Bains, R. v

Text messages of a type associated with drug dealing are hearsay and require satisfaction of a statutory gateway before admission. The interests of justice may nevertheless support their admission where other evidence links the messages to drug supply. The prosecution need not call the actual senders merely to prove the truth of their contents. The messages can be relevant because of their character and context, even if a sender may have been untruthful.

On an application to appeal, evidence of associates’ offending may properly form part of a network of circumstantial evidence. A misstatement of the amount of unexplained money will not undermine a conviction where the correct figure remains substantial and the court is sure that the verdict would have been unchanged.

R v Bains concerned renewed applications for permission to appeal conviction and sentence. At Luton Crown Court, the applicant was convicted of two offences of being concerned in the supply of Class A controlled drugs. He had also pleaded guilty to money-laundering offences and received concurrent sentences, the longest being 15 years’ imprisonment.

The prosecution case was circumstantial. It relied on substantial unexplained sums of money, multiple mobile telephones, text messages, associates’ criminal histories, scales and the admitted laundering of criminal proceeds. The applicant challenged the admission of text-message hearsay and bad-character evidence, aspects of the summing-up, and the sentence. The central issues were whether the evidential rulings rendered the conviction unsafe and whether 15 years’ imprisonment was excessive.

1. The court refused permission to appeal against both conviction and sentence. Per Stanley Burnton LJ, delivering the court’s judgment, the evidence against the applicant was overwhelming and none of the proposed grounds was realistically arguable.
2. Following Leonard [2009] EWCA Crim 1251, text messages of the kind used in the case were hearsay. They could therefore be admitted only through a statutory gateway. The trial judge had correctly treated them as hearsay and considered whether admission was in the interests of justice.
3. The interests of justice could support admission where there was evidence that the messages were of a kind sent or received in drug dealing. It was unrealistic to require the Crown to call street dealers to prove their messages true. The contents might be untrue, but the messages could still be relevant as evidence of the nature of communications on telephones connected with drug supply. The trial judge’s admission decision was reasonable and correct.
4. The associates’ bad-character evidence was properly admitted. It formed part of a circumstantial network of evidence which, taken together, supported the allegation that the applicant was a substantial drug dealer.
5. The summing-up gave the jury an adequate direction to decide the case on the evidence before it. Any omission expressly to state that the applicant had no previous conviction for drug dealing was minor and could not have affected the verdict.
6. The judge’s reference to £500,000 passing through the applicant’s hands was inaccurate; the figure should have been just under £280,000. That remained a very large unexplained sum. The court was sure that substituting the lower figure would have made no difference to the verdict.
7. The 15-year sentence was not excessive. The applicant was a substantial link between importation and street supply, and the money passing through his hands indicated the scale of the enterprise. A lower-level street supplier was not a proper comparator, and the local nature of the operation did not reduce its seriousness.

• Court of Appeal (Criminal Division) — renewed applications for permission to appeal conviction and sentence were refused: [2010] EWCA Crim 873.
• Luton Crown Court — the applicant was convicted on two Class A drug-supply counts and sentenced to 15 years’ imprisonment, with concurrent sentences for money-laundering offences.