, as we have said above, to look carefully at what fact it is sought to prove, emerges clearly from considering Leonard alongside another decision of this court, not long afterwards, in which the judgment was also given by Aikens LJ: R v Chrysostomou [2010] EWCA Crim 1403. There the relevant texts appeared to be orders for drugs. They were relied upon to prove bad character rather than directly to prove the offence charged, which was not a drugs offence, but that feature does not affect the question of whether the evidence was hearsay or not: it would of course be very relevant to the discretion to exclude evidence tendered as to bad character (see section 101(3) Criminal Justice Act 2003). The court held that the evidence was not hearsay. It relied specifically at paragraph 28 on what it was the Crown was setting out to prove: not the contents of the messages but the state of affairs which they revealed. That is consistent with the analysis of the Act which we have endeavoured to set out. In the terms of our analysis, the matter sought to be proved was the relationship between the sender of the messages and the defendant. The sender did not have the purpose of getting the defendant to believe or act upon that matter; it was simply the common knowledge revealed by the messages.[25]R v MK [2007] EWCA Crim 3150 is clear support for our approach to the application of the statute. The Crown sought to prove that the defendant was guilty of offences of drug trafficking. Part of its evidence was of a telephone call made to him, in which a person who was known to be wishing to make a subsale of drugs enquired the defendant’s price for amphetamine. This court allowed a Crown appeal against a ruling by the recorder that that conversation was inadmissible hearsay. It did so on the grounds that there was no representation in the call of the fact that the defendant was a supplier of drugs and that in any event the caller’s purpose did not include getting the defendant to believe or act upon the truth of that fact. Although in Leonard doubt was expressed about the second of those propositions, it is perfectly clear that it was part of the decision and it was, in our view, plainly correct.[26]R v Elliott [2010] EWCA Crim 2378 is a further illustration of the correct approach. It was relevant for the Crown to prove that the defendant was an adherent to a gang. It sought to rely (inter alia) on some letters sent to him in prison which contained references to membership of the gang and symbols signifying the same. This court held that this evidence was not hearsay, because the authors of the letters did not have the purpose of causing the defendant to believe any representation that there might be, nor to act upon its truth. Common membership of the gang was simply the shared basis of the communications.

Twist

[27]The defendant was arrested in possession of a large wrap of heroin weighing 9.18g and worth about £450, and also of a single small wrap of the same drug weighing 0.18g and worth about £10. He also had £232 in cash. Just before his arrest he had driven up in his car and had met and picked up another man, plainly and admittedly by arrangement. He had driven that man a short distance along the road and then set him down. The other man was a known heroin user. At his trial he admitted simple possession of the drugs found on him but he denied any intent to supply. He contended that his meeting with the other man was nothing to do with drugs but was because that man owed him money. Apart from the evidence thus far summarised, tending to demonstrate intent to supply by possession of bulk as well as a single deal and by a meeting wholly consistent with an act of supply, the Crown wished to adduce evidence of 24 text messages received on the two mobile phones he was using at the time and which were, in large measure, requests for the supply of drugs. They were received over a period of about five days up to the afternoon of the defendant’s arrest.[28]The judge ruled that the messages were not hearsay because any assertion was merely implied and the purpose for which they were relied upon was not to prove any fact or matter stated in them. He indicated that if he were wrong about that, he would admit the messages as hearsay in any event, on the grounds that it was in the interests of justice to do so. He referred to R v Chrysostomou.[29]In our view these messages were not hearsay. The matter sought to be proved was that the defendant was a supplier of drugs. That was a relevant matter, indeed the prime issue in the case was whether he was or was not. The messages did not amount to or contain any statement that he was. Even if they could be said to amount to an implied assertion that he was, the purpose of the senders did not include causing him or anyone else to believe that he was. Further the messages justified the conclusion that there was an existing relationship of buyer and seller between the senders and the defendant. Accordingly they were rightly admitted. It is unnecessary to consider the alternative basis of admissibility if they were hearsay.[30]We give leave but the appeal against conviction must be dismissed.

