Contempt of Court - Juries Attorney-General v Fraill and Seward; Knox [2011] EWCH 1629 (Admin) Communications by juror with defendant.

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1 Andrew Walklate Chambers of Marion Smullen & Kerim Fuad QC BROKEN BRITAIN: BAD BEHAVIOUR IN THE CRIMINAL JUSTICE SYSTEM Conduct of judge R. v. Tedjame-Mortty, unreported, April 5, 2011, C.A. Judge haranguing defendant immediately before he gave evidence led to the conviction being unsafe. Conduct of Jury R. v. McDonnell [2011] 1 Cr.App.R. 347(28), C.A. If a jury have disobeyed the direction not to obtain material from any external source then the position should be investigated to consider whether there is reason to think that the jury might be influenced to reach a decision otherwise than on the evidence in the case. Contempt of Court - Juries Attorney-General v Fraill and Seward; Knox [2011] EWCH 1629 (Admin) Communications by juror with defendant. Disclosure & pre-trial rulings - police informant R v Barkshire [2011] EWCA 1885 (Crim) 1

2 Disclosure of active participating informant. Pre-trial ruling on defence of necessity / prevention of crime. Broken Britain: Bad Behaviour in the Criminal Justice System Defence statement R. v. G.R., unreported, July 28, 2010, C.A. No contempt of court not to file defence statement. But several duties are required of an advocate. Admissions by agents (for example on case management form) R. (Firth) v. Epping Magistratesʼ Court, unreported, February 3, 2011, D.C. Such material can be used at trial. Youth remand R (A) v Lewisham Youth Court [2011] EWHC 1193 (Admin) Method of remand in custody must be determined by the Youth Court. Retrial following acquittal R v Dobson [2011] EWCA (Crim) 1256 Use of s78 CJA 2003 and related sections. Trial continuing without jury R v Guthrie [2011] EWCA (Crim) 1338 Recorder justified in continuing without jury. Unproven allegations as Bad Character R v Braithwaite [2010] 2 Cr.App.R. 128(18) Stabbing in street following quarrel between group of youths and (on the crown s case) a passenger in a mini-cab. The defendant claimed that he was walking down the street and was the subject of aggression and defended himself, taking the knife off the deceased and accidentally stabbing him. The defendant was convicted, he appealed on the grounds that the judge had declined to admit bad character evidence; 2

3 The case relied significantly on the evidence of the group of which the deceased was a part. Of the nine called, four had some previous history of violence or disorder. This material was the subject of an application under section 100 of the Criminal Justice Act The judge admitted any conduct relating to convictions, cautions and penalty notices. However he declined to admit material contained in police crime reports indicating some third party had made an allegation against the witness or that the witness had been investigated in respect of some offence. The appeal related to the judges refusal to admit that second category of material. The Court of Appeal noted four things (at paragraph 12 of the judgment: i) The test of 'substantial probative value' is not the same as the test for gateway (d) of s 101(1) in relation to the common case of bad character evidence affecting the defendant which the Crown seeks to adduce. There the test is whether the evidence is "relevant". It is however the same as appears in gateway (e) in relation to an application made by one defendant against another. ii) If the conditions of section 100(1) are met, there is no residual discretion in the judge to refuse to admit the evidence. Contrast the common gateways (d) and (g) where such a residual discretion is found in section 101(3). iii) Except where all parties agree, evidence of bad character cannot be given without leave. That is expressly provided by s 100(4). It was common ground before us, plainly correctly, that this means that bad character evidence cannot be adduced by any means, including cross examination of the witness, without leave. That is also apparent from the amendment made by the Criminal Justice Act 2003 (Schedule 36, Part 5, paragraph 79) to s 6 of the Criminal Procedure Act 1865 so as to remove the provision formerly there contained that a witness "may be questioned as to whether he has been convicted." and to substitute a reference to the consequences which ensue if he is lawfully questioned in that way. iv) What section 100(1) requires, except where there is agreement between the parties, is not discretion but judgment on the part of the judge. In a case such as the present, where "important explanatory evidence" is not in point, he must assess: a) the issue to which the evidence goes (s 100(1)(b)(i)), b) whether that issue is of substantial importance in the context of the case as a whole (s 100(1)(b)(ii)) and 3

