Twist & Ors v R

Factual and Procedural Background

This opinion addresses four criminal cases heard together, all involving the application of the hearsay rules under the Criminal Justice Act 2003 to text message communications related to the defendants. Three cases concerned incoming messages received by the defendants, involving charges of drug supply and robbery, while the fourth case concerned outgoing messages sent by the defendant in a rape trial. The cases examine whether such communications constitute hearsay evidence and the criteria for their admissibility under the Act.

Legal Issues Presented

1. How do the hearsay provisions of the Criminal Justice Act 2003 apply to communications made to or by a defendant, particularly text messages?
2. What constitutes a "statement" and "matter stated" under sections 114 and 115 of the Act in the context of such communications?
3. Does the purpose of the maker of the communication to cause belief or action on the matter stated determine whether the communication is hearsay?
4. Are incoming text messages requests or comments for drug supply hearsay evidence when relied upon to prove the defendant’s involvement in drug dealing?
5. Are outgoing text messages sent by a defendant containing alleged confessions or admissions hearsay evidence?
6. What is the proper approach to distinguishing hearsay from non-hearsay evidence in communications?

Arguments of the Parties

Appellant's Arguments

• In the drug supply cases, the defense contended that incoming text messages were hearsay and should be inadmissible, as they were relied upon to prove the defendant’s involvement in drug dealing.
• In the robbery case, the defendants sought to exclude a message referring to possession of a gun as hearsay evidence.
• In the rape case, the defense argued that the outgoing messages should be excluded under sections 76 and 78 of the Police and Criminal Evidence Act 1984, contending unreliability and unfairness due to the absence of the complainant’s reciprocal messages.
• In one drug case, it was argued that the distinction between express and non-express representations in messages was relevant to hearsay analysis under earlier case law.

Respondent's Arguments

• The Crown argued that incoming text messages were not hearsay because the senders did not have the purpose of causing the defendant to believe the matters stated, but rather to induce action (e.g., supply of drugs).
• In the robbery case, the Crown maintained the message was not hearsay as it reflected a common understanding between sender and recipient rather than an assertion intended to be believed.
• In the rape case, the Crown contended the defendant’s outgoing messages were admissions against interest and thus admissible as exceptions to hearsay rules.
• The Crown relied on the Criminal Justice Act 2003’s definitions and principles to argue that many communications do not constitute hearsay if the maker did not intend to cause belief in the matter stated.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
DPP v Kearley [1992] 2 AC 228	Common law hearsay rule applied to implied assertions in telephone calls.	The Act reversed the Kearley rule, limiting hearsay to statements where the maker intended to cause belief or action.
R v Singh [2006] EWCA Crim 660	Confirmed abolition of common law hearsay except as preserved; considered application of hearsay rules to telephone entries.	Supported interpretation that communications without intent to cause belief are not hearsay.
R v Y [2008] 1 Cr App R 34	Consideration of interests of justice discretion for admitting hearsay evidence.	Referenced for careful application of discretion to admit hearsay evidence.
R v Z [2009] EWCA Crim 20	Further guidance on discretion to admit hearsay evidence.	Supported requirement for reliability and opportunity to test hearsay evidence.
R v Mayers [2008] EWCA Crim 2989	Requirement for identification of fearful witness in hearsay evidence; limitations on anonymous hearsay.	Noted limitations on anonymous hearsay and relevance to interests of justice.
R v Leonard [2009] EWCA Crim 1251	Incoming text messages as hearsay when proving quality/quantity of drugs supplied.	Messages held to be hearsay based on Crown’s purpose to prove matters stated.
R v Chrysostomou [2010] EWCA Crim 1403	Distinction between hearsay and non-hearsay based on purpose of communication maker.	Messages held not hearsay when used to prove relationship rather than contents.
R v MK [2007] EWCA Crim 3150	Telephone call evidence not hearsay where no representation of fact intended to be believed.	Supported approach that purpose to induce belief is necessary for hearsay.
R v Elliott [2010] EWCA Crim 2378	Letters not hearsay where purpose was not to cause belief but reflected common knowledge.	Confirmed that shared understanding negates hearsay classification.
Fox [2010] EWCA Crim 1280	Anonymous 999 call inadmissible hearsay evidence for truth of reported facts.	Illustrated limits of admissibility of anonymous hearsay under the Act.
Andrews [1987] AC 281	Exception for spontaneous statements preserved under section 118.	Referenced as a preserved rule allowing some hearsay evidence.

Court's Reasoning and Analysis

The court analysed the hearsay provisions of the Criminal Justice Act 2003, focusing on sections 114 and 115. It emphasised that hearsay applies only where the maker of a statement intended to cause the recipient to believe or act upon the truth of the matter stated. The court rejected the common law concept of "implied assertion," noting the Act’s framers deliberately avoided this complex notion. Instead, the Act defines "statement" and "matter stated" by reference to the purpose of the maker of the communication.

The court explained that many communications, such as requests or messages reflecting common knowledge between parties, do not constitute hearsay because the sender does not intend to induce belief in the matter stated. For example, drug supply requests by text messages are often not hearsay because the sender's purpose is to induce action (supply), not belief in the defendant’s status as a dealer.

The court applied these principles case-by-case: in the drug cases (Twist and Boothman), incoming messages were not hearsay because the senders did not intend to cause belief in the defendant’s drug dealing, but rather to induce supply. In the robbery case (Tomlinson and Kelly), a message referring to a gun was not hearsay because the sender and recipient shared a common understanding, and the sender did not intend to cause belief in possession. In the rape case (Lowe), outgoing messages from the defendant were not hearsay because they were admissions by the defendant himself, admissible as exceptions to the hearsay rule.

The court also noted that even if evidence is not hearsay, it must still be relevant and properly admissible. The weight and reliability of such evidence remain matters for the jury. The court acknowledged the discretion to admit hearsay evidence in the interests of justice but stressed it is not routine and requires careful consideration of reliability and opportunity for testing.

Holding and Implications

The court granted leave to appeal in all four cases but ultimately DISMISSED the appeals against conviction in Twist, Boothman, Tomlinson, and Kelly. It held that the relevant text messages were not hearsay evidence under the Criminal Justice Act 2003 because the senders did not intend to cause belief or action based on the truth of the matters stated. In Lowe, the appeal against conviction was also dismissed, but the court allowed the appeal against sentence, quashing the original sentence and substituting a sentence consistent with the defendant’s age and the correct statutory provision.

The decision clarifies the application of the Criminal Justice Act 2003 hearsay rules to electronic communications, emphasizing the importance of the maker's purpose. It rejects reliance on implied assertions and confirms that many communications commonly encountered in criminal cases, such as text messages, may be admissible as non-hearsay evidence if they do not meet the statutory definition of hearsay. The ruling provides guidance for courts on distinguishing hearsay from non-hearsay and underscores the need for careful jury directions regarding the weight of such evidence.