SMS Text Messages - Hearsay Evidence
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C2247 / R v Leonard 2009
YEAR OF CASE: 2009
CITATION: [2009] EWCA Crim 1251
COURT: Court of Appeal
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SUMMARY:
Large quantities of various types of Class A drugs and cash were found in L's bedsit and on his person during a search by police.
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At trial for possession of class A drugs with intent to supply, the prosecution argued that L was a street dealer and those drugs found had been his 'stock pile'. The defence argued that the drugs were for his personal use and that he was not a dealer but he had the large amount that was found because he intended to share them with his girlfriend.
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The prosecution wished to admit two text messages as evidence to support its case. Both were from different people, one to compliment the 'gear', the other to complain about it. The defence argued that the text messages were inadmissible hearsay. The judge rejected the argument and admitted them as evidence of bad character as opposed to hearsay.
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L was convicted and appealed arguing that the judge had been wrong in law.
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Held:
Appeal dismissed. Convictions upheld. The text messages were hearsay evidence and not evidence of bad character. They fell in the scope of section 114 and 115 of the Criminal Justice Act 2003 and had to for the following reasons;
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(i) they had not been made in oral evidence,
(ii) they were statements of fact or opinion within the meaning of section 115(2) of the 2003 Act,
(iii) the reason for the evidence being admitted was to establish the matters stated in the texts to try to prove that L had supplied the drugs to the senders of the texts, and
(iv) each message was designed to make the person in receipt of them believe the matters stated in them as required by section 115(3).
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Once it is established that the texts are hearsay they then fall to be analysed as to whether they meet the statutory requirements regarding admission. The only basis upon which they could be admitted would be under section 114(1)(d); that it was in the interests of justice to do so. To ascertain whether that is the case, regard must then be had to the 9 propositions in section 114(2) and as they fail to meet some or all of those criteria, they may be hearsay, but they are inadmissible hearsay evidence. Despite this there was still a very strong case against L without them and their admission had not tainted the rest of the trial.
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Note:
In this instance the senders of the text messages were never identified. If the authors can be identified then the text messages may become admissible where the authors can be potential witnesses. Thus allowing the evidence to be tested by way of cross-examination with any requisite measures in place, for example special measures under the Youth Justice and Criminal Evidence Act 1999 to alleviate such issues as fear.
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