4 c) whether the evidence has substantial probative value in relation to that issue (s 100(1)(b)). This assessment is, by definition, highly fact-sensitive in each case. It is an assessment of whether the evidence in question substantially goes to show (prove) the point which the applicant wishes to prove on the issue in question. The issue will often, but not always, be either the propensity of the person against whom the application is made to behave in a particular way, or his credibility. The probative value of the evidence advanced falls to be assessed in the context of the case as a whole. That means that it may in some cases be appropriate to consider whether or not it adds significantly to other more probative evidence directed to the same issue. The Judge at first instance found that the evidence was potentially relevant to the witnesses propensity to act aggressively in the street or to their credibility. The Court of Appeal agreed. It was also noted that the issues were of substantial importance to the case. The only question was whether the material had substantial probative value. The Court examined the case of Bovell and Dowds ([2005] EWCA Crim 1091) where a defendant had learnt after conviction for wounding with intent (where his defence was self-defence) that his victim had been the subject of an investigation for the same offence a few years prior. The alleged victim (of the victim) had withdrawn the allegation. The Court in Bovell said: we entertain considerable doubt as to whether the mere making of an allegation is capable of being evidence within Section 100(1). As the allegation was, in the circumstances which we have identified, withdrawn, our doubt on this aspect is increased." In Braithwaite the Court discussed the position as follows: This court there sounded an important note of caution, but it did not have to examine all the different types of evidence which a party might attempt to adduce. It would appear that it had in mind the case where all that the applicant seeks to adduce is the fact that someone else has made a complaint, since that was the position in the appeal before it. We emphasise that whenever a bad character application is made, the court must look at the nature of the evidence. The evidence of a live witness to the effect that a complainant in an assault case has on several previous occasions mounted an unprovoked attack on him, in circumstances very similar to those before the jury, would be a mere allegation if no conviction had ensued, perhaps because there 4

5 was yet to be a trial. But we leave open the possibility that it might in some circumstances (assuming truth) be assessed as having substantial probative value. That, however, is not this case. A defendant who asks to adduce a CRIS report to the police containing a complaint made in the past to the police by someone else who was not prepared to support it, is advancing a very different level of probative value. First, it is, at best, hearsay. Its admission would fall to be judged by reference to the conditions for the admission of hearsay and we venture to suggest that given the difficulties of the jury in assessing such evidence it would be rare for it to be judged to be of substantial probative value. Secondly, if the complainant has failed to support the allegation that robs it of a great deal of probative value. If, in addition, there has been a decision by the police or CPS not to pursue the allegation or even, as in one instance in the present case, the formal acceptance of a verdict of 'Not Guilty', the probative value is even further reduced. In the present case, in the example of U given above, the CRIS reports did not even contain any accusation by anyone identifying him as responsible for the bad character conduct alleged. The 'evidence' in this case was in truth no evidence at all that the witnesses had committed the offences in question. It might be different if hard evidence of the allegation were to become available and if that is what the applicant were to seek to adduce. Accordingly we have no doubt that the judge was right to direct himself that a mere police report indicating that an allegation had been made, which remained unproven, was most unlikely to have substantial probative value. The correctness of the judge's decision is clearly demonstrated by the proposal that the jury should be presented with admissions. Of course, if there are agreed facts which can be presented to a jury they should be, and this procedure is especially desirable as a means of putting agreed evidence of bad character before the jury, so that a 'mini trial within a trial' is avoided. But in this case the facts of the alleged offences to which the CRIS reports related could not be agreed, because nobody knew whether the witness had committed the alleged offence or not. Indeed in some cases nobody knew whether the offence had been committed at all or not. Nor could it have been appropriate for the jury to be told, by way of admission, that police officers suspected that the witness had committed the offence, or that they had investigated him for it, because neither of those is any evidence at all that he committed it. Anyone will sympathise with the difficulties of police officers investigating complaints which are subsequently not pursued, for a great variety of reasons, but those difficulties do not convert their internal records into evidence that a named person committed an alleged offence. Mr Coffey wanted to cross examine the witnesses by suggesting that they were guilty not only of the offences of which they had been convicted, or which had resulted in cautions or penalty notices, but also about the matters in the other CRIS reports. He accepts that he would be bound by the answers given, but contends that he ought to have been allowed to put the allegation because the witness might have admitted the offence. We agree that in theory at least that could occur. It is, however, a very remote possibility, as for example the 5

