Chrysostomou, R v

Under the Criminal Justice Act 2003, an out-of-court representation falls within the statutory hearsay code only when it is tendered to prove a matter stated in it. Evidence adduced only to establish an implied assertion or underlying state of affairs is outside that code, because the former common-law rule against implied assertions has been abolished.

Bad-character evidence admitted after an attack on another person’s character must nevertheless be excluded under section 101(3) where its admission would adversely affect the fairness of the proceedings. Material with no real relevance beyond blackening a defendant’s general character or credibility is insufficient. A conviction is unsafe where the appellate court cannot be sure that such wrongly admitted evidence made no material difference to the verdict.

The appellant was convicted in the Crown Court at Guildford of possessing an imitation firearm with intent to cause fear of violence and of putting a woman in fear of violence by harassment. He had separately pleaded guilty to criminal damage after breaking a window at her home.

At trial, after the appellant alleged that the complainant used cocaine and owed him money, the Crown was permitted to adduce four incoming text messages apparently requesting drugs from him. The judge treated the messages as non-hearsay bad-character evidence, admissible both to correct a false impression and because the appellant had attacked the complainant’s character.

The appeal concerned whether the texts were hearsay, whether the statutory bad-character gateways applied, whether fairness required exclusion, and whether the resulting convictions were safe.

1. The appeal against conviction was allowed. The conviction for possessing an imitation firearm with intent to cause fear of violence was unsafe and was set aside. The conviction under section 4(1) of the Protection from Harassment Act 1997 was also unsafe, but was replaced with a conviction under section 2 of that Act.

2. The text messages were not inadmissible hearsay. The statutory code asks whether the evidence is relevant, whether it is a statement within section 115(2), and whether it is tendered to prove a matter stated. The court accepted, without deciding, that the messages were statements. They were tendered to establish the implied assertion that the appellant was able to supply drugs, not to prove the factual content of the requests. The code therefore did not apply. This was consistent with R v Leonard [2009] EWCA Crim 1251 and R v Singh [2006] 1 WLR 1564; the former common-law approach in R v Kearley [1992] 2 AC 228 had been displaced by statute.

3. The appellant’s evidence that the complainant used and obtained cocaine was an attack on her character. It therefore engaged the section 101(1)(g) gateway, subject to the mandatory fairness safeguard in section 101(3). However, section 101(1)(f) did not apply. There was no evidential basis, independent of the proposed messages, for saying that the appellant had given the jury a false impression that he was not a drug dealer.

4. The judge should have excluded the messages under section 101(3) of the Criminal Justice Act 2003. In the absence of a Crown case or other evidence that the appellant supplied drugs to the complainant, the messages could not assist on her drug use, her alleged debt, or his motive. At most, they suggested that he might be capable of supplying drugs to others. Their practical effect was to prejudice the jury against him and undermine his general credibility.

5. Although the prosecution case was strong and the jury received directions about bad character, the court could not be sure that the messages had made no material difference to the verdicts. They risked diverting the jury from the real issues. Under section 3(2) of the Criminal Appeal Act 1968, the court substituted the admitted section 2 harassment offence, imposed two months’ imprisonment concurrent with the criminal-damage sentence, and left the restraining order in force.

• Court of Appeal (Criminal Division). Allowed the appeal against conviction. It set aside the firearm conviction and substituted a conviction under section 2 of the Protection from Harassment Act 1997 for the section 4(1) harassment conviction.
• Crown Court at Guildford. On 9 December 2009, convicted the appellant of possessing an imitation firearm with intent to cause fear of violence and putting a person in fear of violence by harassment. The appellant had pleaded guilty to criminal damage.