Director of Public Prosecutions v Leigh

Evidence of the absence of an entry in a business record is not hearsay merely because the court may infer that the recorded event did not occur. Hearsay concerns a statement relied on as evidence of a matter stated, including a representation made to cause another person to believe that matter. An omission from a record is not, without more, such a representation. The prosecution may therefore prove non-compliance through primary evidence from a suitably qualified witness who can explain the records and the significance of the omission. The reliability of the record and the care taken in checking it affect the weight and adequacy of the evidence, not its hearsay character.

The Director of Public Prosecutions appealed by way of case stated from the decision of a district judge in the Watford Magistrates’ Court. The judge dismissed proceedings alleging that the defendant had failed on two occasions to provide information required under section 172 of the Road Traffic Act 1988. She held that evidence from a police administrator about the absence of replies in the relevant records was hearsay and could not be admitted without the required application.

The issue before the Divisional Court was whether the witness’s evidence, based on checking business records and identifying the absence of compliant replies, was hearsay evidence under the Criminal Justice Act 2003.

1. Appeal allowed. The district judge was wrong to hold that the evidence of the police administrator was hearsay. The case was remitted to the magistrates’ court because other issues raised by the defendant had not been determined.
2. Under sections 114(1) and 115 of the Criminal Justice Act 2003, a statement is hearsay only when it is relied on as evidence of a matter stated. A matter stated requires a representation made, at least in part, to cause another person to believe the matter or act on it.
3. The records were not relied on to prove the truth of any statement contained in them. Their significance was that they contained no entry showing that a reply had been received. The failure to make an entry was not a representation made for the purpose identified in section 115(3). The inference that no reply was given therefore did not convert the evidence into hearsay.
4. The witness was an appropriate person to explain the purpose and operation of the records and to give evidence about their contents and omissions. The evidence was primary evidence. The reliability of the record and the care taken in checking it were matters affecting whether the inference could properly be drawn and whether the prosecution had sufficient evidence, rather than matters determining admissibility as hearsay.
5. The conclusion was the same under the pre-existing law. R v Patel [1981] 73 Cr App R 117 and R v Shone [1982] 76 Cr App R supported the view that an appropriate person explaining records and the absence of an entry was not giving hearsay evidence.
6. The hearing could continue before the same district judge. Costs were awarded to the claimant in the sum of £1,875.

• High Court (Administrative Court): allowed the appeal by way of case stated from the Watford Magistrates’ Court and remitted the matter for continuation of the hearing.
• Watford Magistrates’ Court: the district judge held that the evidence concerning the absence of replies was hearsay and dismissed the case for no case to answer.