Twist & Ors v R.

Under Criminal Justice Act 2003 ss 114 and 115, a communication is hearsay only when it is adduced to prove a relevant matter stated and the maker had a purpose of causing another to believe that matter, or act on it as true. A communication may be evidence from which a fact is inferred without being hearsay evidence of that fact.

The court should identify the fact sought to be proved, determine whether the communication states it, and then determine the maker’s relevant purpose. Requests or orders commonly reveal a shared relationship, such as buyer and supplier, without asserting that relationship for the recipient to accept as true. Their admissibility and evidential weight remain subject to ordinary relevance and fairness principles.

Four conjoined appeals against conviction concerned text messages under the hearsay provisions of the Criminal Justice Act 2003. In three cases, the prosecution relied on incoming messages as evidence of drug supply or possession of a gun. In the fourth, it relied on the defendant’s outgoing messages as admissions relevant to rape.

The trial judges admitted the messages, principally as non-hearsay and in some instances alternatively in the interests of justice. The defendants challenged those rulings. Separate sentencing applications arose for Twist, Tomlinson and Kelly, and Lowe.

The central issue was when communications made to, or by, a defendant are hearsay under ss 114 and 115 of the 2003 Act.

1. The court dismissed all four appeals against conviction. It granted leave in Twist, Boothman, Tomlinson and Kelly, but dismissed their conviction appeals. Lowe’s conviction appeal was dismissed.

2. Sections 114 and 115 of the Criminal Justice Act 2003 require attention to the particular relevant fact for which the evidence is tendered. A communication is hearsay only if it is adduced as evidence of a matter stated and its maker’s purpose was to cause another person to believe that matter, or act upon it as true. The statutory approach displaced the former common-law treatment of implied assertions.

3. The appropriate sequence is to identify the fact sought to be proved; ask whether the communication states that fact; and, if it does, ask whether the maker had the statutory purpose. A wish that the recipient act on a request or order is not a purpose that the recipient act on the truth of a matter stated. The court should avoid the concept of an implied assertion.

4. The incoming drug requests and messages in Twist and Boothman were admissible because they revealed existing buyer-supplier relationships and were not made to persuade the defendants that they supplied drugs. The request for a gun in Tomlinson and Kelly similarly supported the inference that the defendants possessed a gun. The jury had to assess possible mistake and the weight of the evidence.

5. Lowe’s outgoing messages were not hearsay on the statutory analysis. In any event, if they were hearsay, they were admissible as the defendant’s own admissions or confessions under ss 114(1)(b) and 118. Neither s 76 nor s 78 of the Police and Criminal Evidence Act 1984 required exclusion.

6. The court refused leave to appeal Twist’s and Tomlinson and Kelly’s sentences. It allowed Lowe’s sentence appeal solely to replace the legally unavailable young-offender-institution sentence with four and a half years’ detention for a grave crime under s 91 of the Powers of Criminal Courts (Sentencing) Act 2000.

• Court of Appeal (Criminal Division): The court dismissed the conviction appeals, refused the sentence applications of Twist, Tomlinson and Kelly, and allowed Lowe’s sentence appeal only to substitute detention under Powers of Criminal Courts (Sentencing) Act 2000 s 91.
• Crown Court: Convictions and sentences arose from Wolverhampton, Harrow, Lincoln and Birmingham Crown Courts before Judge Walsh, Judge Morris and Judge Tomlinson. No lower-court citation is stated.