6 response of U to police interviews shows. Mr Coffey did not want simply to put the allegation to the witnesses. He wanted additionally to be seen to derive what he said from police material, with a view to showing that it was likely to be true. That however would be to make the CRIS reports apparently evidence that the witness committed the offence when they were nothing of the kind. The reality is that what would almost inevitably occur is that a detailed allegation would be put to the witness, invested, if the defence application had succeeded, with some sort of authority on the basis that it derived from a police document, but that when the witness denied it the judge would have to direct the jury to ignore the whole exchange, because the questions were not evidence. There would be a plain danger that the jury might nevertheless be affected in its assessment of the witness by bad character material which it ought never to have had because it was not evidence at all and certainly lacked substantial probative value. Mr Coffey's case before us amounted to seeking this possible advantage, which was not available precisely because the CRIS reports were not evidence that the suggested offences had been committed. We should add that any such witness would have to be cautioned by the judge that he need not answer any question if the answer might incriminate him. Mr Coffey went so far as frankly to contend that if a witness thereupon declined to answer, the defendant would be able to say that that tended to demonstrate his guilt. Whether or not there might be circumstances in which such a comment might be legitimate we do not decide, but it cannot invest the answer with substantial probative value, in the absence of any other evidence, for the purposes of section 100. For these reasons we are quite satisfied that the judge was right in his ruling that the material from the CRIS reports, in which no conviction, caution or penalty notice had ensued, could not be adduced because they did not have substantial probative value. Indeed, for the most part, they had no probative value at all. A conviction is by statute evidence that the person convicted committed the offence. A caution involves a distinct admission. The position with regard to a penalty notice was not in issue before the judge because the Crown agreed to evidence of such notices being adduced, and accordingly it does not fall for decision by us either. A penalty notice may result from a distinct admission but it does not necessarily do so. The statutory condition for its issue, under section 2(1) of the Criminal Justice and Police Act 2001, is simply that a policeman has reason to believe the person guilty. It does carry the implication that the person concerned has not opted for prosecution and trial rather than acceptance and payment of the penalty. Whether, absent an admission, that carries substantial probative value as to the guilt of the person, at least unless he contends that it was understandable that he should accept the penalty, although denying the allegation, rather than be prosecuted, is not a point on which we heard any argument and it must fall for decision on the facts of each case. 6

7 R v Hamer [2011] Cr.App.R. 23(3) This case involved a fight between the appellant and a taxi-driver causing significant injury to his front teeth. The appellant claimed self-defence. The appellant had no previous convictions or cautions, however, on 7 October 2008 he had been issued with a Penalty Notice for Disorder ("PND") by the Metropolitan Police. Counsel on behalf of the appellant and the Crown both proposed to put before the jury a formal admission that the appellant had no previous convictions or cautions. Counsel for the Crown very properly told the judge that the appellant had been issued with a PND. The judge indicated that he was prepared to give a good character direction, but only if the jury were told that the appellant had been issued with a PND, although the details should not be given because he considered that they were prejudicial. He said that he would tell the jury that they might think it totally irrelevant, but they were to be given the full picture. In summing up the judge said this: "You have heard about the [appellant]. You know he is a man of 47 years old. You have heard that he has one very minor matter; the lowest possible rung of the criminal justice system; a fixed penalty for a minor public disorder. Having heard about that, members of the jury, you may think the fair thing to do is just forget about it. It is right that you are told and so nothing is withheld from you, but you may think that the fairest thing to do is to treat this man as a man of good character." The appellant was convicted and appealed on the basis of the introduction of the PND and the subsequent direction about it. Fixed Penalty Notices, including PNDs, were introduced by the Criminal Justice and Police Act 2001 for certain offences specified in section 1 of that Act. These are called "penalty offences" and include an offence under section 5 of the Public Order Act 1986, namely behaviour likely to cause alarm or distress. By section 2 of the Act, a police officer who has reason to believe that a person aged 18 or over has committed a penalty offence may give him a penalty notice in respect of the offence. A penalty notice is defined as: "a notice offering the opportunity, by paying a penalty in accordance with this Chapter, to discharge any liability to be convicted of the offence to which the notice relates." 7

