R v Twist & Others [2011] EWCA Crim 1143

An important and elucidating re-statement of the hearsay principles included in the Criminal Justice Act 2003 with particular reference to text messages. The Court reminded the lower courts that implied assertions in communications which are in effect the common knowledge or basis of the conversations will not be hearsay by virtue of section 115 of the CJA 2003 because neither party made the statements with an intention to cause the other party to believe or act upon the implied statement. A question is unlikely to contain a statement.

1. 17 Generally, therefore, it is likely to be helpful to approach the question whether the hearsay rules apply in this way:
i) identify what relevant fact (matter) it is sought to prove;
ii) ask whether there is a statement of that matter in the communication. If no, then no question of hearsay arises (whatever other matters may be contained in the communication);
iii) If yes, ask whether it was one of the purposes (not necessarily the only or dominant purpose) of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true ? If yes, it is hearsay. If no, it is not.

2. 20 It is also important to remember that deciding whether one or more communications is or is not hearsay may not be the end of the issue of admissibility. Even if the communications are not relied upon for their hearsay content, as that is defined by the Act, that does not relieve the court of applying the usual tests for admissibility. The fact which it is sought to prove must be a relevant fact; otherwise the evidence is inadmissible on grounds of irrelevance. And secondly, it is necessary that that fact is indeed a legitimate conclusion to be drawn from the evidence. If, for example, the only thing which the communications are capable of proving is that the senders held an opinion that x was a fact, that would not generally be admissible as proof of fact x, though it would be admissible, if the issue were whether they believed x, to show that they did: see Kearley where this point was plainly made. If, on the other hand, it is a proper conclusion to draw from the evidence of a communication, or of a number of similar communications, not only that the sender held an opinion but also that there was an existing relationship between him and the recipient, for example of buyer and supplier, or otherwise that a relevant background fact plainly existed, then the evidence, assuming it is not within the Act’s concept of hearsay, is admissible on that issue. What the evidence is capable of proving will depend on the facts of each case. It will be necessary, in some cases, for judges to focus the jury’s attention carefully on what it is that the evidence is and is not capable of proving.

21 Further, to say that a communication is not hearsay and that it is admissible evidence tending to prove a fact, is not to say that it is unanswerable or conclusive. To take an example, a single message requesting the supply of drugs, or for that matter a gun, might have been misdirected by mistake, or might be based on a mistaken belief that the recipient is likely to be able to supply what is asked for. No doubt, the more similar messages there are, sent independently of one another, the more likely it is that they do prove the fact alleged, but that will depend on what possible alternative explanations there might be for the evidence. Whether a communication which is not hearsay does or does not prove the fact alleged is always a matter of weight for the jury.
23 The court was ... considering a ... note for himself that a mobile telephone user makes when he enters in the memory of his telephone the number of a contact. This was in similar case to a private diary entry which is written for oneself and no-one else; the maker of the entry has no purpose to cause anyone else to believe or act upon the truth of the entry – it is entirely for his own use and for that reason is not hearsay. It was therefore admissible evidence to tend to prove that the telephone number in question was used by the defendant, the person to whom the entry was attributed.