O' Connor, R. v

Telephone records may be admitted as business-document hearsay where the statutory conditions are established. A statement from the telephone provider is not invariably required. The trial judge may infer from the documents themselves that the conditions are met.

A contemporaneous recording of a co-conspirator’s remark may be admitted after applying the statutory hearsay criteria. The need to consider a separate provision concerning an available witness depends on the nature of the evidence. Fresh evidence does not justify disturbing a conviction unless it could have affected the verdict. A sentence and travel restriction order will stand where they are neither wrong in principle nor manifestly excessive.

The applicant was convicted by a jury at the Crown Court at Liverpool of conspiring to import and supply heroin and cocaine. The prosecution alleged that he sourced 38 kilograms of Class A drugs from Belgium and occupied the leading role in the conspiracy. He received 20 years’ imprisonment and a ten-year travel restriction order following release.

After a single judge refused permission, he renewed applications for leave to appeal conviction and sentence. The conviction challenges concerned Belgian mobile-phone records, covert probe evidence and proposed fresh evidence suggesting that another drug conspirator may have used a key telephone. The sentence challenge concerned drug purity, the length of the sentence and the travel restriction order.

1. The renewed applications for leave to appeal conviction and sentence were dismissed.

2. On the first conviction ground, the Belgian telephone records were admissible. The court considered it strongly arguable that computer-derived records were not statements made by a person. In any event, if a person’s extraction of the data constituted a statement, the requirements of section 117 were met. An employee of either the telephone provider or the police could create or receive the document in the course of an occupation. The person extracting the information had personal knowledge of that process. A supporting statement from the provider was desirable but was not a statutory precondition; the judge could infer satisfaction of the conditions from the documents themselves.

3. On the second ground, the trial judge had properly admitted the contemporaneous probe recording after considering section 114 and its criteria. R v Z [2009] EWCA Crim 20 concerned a living complainant who could have given evidence. Its concern about consideration of section 116 did not apply to a recording of a co-defendant’s contemporaneous remark. The evidence was properly admissible.

4. The proposed fresh evidence about Dion Lee’s separate drug conspiracy could not have affected the verdict. The evidence concerning the sequence and use of the relevant telephones, the probe evidence and the available cell-site evidence strongly connected the key telephone to the applicant.

5. The sentencing challenge was misconceived. The scale of the importations, the sampled purity, the applicant’s leading role, his previous conviction and the absence of a guilty plea meant that 20 years’ imprisonment was not manifestly excessive. The travel restriction order was justified by the Belgian base of the conspiracy and the applicant’s foreign criminal associates. It operated during his licence period and could be reviewed after five years. The judge was entitled to make it in accordance with R v Nee [2004] 2 Cr App R(S) 81.

• Court of Appeal (Criminal Division) — Following the single judge’s refusal of permission, the court dismissed the renewed applications for leave to appeal conviction and sentence: [2010] EWCA Crim 2287.

• Crown Court at Liverpool — On 11 February 2008, a jury convicted the applicant of conspiracy to supply Class A controlled drugs. He was sentenced to 20 years’ imprisonment and made subject to a ten-year travel restriction order following release.