8 The content of the notice is specified by section 3. Sections 4 and 5 make it clear that if the penalty is paid within 21 days no proceedings may be brought for the offence. It also sets out the right of the person issued with the notice to go to court to challenge the notice. The Act also provides by section 6 that the Secretary of State may issue guidance in respect of penalty notices. The Guidance issued by the Secretary of State in the form of a booklet in 2005 sets out the aim and purposes of the scheme as follows: "1. To offer operational officers a quick and effective alternative means of dealing with low-level, anti-social and nuisance offending. 2. To deliver swift, simple and effective justice that carries a deterrent effect. 3. To reduce the amount of time that police officers spend completing paperwork and attending court, whilst simultaneously reducing the burden on the courts. 4. To increase the amount of time officers spend on the street and dealing with more serious crime." Under the heading "Crime Recording" the booklet states: "The Penalty Notice for Disorder scheme is a positive means of disposal in dealing with recorded crime and reportable offences, and is a major contribution towards narrowing the justice gap. In order that the integrity of the penalty notice scheme is maintained, reporting and recording of relevant offences must be carried out in accordance with the Home Office counting rules and individual force policies." The form which would have been issued to the appellant made two matters clear: first, that if the penalty was paid, then the proceedings would not be brought; and secondly, the person to whom the notice was issued could challenge it. It then provided: "A record of this notice will be kept in the interests of justice for administrative purposes. This information may be used to help decide whether or not to issue you with another disorder penalty notice in relation to any subsequent offences for which such notices may be issued." The Court noted that The fixed penalty notice scheme was commented on by this court in R v Gore and Maher [2009] EWCA Crim 1424, where Lord Judge CJ, in giving the judgment of the court, stated: "11. The penalty notice scheme provides a useful method for dealing with low level crime, for example, the sort of public disorder which occurs in 8

9 city centres at night, which is troublesome and anti-social, without involving serious criminality. Payment of the penalty involves no admission of guilt on the part of the person to whom it is given, nor does it create a criminal record. These are important limitations." The Court added that the PND scheme was intended to deal with suspected low level offending and that it has been useful in dealing with the problems of disorder in town centres without (a) having to prove that an offence had been committed or, (b) that an offence had been committed by the person to whom the notice had been issued. But the Court noted that the scheme went no further than that. A PND is different therefore from a caution. The Court noted: It is correct to describe Fixed Penalty Notices and PNDs as punishment for suspected offending, or a deterrent, as they plainly do deter. However, it seems to us to cause confusion, and may well have caused confusion in the present case, by the assumption that the issue of such a notice is some form of "swift, simple and effective justice" which is not in the ordinary sense of these terms. A PND is not an admission of guilt, nor any proof that a crime has been committed. It was therefore irrelevant and should not have been admitted. The Court did leave something of a failsafe by adding: It may well have been the case that in some circumstances those appearing for the Crown would wish to adduce evidence relating to the matters to which the PND had been issued, but that is not this case and we need not consider that or its relevance to the bad character provision of the Criminal Justice Act Unfortunately for Mr Hamer, the Court of Appeal nonetheless came to the conclusion that the conviction was safe. Cautions as bad character R v Olu [2011] 1 Cr.App.R. 404(33) Mr Olu was tried (together with others) for murder following a stabbing. The offence involved a fight between groups where weapons were allegedly carried by Mr Olu s group. Mr Olu and two others were convicted. There were issues of disclosure before the appeal 9

