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For statutory hearsay, the decisive question is the apparent purpose of the speaker. Words spoken solely to discover the availability and price of drugs do not state a matter within section 115(3) of the Criminal Justice Act 2003.

Such words may be admitted as evidence that they were spoken and may support an inference about the recipient’s involvement in drug supply. The former common-law exclusion of implied assertions does not apply unless preserved by the statutory scheme. The section 114 gateways are therefore immaterial where the evidence is not hearsay.

The defendant was tried at Burnley Crown Court on charges concerning the offer, supply and intended supply of amphetamine. The prosecution relied on a covertly recorded telephone call in which a convicted dealer asked for the availability and price of amphetamine paste. Telephone records and the defendant’s admission linked the receiving telephone to the defendant.

The defence accepted the fact and duration of the call but objected to the caller’s words as hearsay. The Recorder upheld that objection in a terminating ruling, after which the jury was discharged. The Crown appealed under section 58 of the Criminal Justice Act 2003. The central issue was whether the request was hearsay when relied on to support an inference that its recipient was concerned in drug supply.

Decision

1. The prosecution appeal was allowed. Richards LJ, giving the judgment of the court, held that the Recorder had erred in treating the recorded words as hearsay. The terminating ruling was reversed and a fresh trial in the Crown Court was ordered in the interests of justice.
2. Section 114(1) of the Criminal Justice Act 2003 applies only to a statement tendered as evidence of a matter stated. Under section 115(3), the relevant inquiry is the apparent purpose of the maker of the words: whether it was to cause another to believe a matter, or to act on it.
3. The caller’s words were no more than an inquiry about the availability and price of amphetamine. Their sole purpose was to obtain that information. They were not made to cause anyone to believe, or to act upon, a stated fact or opinion. They consequently did not concern a matter stated and were admissible without satisfying a statutory hearsay gateway.
4. The court applied R v Sukadeve Singh [2006] EWCA Crim 660. The statutory regime abolished the former common-law rule which treated implied assertions as hearsay, except where expressly preserved. The evidence could therefore be used as direct evidence that the inquiry was made, from which the jury could infer that the recipient was involved in supplying drugs. The historic approach in Kearley did not govern the statutory issue.

• Court of Appeal (Criminal Division). The Crown’s prosecution appeal was allowed in [2007] EWCA Crim 3150. The court reversed the terminating ruling and ordered a fresh trial.
• Crown Court at Burnley. The Recorder ruled that the recorded caller’s words were hearsay and excluded them. The jury was discharged following the prosecution’s request for an adjournment to consider an appeal.