Singh, R. v

For the transitional provisions of the Criminal Justice Act 2003, criminal proceedings mean the trial at which factual issues are determined. The new evidential provisions therefore apply to every trial beginning after 15 December 2004, irrespective of the date of the indictment.

Read together, sections 114 and 118 abolish the former common-law hearsay rules except where expressly preserved. The resulting statutory hearsay rule does not extend to unintended implied assertions. Telephone-memory entries and similar implied assertions are therefore admissible as non-hearsay evidence, subject to any applicable statutory route.

The appellant was convicted at Preston Crown Court of conspiracy to kidnap and sentenced to eight years’ imprisonment. The prosecution alleged that he used two mobile telephones which made extensive calls to other conspirators during the kidnapping. Telephone-memory entries and related call evidence formed an important part of the case.

On appeal, he challenged the application of the Criminal Justice Act 2003 to his re-trial, the admission of the telephone entries as hearsay, the ruling that there was a case to answer, the use of a co-conspirator’s telephone number, and an indication concerning bad-character evidence. The central issue was whether unintended implied assertions remained inadmissible hearsay under the 2003 Act.

1. The appeal against conviction was dismissed. The conviction was not unsafe. The court also certified the proposed point of law of general public importance, but refused leave to appeal to the House of Lords.

2. The court followed R v Bradley [2005] 1 Cr App R 397. For sections 112(1) and 141 of the Criminal Justice Act 2003, criminal proceedings mean a trial determining factual issues, rather than the whole process from charge. The Act’s hearsay and bad-character provisions applied because this trial began after 15 December 2004. It did not matter that the original indictment and the first trial pre-dated that commencement date.

3. Sections 114 and 118, read together, abolished the common-law hearsay rules except those expressly preserved. They substituted a statutory rule which did not treat implied assertions as hearsay. The majority approach in R v Kearley [1992] 2 AC 228 HL had consequently been set aside by statute.

4. The telephone-memory and envelope entries were implied assertions, not matters stated within section 115. They were admissible as non-hearsay. The court further observed that they were admissible as co-conspirator statements under section 118(1)(vii), and that section 114(2)(d) provided a further possible route.

5. There was a case to answer because, on the prosecution evidence, no person other than the appellant was a candidate for the user of the two relevant telephones. The section 78 challenge and the complaint concerning the bad-character ruling under section 101 had no substance.

• Court of Appeal (Criminal Division): By [2006] EWCA Crim 660, dismissed the appeal against conviction, certified a question of law of general public importance, and refused leave to appeal to the House of Lords.
• Preston Crown Court: On 6 July 2005, following trial before Judge Robert Brown, convicted the appellant of conspiracy to kidnap and sentenced him to eight years’ imprisonment.