R v AWQ

A terminating ruling is unreasonable where the prosecution evidence, viewed as a whole, permits a properly directed jury to convict on rational inferences. The absence of direct evidence of a drug debt or the content of communications does not prevent a jury from drawing an inference from the proved relationship, contacts and subsequent conduct.

Under section 114(1)(d) of the Criminal Justice Act 2003, the interests-of-justice assessment must address the realistic prospect of obtaining live evidence and the context and reliability of the hearsay statement. A theoretical ability to summon a witness who is likely to claim privilege against self-incrimination does not justify excluding otherwise probative evidence.

Time for a prosecution appeal may be extended where service failed through an official-address error, the delay was slight and no prejudice resulted.

AWQ was charged with participating in the activities of an organised crime group, contrary to section 45(1) of the Serious Crime Act 2015. The Crown alleged that he assisted his brother, the alleged head of a cocaine-supply group, to enforce drug debts owed by two wholesale customers.

During the Crown case, the judge refused to admit text messages between one debtor and his sister as hearsay. At the close of the Crown case, the judge upheld AWQ’s submission of no case to answer. The Crown applied for leave to appeal both rulings under the Criminal Justice Act 2003. The central questions were whether the circumstantial evidence could support the proposed inferences and whether the hearsay messages should have been admitted in the interests of justice.

1. Leave was granted and the Crown’s appeal succeeded. The court extended time for service of the Appeal Notice. Service upon the Registrar had failed because a government website displayed a defunct email address. The respondent had received the notice, the delay was minimal, and no prejudice had resulted. The respondent’s response time was also extended.

2. The no-case ruling was reversed. The judge had not grappled with the prosecution evidence. The respondent’s brother, JL and JB were involved in the cocaine conspiracy. The repeated and closely sequenced contacts, followed by visits to the brother and, in one episode, the retention of a vehicle, permitted a jury to infer that drug debts were being pursued and that AWQ was assisting that process.

   The absence of direct evidence identifying JL’s debt, and the absence of the calls’ contents, did not make those inferences impermissible. The suggested coincidence was capable of being rejected as fanciful. The interval between AWQ’s involvement and the retention of the vehicle, and his legitimate reason to be in the relevant area, were matters for jury argument rather than grounds for withdrawing the case. A properly directed jury could properly convict, and no other conclusion was reasonable.

3. The hearsay ruling was reversed. The judge had wrongly refused the sister’s messages under section 114(1)(d) of the Criminal Justice Act 2003. In the established context, the reference to “brothers” could only sensibly refer to AWQ and his brother. It was unrealistic to suppose that summoning the sister would secure useful live evidence, since she would be warned about self-incrimination and was highly unlikely to answer questions about the messages.

   The messages formed part of an unguarded exchange. There was no reason to suppose that the sister was falsely accusing JB of drug involvement or falsely describing her delivery of money. Any issue as to her general reliability could be investigated through disclosure and tested by the defence.

4. Order. Both rulings were rulings which it was not reasonable for the judge to make. A fresh trial was ordered at a venue to be determined by the relevant Presiding Judge.

• Court of Appeal (Criminal Division) — In [2024] EWCA Crim 898, the court granted the Crown leave to appeal, extended time for the Appeal Notice, reversed the hearsay and no-case rulings, and ordered a fresh trial.
• Crown Court — During AWQ’s trial, the judge refused to admit specified hearsay text messages and, on 9 May 2024, upheld a submission of no case to answer. AWQ’s case was severed while the trial of the conspiracy count continued.