Arowolo v Department for Work and Pensions

The best evidence rule does not require production of a specimen document where the original document completed by the defendant is unavailable. Secondary evidence may be used if the court is satisfied that the original existed, is unavailable, and could not have been produced without difficulty. There are no degrees of secondary evidence.

Whether a sufficient search was made is a matter for the trial court, assessed in the circumstances of the case. Hearsay contained in an interview may include questions as well as answers where the questions give meaning to the answers. Hearsay may also be admitted by agreement without formal words, including where the circumstances support an inference of agreement.

The claimant was convicted by Thames Magistrates’ Court of knowingly making a false statement for the purpose of obtaining benefit, contrary to section 112 of the Social Security Administration Act 1992. The prosecution alleged that he had omitted business bank accounts from his jobseeker’s allowance claim.

The original claim form could not be found. The magistrates relied on evidence from a fraud investigator’s interview with the claimant, including questions describing the information sought on the form. On a case stated appeal, the central issue was whether the conviction could stand without the original form and whether the interview evidence was admissible.

1. Appeal dismissed. The magistrates were entitled to convict without seeing the original jobseeker’s allowance claim form.
2. The claimant’s argument that forms of the same generation were duplicate originals was rejected. There was only one original of the form completed by the claimant. Once secondary evidence was admissible in principle, the prosecution was not required to select the most effective or ideal alternative.
3. The magistrates were entitled to assess whether the prosecution could have obtained the original form without difficulty. Their conclusion that it could not be found was supported by evidence and was not perverse. The case was materially different from Brown v Secretary of State for Social Security, where there was no evidence explaining the absence of the originals.
4. The modern best evidence rule was stated by reference to R v Governor of Pentonville Prison ex parte Osman. Its remaining application concerns an original document available to a party in court, or capable of being brought to court without difficulty, where refusal to produce it is unexplained.
5. The interview evidence was admissible. Questions and answers ordinarily formed part of the same hearsay evidence because answers could be meaningless without the questions. In addition, the magistrates could infer agreement to admission of the hearsay from the absence of objection by the represented claimant, under section 114(1)(c) of the Criminal Justice Act 2003.
6. It remained for the magistrates to decide whether the secondary evidence proved the offence to the criminal standard. They found that it did. The decision did not mean that other magistrates would necessarily reach the same factual conclusion.

• Thames Magistrates’ Court: convicted the claimant on 1 November 2011 of knowingly making a false statement for the purpose of obtaining benefit.
• High Court (Administrative Court): on a case stated appeal, dismissed the appeal and upheld the magistrates’ decision.