Boothman

[31]Boothman was one of three defendants charged with two counts of conspiracy to supply drugs, respectively cocaine and cannabis. He pleaded guilty to the cannabis count but denied the cocaine count. As well as adducing evidence of observation and of findings of drugs, cash and paraphernalia, the Crown relied on the retained contents of well over one hundred text messages, passing in both directions. It was apparent that many of the outgoing ones were advertisements sent by the defendant to potential drug purchasers, telling them that he had good stock available. There was, rightly, no objection taken to the admissibility of these outgoing messages, which were his own advertisements. The incoming messages were fairly clearly orders for drugs or comments on past supplies made to the senders. Some were in terms about cannabis, and so not in issue. But on his behalf, Mr Butterfield contends that incoming messages were hearsay and thus that those which, in particular, spoke of cocaine (for example by referring to the number of ‘lines’ derived from a recent supply) ought not to have been admitted. He contends that these messages could only go to prove cocaine dealing by relying on the express representations contained in them, such as the reference to ‘lines’, and that this is impermissible.[32]In our view these messages were not hearsay, for reasons largely the same as in the case of Twist. The fact sought to be proved was that the defendant was dealing in cocaine, as well as in cannabis. That was a highly relevant fact. There were representations (statements) to that effect in some of the messages, and others carried that meaning. But in none of the messages did the sender have it as one of his purposes to make the defendant believe that he was a supplier of cocaine, or to act on the basis that that representation was true. They no doubt wanted him to act on their orders, but that, for the reasons explained, is not the same thing as wanting him to accept the truth of their references to his cocaine dealing. The distinction drawn by Mr Butterfield between express representations and those which are not express was relevant under Kearley but is no longer so. There was scope for debate about the meaning of some of the messages, but evidence was called as to the import of the slang expressions used. Whilst the evidence was not perhaps conclusive it more than justified the conclusion that the defendant was dealing in cocaine.[33]We give leave, but the appeal against conviction must be dismissed. Tomlinson and Kelly[34]These two defendants were charged with robbing two girls with whom they had spent a weekend at the home of one of the girls. The other girl had been discovered to be in possession of £500 given to her by her mother as a 21st birthday present. According to the girls, the defendants had forced their way into the room where the money was in a locked cupboard and had extracted it from them at gunpoint. The girls both said that they had seen the gun on earlier occasions. Both said they had then been given a spent cartridge as a memento, and one of them was able to produce it. The existence of the gun was in dispute, as indeed was nearly everything else, including the existence of the money.[35]On the mobile telephone of Tomlinson was a message which read:
“Need dat gun today so can sell it and give you lot da tenner back. Does faws still want it ?”
