Leonard, R. v

Under the statutory hearsay code in the Criminal Justice Act 2003, a non-oral communication is hearsay where it is tendered to prove matters asserted in it and the sender's purpose was to cause the recipient to believe, or act on, those matters. The classification depends on the communication's content and purpose. Mobile-phone entries without an assertive purpose may fall outside the code, but messages communicating satisfaction or dissatisfaction with a transaction may not.

Wrongly admitted hearsay cannot be received as bad-character evidence. Nevertheless, a conviction may remain safe where the admissible evidence independently makes the case compelling and the inadmissible material did not taint the trial.

The appellant was convicted after a jury trial of possessing heroin and crack cocaine with intent to supply. Police had found individually wrapped class A drugs, cash and several mobile telephones in his bedsit and on his person.

At trial, the prosecution relied on two unidentifiable senders' text messages as evidence that the appellant had recently supplied drugs. The Recorder admitted them, treating them as admissible and subsequently as bad-character evidence. The appellant appealed against conviction, contending that the texts were hearsay, unfairly admitted, and inadequately dealt with in the summing-up.

The central issue was whether the text messages fell within the statutory hearsay regime and, if so, whether their wrongful admission rendered the convictions unsafe.

1. Appeal dismissed. The Recorder wrongly admitted the two text messages, but the convictions were safe.

2. The common-law hearsay rules in criminal proceedings have been replaced, subject to preserved exceptions, by the statutory code in the Criminal Justice Act 2003. The court must ask whether the material is a non-oral statement of fact or opinion and whether it is tendered to prove a matter stated. It must then consider whether the sender's apparent purpose was to cause the recipient to believe that matter or act upon it.

3. Both texts were statements within section 115(2). The prosecution needed the jury to accept the matters stated in them before inviting an inference that the appellant had supplied drugs. Each sender's apparent purpose was to communicate his satisfaction or dissatisfaction with the alleged transaction to the recipient. The texts were therefore hearsay within sections 114 and 115.

4. This conclusion was consistent with R v Singh [2006] EWCA Crim. 660, where stored telephone numbers lacked the relevant assertive purpose, and with R v MK [2007] EWCA Crim. 3150. The Crown accepted that the texts could not properly have been admitted in the interests of justice under section 114(1)(d). They were consequently inadmissible, whether as bad-character evidence or otherwise.

5. The error did not render the verdicts unsafe. The admissible evidence included substantial quantities of individually wrapped drugs, cash, multiple telephones, expert evidence and the appellant's false account concerning the intended use of the drugs. The judge confined the texts to a small part of the case. Their admission did not taint the remainder of the trial.

• Court of Appeal (Criminal Division): appeal against conviction dismissed: [2009] EWCA Crim 1251.
• Trial before Mr Recorder Walker: the appellant was convicted by a 10–1 majority of two counts of possession of class A drugs with intent to supply and sentenced to five years' imprisonment concurrently.