10 court but Mr Olu challenged the admission of bad character evidence relating to a caution for possession of a knife and the subsequent directions concerning that knife. Mr Olu denied any active participation in the offence. His caution related to events in Mr Olu was the driver and sole occupant of a car which was stopped by the police. A flick knife was found and he was taken to the police station. He signed the form for a caution, admitting possession of an offensive weapon. The application for admission of the caution was resisted on a number of grounds including that Mr Olu denied he had committed the offence because he said he did not know the car had a knife in it. He accepted the caution because he had been told that if he did so he would not have to go into a cell, he would not need a solicitor and he could be on his way. At the time, he had not appreciated the significance of what he had agreed to do by admitting the offence and signing the caution. The Judge admitted the caution as evidence of propensity. Mr Olu gave evidence to the effect stated above. The crown did not contradict his account. They relied solely on the caution and did not call any evidence to explain the circumstances in which a police officer had accepted the admission and administered a caution. The Judge refused to give any sort of good character direction. In her summing up, the judge directed the jury that before they could consider the contention of the Crown that Mr Olu s admission that he had carried a knife in a public place in 2006 was relevant, they had to be sure that he had committed the offence in If they were not sure they should ignore it. It was only if they were sure that they should consider: "whether that fact does establish such a tendency to possess a knife in a public place. When considering that matter bear in mind it is but one single occasion. If you do find it does, however, establish a tendency, then it is for you to resolve how far that helps you resolve the question as to whether he had a knife with him on this occasion" The matters for the Court of Appeal were: i) The right to challenge the admission contained in the caution. ii) The basis on which the evidence was admitted, its admissibility and its relevance. iii) The need for a good character direction. The right to challenge the admission contained in the caution: The Court said that it is clear, as a matter of principle, that evidence of the commission of a previous offence contained in an admission, which is relied on as 10

11 reprehensible conduct, can be challenged... [and that] the amendments made to the Criminal Procedure Act 1865 and to the Police and Criminal Evidence Act 1984 (PACE) enable a defendant to adduce evidence to show that he was not guilty of an offence of which he had been convicted: Further in the case of Jones v Whalley [2006] UKHL 41 at paragraph 6; the issue was whether a subsequent private prosecution should be stayed where a caution had been given for the offence. A caution is a process for dealing with less serious offenders simply and quickly by diverting them from unnecessary appearance in the criminal courts; an explanation has to be given of its consequences. It has been made clear that it was quite distinct from a conviction. The difference is underlined by provisions of s. 49 and schedule 10 of the Criminal Justice Act which provide that all cautions are spent at the time they are given; transitional provisions had the effect of making the caution given to Mr Olu in 2006 a spent caution. In the course of his judgment in the Divisional Court in Jones v Whalley, Sedley LJ (with whom Beatson J agreed) pointed out at paragraph 9:"It is not the case that the record of a caution administered to an adult is a criminal conviction for any purpose at all. No doubt it may be placed among the defendant's antecedents if on some future occasion he is convicted; but that is probably all. If it was sought to introduce the caution as evidence of guilt on a subsequent private prosecution for the same offence (assuming that such a prosecution is not an abuse) it seems to me overwhelmingly likely that the court would exclude it, whether under section 78 of the Police and Criminal Evidence Act 1984 or at common law as an admission obtained by means of an inducement. " In short then the Court agreed that a person can challenge the admission contained in the caution he has accepted (although notice must be given of that under Crim PR 35.3(4)(b). The basis on which the evidence was admitted, its admissibility and its relevance: The caution was admissible to show a propensity to possess a knife in a public place. The Court of Appeal did note that great care should be taken in admitting a caution when the allegation is one of murder. The Court accepted that a caution could involve an admission of guilt very different from a plea of guilty before a Court. However the evidence was relevant and admissible and Mr Olu was able to give evidence as to his position. 11

12 The need for a good character direction: The judge should have directed that if the jury found that he had not committed a crime over the incident involving the caution then he was entitled to be treated as a man of good character (using the content of the good character direction), but if they found he had committed a crime then he was not so entitled. Hearsay as sole or decisive evidence for a conviction R v Horncastle [2011] A.C. 78 Each of the appellants was convicted on indictment of a serious criminal offence. Each had an appeal against conviction dismissed by the Court of Appeal. Each appealed on the ground that they did not receive a fair trial, contrary to article 6 of the European Convention on Human Rights. The appeal of each is based on the fact that there was placed before the jury the statement of a witness who was not called to give evidence. In each case the witness was the victim of the alleged offence: Following an allegation of GBH with intent the victim, Mr Rice, died (for reasons unconnected with the GBH), but not before he had made a witness statement to the police about what had happened to him. His statement was read at trial and although there was other evidence to support it the Court of Appeal concluded that the statement was "to a decisive degree" the basis upon which the appellants were convicted (Horncastle and Blackmore); Mr Marquis and Mr Graham were convicted of kidnapping a young woman called Hannah Miles. She made a witness statement to the police in which she described what happened to her. The day before the appellants' trial she ran away because she was too frightened to give evidence. Her statement was read to the jury. A considerable body of oral evidence was also given at the trial. The Court of Appeal held that the appellants' convictions did not rest on the evidence of Miss Miles "to a decisive extent". The appellants challenge that finding. Mr Rice's witness statement was admitted pursuant to section 116(1) and (2)(a) of the Criminal Justice Act 2003 ("the CJA 2003"), which makes admissible, subject to conditions, 12

