Doyle, R. v

Where a communication is relied on to prove the truth of its contents, the court must identify the relevant matter to be proved and ask whether the maker intended the recipient to believe or act upon that matter. If so, the communication is hearsay.

Where the recipient knows the sender, admissibility may be determined under the interests-of-justice gateway in Criminal Justice Act 2003, section 114. The jury should receive an appropriately modified hearsay direction about such evidence. A failure to give that direction does not render a conviction unsafe where the evidence was properly admitted and the remaining evidence supports the verdict.

The appellant was convicted at Liverpool Crown Court of possessing heroin with intent to supply. His fingerprint was found on packaging containing substantial quantities of heroin. He had also pleaded guilty to cannabis supply and production offences, and text messages about allegedly opened and retaped cannabis packages were recovered from his telephone.

The prosecution relied on the messages and the cannabis offending as evidence relevant to drug dealing. The Recorder admitted the evidence. On appeal, the appellant did not challenge the admission of the bad-character evidence as such. He contended that the messages were hearsay, that the jury had not received a proper direction on their use, and that the resulting conviction was unsafe.

1. Appeal dismissed. The text messages were hearsay. Applying R v Twist [2011] EWCA Crim 1143, the relevant matter relied on by the prosecution was that the appellant had interfered with cannabis packaging. The sender intended him to believe and react to that allegation, and the prosecution relied on its truth rather than merely on the fact that a complaint had been made.
2. The appellant knew who had sent the messages. The admissibility question was therefore whether their admission was in the interests of justice under section 114(1)(d) of the Criminal Justice Act 2003. Having regard to the statutory criteria, the court held that the Recorder had rightly admitted them.
3. The Recorder should nevertheless have given a conventional, modified hearsay direction. The jury needed appropriate caution when assessing the contents of messages from a sender who had not given evidence. That omission was an error in the summing-up.
4. The error did not make the conviction unsafe. The messages were properly before the jury. The prosecution also relied on the appellant's fingerprint on the heroin packaging, including its position consistent with handling during packaging, and on properly admitted bad-character evidence concerning the cannabis offences. In those circumstances, the deficiencies in the hearsay direction did not undermine the safety of the verdict.

• Court of Appeal (Criminal Division). By [2018] EWCA Crim 2198, the court dismissed the appeal against conviction.
• Crown Court at Liverpool. On 4 November 2016, following a jury trial before Recorder Turner, the appellant was convicted of possessing heroin with intent to supply and sentenced to six years' imprisonment on that count.