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3/5/2018 R. v. Twist and others [2011] All ER (D) 102 (May); [2011] EWCA Crim 1143) | CLJ

https://www.criminallawandjustice.co.uk/clj-reporter/R-v-Twist-and-others-2011-All-ER-D-102-May-2011-EWCA-Crim-1143 1/2

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Date: 20th May 2011

R. v. Twist and others [2011] All ER (D) 102 (May); [2011] EWCA Crim 1143)

Evidence

Admissibility of Hearsay Evidence

In R. v. Twist and others, judgment delivered May 12, 2011, the Court of Appeal, Criminal Division, gave consideration to the way in which the new rules on hearsay, contained in the Criminal Justice Act 2003 (CJA 2003), applied to communications, such as text messages, made to or by the defendant. It held that the question of whether such communication amounted to hearsay depended on the matter for which it was relied upon and the fact which it was sought to prove.

Four cases were heard together because they concerned the way in which the new rules on hearsay, contained in CJA 2003, applied to communications made to or by the defendant. All of the cases involved text messages sent by the defendants and three of the cases involved messages which had been received by them. The defendants, T and B, had been charged with possessing Class A drugs with intent to supply and they were alleged to have received messages requesting the supply of drugs. In the case of TM and K, the charge was robbery, the key issue being whether they had had a gun at the relevant time. The message received by one of them had been a request for a gun to be delivered to the sender of the text. In respect of the defendant, L, the charge was rape and the issue was one of consent. The prosecution alleged that messages sent by him to the complainant following the alleged rape amounted to confessions or admissions. In all the cases, the defendants had sought to exclude the text messages on the basis that they were hearsay. However, the Judge had found that the text messages were not hearsay and they were admitted under CJA 2003, s.114. The defendants were convicted. They appealed against conviction.

Consideration was given to the application of the hearsay provisions of CJA 2003, in particular, ss.114 and 115, to forms of communication such as text messages, and whether the Judge had erred in admitting the relevant text messages into evidence. The appeal would be dismissed.

(1) CJA 2003 undoubtedly abolished the common law of hearsay except where it was expressly preserved. Generally, the question of whether the hearsay rules applied to communication such as text messages was to be approached in the following way: (i) the relevant fact (matter) that was sought to be proved had to be identified; (ii) it had to be asked whether there was a statement of that matter in the communication, if no, then no question of hearsay arose; (iii) if yes, it had to be asked 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 was hearsay, if no, it was not. The answer to those questions would be case sensitive. The same communication might sometimes be hearsay and sometimes not, depending on the matter for which it was relied upon and the fact which it was sought to prove. It was 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 was as stated, namely true. Only the latter would bring the hearsay rules into operation. Even if the communications were not relied upon for their hearsay content, that did not relieve the court of applying the usual tests for admissibility.

The important opening words of CJA 2003, s.114:

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3/5/2018 R. v. Twist and others [2011] All ER (D) 102 (May); [2011] EWCA Crim 1143) | CLJ

https://www.criminallawandjustice.co.uk/clj-reporter/R-v-Twist-and-others-2011-All-ER-D-102-May-2011-EWCA-Crim-1143 2/2

“admissible as evidence of any matter stated”, demonstrated that the Act involved asking what it was that a party was seeking to prove. Section 115(3) of the Act imposed a crucial limitation on the otherwise general expression “matter stated”. It was not enough that the matter was stated. It was governed by the hearsay rules only if one of the purposes of the maker was as set out.

(2) Admission of evidence under s.114(1)(d) was not routine, nor a matter of mere form; it required careful thought, having due regard to reliability and the opportunity to test it. There were different rules applicable to hearsay; for example s.121 where there was multiple hearsay, the power contained in s.125 to stop a case dependent on hearsay if the evidence was 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. If the maker(s) of the communication was or were unknown, that would be very relevant to whether their hearsay evidence ought to be admitted. While there might be some forms of anonymous hearsay which were nevertheless admissible, such as business records or the statement of an unidentified agent of the defendant, the hearsay testimony of an anonymous witness might well fail the interests of justice test of admissibility; an example was, where the contents of an anonymous 999 call were inadmissible as evidence that the facts reported were true.

In the instant case, the text messages in the case of T were not hearsay as the matter which had been sought to be proved was that the defendant was a supplier of drugs. That was a relevant matter and the prime issue in the case was whether he was or 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. For similar reasons, the text messages in the case of the other defendants were not hearsay. Accordingly they had been rightly admitted.

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