13 the statement of a witness who cannot give evidence because he has died. Miss Miles' witness statement was admitted pursuant to section 116(1) and (2)(e) of the CJA 2003, which makes admissible, subject to conditions, the statement of a witness who is unavailable to give evidence because of fear. The principal issue raised by these appeals is whether a conviction based "solely or to a decisive extent" on the statement of a witness whom the defendant has had no chance of cross-examining necessarily infringes the defendant's right to a fair trial under articles 6(1) and 6(3)(d) which provide: "(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law... (3) Everyone charged with a criminal offence has the following minimum rights:... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him." In short the appellants suggested the hearsay provisions of the 2003 Act could be read down or the material should have been excluded under Section 78 of PACE. Reliance was placed on the cases of Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1. In each of those applications statements had been admitted in evidence at a criminal trial of a witness who was not called to give evidence. The Strasbourg Court held that, in each case, the statement was "the sole or, at least, the decisive basis" for the applicant's conviction. The Court reviewed its own jurisprudence and concluded that this established that the rights of each applicant under articles 6(1) and 6(3)(d) had not been respected. The Court took as its starting point the following statement in Lucà v Italy (2001) 36 EHRR 807 at paragraph 40: " where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by article 6". The Court of Appeal did not accept that the decision in Al- Khawaja was determinative of the results of these appeals. It held that, in the circumstances of each of the appeals, the appellants had received a fair trial and dismissed the appeals. The case of Al-Khawaja has been referred to the Grand Chamber of the ECHR (under Article 43(1) of the Convention who were awaiting the result of the UKSC judgment. The Grand Chamber has still not adjudicated. In effect the UKSC decision amounts to the UK s position on appeal. 13

14 The Court of Appeal decision: The Court of Appeal considered in some detail: The background to, and the provisions of, Chapter 2 of Part 11 of the Criminal Justice Act 2003; and The jurisprudence of the European Court of Human Rights up to and including Al-Khawaja v. U.K.; Tahery v. U.K. [2009] Crim.L.R. 352; It decided: Provided the terms of the Act are observed, the admission of the statement of an absent, but identified, witness will not involve a breach of Article 6(1) or (3)(d) of the European Convention on Human Rights even if the evidence of the absent witness is the sole or decisive evidence against the accused; The difficulty with the sole or decisive test is that it makes two assumptions: 1) all hearsay critical to a case will be potentially unreliable in the absence of testing in open court; 2) the fact finder cannot be trusted to assess the weight of such evidence; In addition it is near impossible to decide if the evidence is indeed sole or decisive ; The principal safeguard in this respect is section 125 of the Act which imposes a duty on the court to stop a case where it is satisfied that the hearsay is so unconvincing that, considering its importance to the case as a whole, it would be unsafe to convict; Where the hearsay is demonstrably reliable, or its reliability can be properly tested and assessed, there are, in the language of the European Court of Human Rights, sufficient counter-balancing measures to make the trial fair; Given that Article 6(3)(d) does not create an absolute right in an accused to have every witness against him present to be examined, the balance struck by the statutory code is a legitimate one and consistent with the Convention; Where a witness is too frightened to come to court, it matters not whether that fear was brought about by or on behalf of the defendant; It is, however, important that all possible efforts are made to get the witness to court and this should include making the witness understand the importance of a citizen s duty and that the violent and intimidatory will only flourish the more if that duty is 14

