Midmore, R v

A communication is hearsay under Criminal Justice Act 2003 only if it is adduced to prove a matter stated and the maker intended, at least in part, to cause another person to believe that matter or act upon it as true. The statutory code must be applied without reference to the former common-law rules.

A statement may impliedly represent the maker’s present intention. It is nevertheless not hearsay where its purpose was not to induce belief or action on that basis. A non-hearsay communication is admissible if relevant and not excluded in the exercise of the court’s discretion.

The appellant and his half-brother were charged with causing grievous bodily harm with intent after sulphuric acid was thrown over the complainant’s face. The half-brother pleaded guilty. The appellant was convicted at Southampton Crown Court and received an extended sentence of 20 years.

The prosecution alleged that the two men acted pursuant to a joint plan. It relied, among other evidence, on a WhatsApp message sent by the half-brother after they had bought sulphuric acid. The message described the product as a “face melter”. The appellant contended that the message was inadmissible hearsay.

On appeal against conviction, the central issue was whether the message was hearsay within the Criminal Justice Act 2003. The appellant also sought leave to appeal his sentence.

1. The appeal against conviction was dismissed. Leave to appeal against sentence was refused. The court held that the WhatsApp message was admissible and that the conviction was safe.
2. The Criminal Justice Act 2003 provides a self-contained statutory code for hearsay. The court must apply that code without recourse to the former common-law rules.
3. Applying the three-stage approach in R v Twist [2011] 2 Cr App R 17, the court must identify the fact sought to be proved, decide whether the communication states or represents that fact, and then determine whether a purpose of its maker was to cause another person to believe or act upon it.
4. A statement of current intention can be a representation of fact for section 115(2). The message was, on balance, an implied representation that the half-brother intended the acid to be used to cause harm, rather than a mere comment from which that intention could be inferred.
5. However, the message was not sent to cause the recipient to believe that the product would melt a face, or to believe or act on the half-brother’s intention to use it in that way. It therefore failed section 115(3) and was not hearsay. It was plainly relevant, and there was no basis to exclude it under section 78 of the Police and Criminal Evidence Act 1984.
6. There was ample additional evidence supporting the prosecution case. The conviction was therefore entirely safe.

1. Court of Appeal (Criminal Division): The appeal against conviction was dismissed in [2017] EWCA Crim 533. The court refused leave to appeal against sentence.
2. Crown Court at Southampton: The appellant was convicted on 12 April 2016 of causing grievous bodily harm with intent and, on 21 June 2016, was sentenced to an extended sentence of 20 years, comprising 15 years’ custody and a five-year extension period.