There was some evidence that the sender was known to the defendants because on Kelly's phone the number of the sender was in the list of recorded contacts and attributed to someone whom Kelly called 'Popy'. The message was sent and received on the morning of the alleged robbery and before it took place.[36]The defendants sought to exclude the evidence of the message on the basis that it was hearsay. The judge held that there were strong grounds for saying that it was not, but in case it was, he would admit it in any event under section 114(1)(d).[37]In our view, the message was not hearsay. The matter which it was sought to prove was that the defendants were in possession of a gun, as the girls said they were. That was a highly relevant issue. There was, maybe, a statement in the message that they were in possession of it; certainly if the terms of the message were expanded without altering its sense to “Need dat gun which you have….” that would be clear. But it was not one of the purposes of the sender to cause Tomlinson, or anyone else, to believe that Tomlinson had a gun in his possession. That was simply the common understanding of sender and recipient underlying the communication. Therefore the message was not within the Act’s concept of hearsay. Further, the conclusion which could legitimately be drawn from it was not confined to the fact that the sender believed that the defendants had the gun, but extended to the conclusion that they did indeed have it. Accordingly the message was correctly admitted. There was an issue as to whether it might have been misdirected, but that was a decision of fact for the jury.[38]We give leave, but the appeals against conviction must accordingly be dismissed. Lowe[39]The defendant who was aged 15 was charged with two rapes of his girlfriend of the same age, allegedly committed on the same occasion, in a local park. The issue was consent. It was common ground that they had had consensual sexual relations in the past, including in the park. The Crown case, however, was that on the day in question they had met after school, were in the course of a row, and that the defendant had dragged the complainant into the park and forced himself upon her twice. His case was that the sexual intercourse was entirely consensual, although afterwards they had fallen into argument, in part about a secret from her past which she had confided to him.[40]In addition to evidence of reporting, distress and complaint, part of the evidence came from the Deputy Head of the school. She saw the complainant two mornings later in her capacity as child protection officer and, as well as being given an account of events by her, was shown her mobile phone. On it there were 47 messages sent by the defendant since the incident. The teacher copied them out and they were before the jury as secondary evidence, having by the time of the trial been deleted from the telephone itself. The Crown said that, although the content was not always consistent, some of them amounted to confessions to, and apologies for, the rape, and to admissions that the row had been before the sex. The defendant agreed that he had sent them but he contended that they were simply apologies for being unsympathetic in the argument which he said had only arisen after consensual sexual intercourse.[41]The Crown served a hearsay notice in respect of these messages. When objection was taken to them being admitted, the judge ruled that they were not hearsay(i) because they emanated from the defendant himself and(ii) because they were not produced by the teacher as evidence of the truth of their contents. Alternatively, she ruled that if they were hearsay, she would admit them under section 114(1)(d) Criminal Justice Act 2003.[42]These messages were not hearsay. The fact sought to be proved was that there had been one or more rapes. That was a highly relevant fact. The messages contained statements, or representations of that fact. By her second proposition we think that the Judge meant that the teacher who recorded the messages was speaking to the accuracy of her note, not to the truth of the contents of the messages themselves, but the messages were nevertheless relied upon by the Crown for the truth of what was stated in them. However, the defendant, when sending them, did not have it as one of his purposes to cause the complainant to believe that she had been raped. On the contrary, if that is what the messages meant, they both knew that. Quite apart from that, these messages amounted to statements by the defendant himself, contrary to interest, and were admissible even if hearsay on those grounds under section 114(1)(b) and section 118 which preserve the pre-existing rules as to confessions and like statements. Confessions have always been admissible as exceptions to the rule against hearsay on the grounds that they are not affected by the same risks of untruthfulness or unreliability as third party assertions of fact.[43]Miss Simpson contended in the alternative that the messages ought to have been excluded by applying section 76 of the Police and Criminal Evidence Act 1984. However, there was no basis for so doing. It was not the defendant’s case that he had said what he did in consequence of something said or done by another that would render his confession unreliable.