15 not done, whilst they will normally back down in the face of a determination that it be performed; For this reason, it is of particular importance that assurances are never given to potential witnesses that their evidence will be read; whilst the Act requires fear to be construed broadly, it is not expected that fear based on inappropriate assurances by police officers will result in the evidence being read; The Court of Appeal concluded by saying that if the Act is applied in a properly rigorous manner then there will be no Human Rights issue The Supreme Court decision: Long before 1953 when the Convention came into force the common law had, by the hearsay rule, addressed that aspect of a fair trial that article 6(3)(d) was designed to ensure. (2) Parliament has since enacted exceptions to the hearsay rule that are required in the interests of justice. Those exceptions are not subject to the sole or decisive rule. The regime enacted by Parliament contains safeguards that render the sole or decisive rule unnecessary. (3) The continental procedure had not addressed that aspect of a fair trial that article 6 (3)(d) was designed to ensure. (4) The Strasbourg Court has recognised that exceptions to article 6(3)(d) are required in the interests of justice. (5) The manner in which the Strasbourg Court has approved those exceptions has resulted in a jurisprudence that lacks clarity. (6) The sole or decisive rule has been introduced into the Strasbourg jurisprudence without discussion of the principle underlying it or full consideration of whether there was justification for imposing the rule as an overriding principle applicable equally to the continental and common law jurisdictions. 15

16 (7) Although English law does not include the sole or decisive rule it would, in almost all cases, have reached the same result in those cases where the Strasbourg Court has invoked the rule. (8) The sole or decisive rule would create severe practical difficulties if applied to English criminal procedure. (9) Al-Khawaja does not establish that it is necessary to apply the sole or decisive rule in this jurisdiction. Text messages and hearsay R v Twist [2011] 3 All E.R This case consisted of four conjoined appeals (Twist, Boothman, Tomlinson & Kelly and Lowe) all concerning text messages, although the court was careful to say that the principles in the judgment could extend to any form of communication ( s, overheard conversation etc). The cases concerned: Text messages received by the defendant which were alleged to be requests that he supplied drugs (Twist and Boothman); Text message received by a defendant requesting a gun be delivered to the sender where the key issue was whether the defendants had a gun in their possession at the time when the victim of an alleged armed robbery said they had (Tomlinson & Kelly); Text messages sent by a defendant alleged to be confessions of rape or at least significant admissions against interest to his young girlfriend in a case where consent was in issue. The Criminal Justice Act 2003 in effect contains a complete code for hearsay in those criminal proceedings to which the strict rules of evidence apply. 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.." 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 16

17 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. Section 115 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." As such a matter stated is governed by the hearsay rules only if one of the purposes of the maker was as set out. The expression assertion is not used. The Court of Appeal has held that the intention of the 2003 Act was to reverse earlier authorities that implied assertions were hearsay (R v Singh [2006] EWCA Crim 660; [2006] 2 CR App R 12 at 201). That is also apparent from the Law Commission report, see in particular paragraphs , and This is because the concept of assertion can lead to difficulties and the real question is which sort of statements require legal protective mechanisms. So the Act concentrates the mind on the matter stated which is is sought to prove. This is defined by reference to the purpose of the maker. The matter stated, to be hearsay, must be something which the maker intended someone (generally the recipient, since it is to him that the communication is addressed) to believe or act upon. This is usually a fact but may be an opinion. 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. The purpose of these words is not to cause the recipient to believe or act upon either of those 17

18 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. 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. As such 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. 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 18

19 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. The Court of Appeal pointed out that just because a communication is not hearsay, that does not mean it is admissible. It must be relevant and whatever conclusion is sought to be drawn from the communication must be a legitimate conclusion. The Court of Appeal therefore decided the appeals as follows: Text messages received by the defendant which were alleged to be requests that he supplied drugs (Twist and Boothman): 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. Text message received by a defendant requesting a gun be delivered to the sender "Need dat gun today so can sell it and give you lot da tenner back. Does faws still want it?"; where the key issue was whether the defendants had a gun in their possession at the time when the victim of an alleged armed robbery said they had (Tomlinson & Kelly): 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. 19

20 Text messages sent by a defendant alleged to be confessions of rape or at least significant admissions against interest to his young girlfriend in a case where consent was in issue: 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. 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. 20