Bucknor v R

Online material may constitute hearsay, including where it uses photographs or other pictorial representations. Where its admission is sought under the interests-of-justice gateway in Criminal Justice Act 2003, the judge must identify its probative issue and personally assess the statutory reliability factors. The jury’s ability to detect unreliability cannot substitute for that judicial assessment.

A jury must not be invited to treat online material as authored by an accused unless there is an evidential basis capable of establishing that attribution. An appellate court should not uphold a conviction by deciding that the defence account was incredible where that would usurp the jury’s fact-finding function.

The appellant was convicted of murdering Ryan Bravo at Woolwich Crown Court. An earlier jury had failed to agree on the murder charge, although it convicted him of possession of a firearm.

At the retrial, the prosecution relied on a Bebo profile and linked YouTube material portraying the OC gang as violent. The prosecution could not identify the uploader or provide the relevant IP evidence. The appellant denied creating, knowing about, or contributing to either item. The trial judge admitted the material and directed the jury that it could use it if sure that it was the appellant’s website or that he had put material there.

The appeal concerned the admissibility of that online material, the adequacy of the jury direction, and whether the conviction could safely stand despite the other evidence.

Decision

1. The appeal was allowed. The court quashed the murder conviction and ordered a retrial.
2. The Bebo direction was erroneous. There was no evidential basis on which a jury could properly be sure that the profile was the appellant’s or that he had made its entries. The prosecution accepted that submission. The direction therefore invited the jury to draw conclusions which no reasonable jury could reach.
3. The Bebo material, and similarly the YouTube material, appeared on the available evidence to be hearsay. An account holder’s representation that the appellant belonged to a gang was capable of being a representation of fact or opinion within section 115 of the Criminal Justice Act 2003. If admitted through section 114, its probative value had to be assessed by reference to the issue whether the appellant’s presence at the shooting was innocent.
4. The judge did not conduct the required interests-of-justice assessment. He did not identify the maker, assess the reliability of the maker or statement, or ask whether the prosecution could call the maker and, if not, why not. Applying Musone [2007] EWCA Crim 1237, the court held that reliability was for the judge when deciding admissibility. Demonstrable unreliability before the jury could not justify admission.
5. The erroneous admission and direction rendered the conviction unsafe. The court declined to apply the proviso: accepting the Crown’s submission would require the appellate court itself to decide that the appellant’s account was so incredible that no jury could acquit. That would usurp the jury’s function, particularly after a previous jury had failed to agree and the retrial jury had closely examined the online material.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the murder conviction and ordered a retrial: [2010] EWCA Crim 1152.
• Woolwich Crown Court: HHJ Byers convicted the appellant of murder on 28 September 2009. At an earlier trial, the jury had not agreed on the murder charge but had convicted him of possession of a firearm.