[44]Alternatively Miss Simpson contended that the messages ought to have been excluded pursuant to section 78 of the 1984 Act on the grounds that it was unfair to admit them. Some of the messages suggested that there may have been some reciprocal texts sent by the complainant to the defendant, but her telephone had had its memory cleared or overwritten by the time the matter was reported, rather late, to the police. Miss Simpson’s submission is that without seeing the other end of the conversation it was unfair to rely on what the defendant had said. We accept that there may have been some reciprocal messages, although the defendant’s evidence at trial was that the complainant had, at least at the outset, refused to answer his repeated messages but rather had ‘blanked’ him, which evidence was consistent with some of the messages. But the defendant was perfectly free, if it was his case that what he had said was open to misunderstanding because it was a response to something which the complainant had said to him, to give evidence to that effect. True, if he had said that, he would have been able to point to the disadvantage of not having any extant record of her calls to him. But he did not say this. The issue which he raised was that he had indeed been apologising, but not for rape; rather, he said, for being unsympathetic when the girl had confided in him and they had got into a row after (as he said) the sexual intercourse was over. That issue, what he meant when he sent the messages he did, was one which the jury was well able to determine and the defendant was able to explain why he said that he sent them even in the absence of her replies. The judge’s conclusion, that there was no unfairness such as to call for exclusion of this evidence, was one that we consider was open to her and was not wrong in principle.[45]For these reasons Lowe’s appeal against conviction must be dismissed. Twist: sentence[46]Twist was sentenced to five years imprisonment for the drugs offence. There is, and could be, no complaint about that. Whilst on bail for these offences, he was arrested driving a car containing a shortened shotgun and a deactivated pump action shotgun, together with cartridges. He had attempted to evade the police, no doubt because of what he was carrying, and had driven dangerously and at high speed in a residential area as a result. He was sentenced on the basis which he asserted, namely that he was looking after the guns for a drug dealer. He had also been found in possession, on the occasion of his first arrest, of a stolen mountain bicycle. He was 29 years of age, with previous convictions for dishonesty, affray and the supply of drugs. The judge passed a concurrent sentence in respect of the cycle, but for the dangerous driving and firearm offences he passed sentences which, although concurrent to one another, were made consecutive to the drugs and cycle sentences. The firearms (and driving) sentence totalled three years and nine months, passed after late pleas of guilty. Thus the total was eight years and nine months. His application for leave to appeal his sentence is confined to the argument based on totality. It is said that the overall sentence was too long.[47]In our view the later offences amply merited consecutive sentences. They were committed on bail. They were of a quite different kind. The minding of firearms for a drug dealer is very serious. If the starting point was five years, that was not too long, and it may in fact have been a little lower, given the lateness of the plea. The offences between them demonstrated wide-ranging criminal behaviour. The overall sentence was not manifestly excessive. Nor do we think that a driving disqualification of four years was, in the circumstances, excessive. We refuse leave to appeal against sentence. Tomlinson and Kelly: sentence[48]The judge passed sentences of nine years detention in a young offenders’ institution. The defendants were aged one side or another of 19. Both had relevant previous convictions. Whilst their gravity did not approach armed robbery, there were clear indications of aggressive and anti-social behaviour. Kelly’s convictions included assault, theft from the person and the possession of a knife and he was conditionally discharged when he committed the present offence. Tomlinson had convictions for theft, assault, disorder and (twice) for threatening a witness. He had served a sentence of detention and training. The judge rightly reminded himself that the Sentencing Guidelines Council’s robbery guidelines do not apply to violent robberies within the home. Mr Saunders submits that nevertheless the upper levels of robbery dealt with by the guidelines ought to be regarded as of some assistance, and that this offence fell in any event into the upper reaches of the 2 to 7 year range. We agree that this was not the worst kind of robbery committed in the home; there was absent the element of violent invasion since these defendants were already present as invitees. But the worst kind of such offences will call for sentences significantly into double figures. This offence was enormously aggravated by the use of a gun, and one for which the girls had previously been shown spent ammunition, suggesting plainly that it might easily be loaded. It was put to the head of one of the girls. Its use must have been extremely frightening. As the judge rightly said, if the defendants wished to portray themselves as young gangsters and gunmen, as they plainly did, and to behave as such, they fell also to be sentenced as such. This sentence was severe, but we do not think that it was manifestly excessive.[49]Accordingly we refuse leave to appeal against sentence. Lowe: sentence[50]Lowe was 17 at the time of sentence. The judge passed a sentence of four and a half years detention in a young offenders’ institution. There is no complaint about the length of the sentence, but the defendant’s age was overlooked. The available sentence was not detention in a young offender’s institution but detention for a grave crime pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. We quash the sentence passed and replace it with one of four and a half years’ detention under section 91. Any time in custody or on curfew will count towards that sentence as it counted before towards the sentence imposed below. We give leave to appeal and to that extent the appeal against sentence is allowed.

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