England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		23rd February 2006

1. THE VICE PRESIDENT: Rafferty J is unable to be here today, but she agrees with the terms of the judgment which we are about to give. McCombe J is present in relation to any ancillary matters which may arise.
2. On 6th July 2005 at Preston Crown Court, following a trial before His Honour Judge Robert Brown which had started in June, the appellant was convicted of conspiracy to kidnap and sentenced to 8 years' imprisonment. He appeals against conviction by leave of the Single Judge.
3. The appellant had previously been jointly indicted with seven others Kaushall, Lattlay-Fottfoy, Arfan Javed, Chadwick, Mason, Mohammed Imran and Singh-Landa. The appellant did not stand trial with the others because of an incident between him and Chadwick, who was represented by the same solicitors who withdrew from representing the appellant, leaving him unrepresented. Lattlay-Fottfoy was acquitted and the others convicted. Chadwick, Mason and Singh-Landa had applications before this Court which were dealt with on 14th February. In this second trial the appellant was jointly indicted with Kasir Nadim, who had been arrested too late to be joined in the first trial. He was acquitted.
4. The victim of the offence, Alex Cunningham, was the owner of a shop in Burnley and lived with Sheila Murtagh and their three children in Briercliffe. At 7.00 pm on 17th June 2003 he was outside his house when three vehicles drove up. He was kidnapped by six white and two Asian men and taken to premises at an unknown location. The kidnappers contacted his family and friends using his mobile telephone and demanded money and jewellery. Sheila Murtagh received a ransom demand for half a million pounds. Michael Connelly, who had borrowed £10,000 from Mr Cunningham previously, received a call from someone using Mr Cunningham's mobile and demanding repayment. He went to Mr Cunningham's shop and handed over the money to 2 men. Two friends of the victim were given instructions to empty the safe at his shop, and at a meeting point in Stretford, they handed over £5,000 in cash and £80,000 worth of jewellery to men in a Volkswagen car. When Sheila Murtagh returned home she found that £4,000 of her money had been taken. Police were called and hostage experts became involved. Eventually Mr Cunningham was left at a telephone kiosk wearing nothing but shorts. He telephoned 999 and was found by the police. He had bruising to his head and chest, stab wounds, blisters on his legs and feet from scalding and abrasions from being dragged over a hard surface. Eight men were arrested. A crucial part of the evidence was mobile telephone analysis.
5. The prosecution case against the appellant was that he was the user, at the time of the kidnapping, of mobile telephones ending in numbers 718 and 548, which he used to make and receive many calls to and from his co-conspirators on and around the date of the kidnapping. The memories of the telephones of co-accused contained these mobile numbers and Chadwick's telephone also contained the appellant's land line number for his home address, 73 Astbury Street. Kaushall's mobile phone had in its memory "Alex" against the 548 number and an envelope containing the same information was recovered from Kaushall's home. The appellant admitted that two other phones, 817 and 588, were his and it was the prosecution case that 718 and 548 were his also. There were repeated calls from all four of these telephones in June, October and November 2003 and January 2004 to Chadwick. The Crown said it was open to the jury to find that it was the same person calling Chadwick in January as had called him in June at the time of the kidnapping. There were also calls between 548 and 718 and phones belonging to Kaushall, Arfan Javed and Singh-Landa on 17th and 18th June. The spider plan before the jury showed that, between 5.00pm on 17th and 7am on 18th there were approximately 200 calls between, on the one hand, 718 and 548 and, on the other, the phones of the four conspirators we have referred to and phone number 998 which admittedly belonged to another conspirator. Furthermore, call mapping suggested that the person using 718 and 548 was in the area of Mr Cunningham's home at the time he was kidnapped. The prosecution also relied on a call made from the appellant's mother's address to phone 718 during the period of the kidnapping.
6. The appellant's defence was alibi. He said he was at his mother's home at the time of the kidnapping and not using either 718 or 548. The owner of 718 was a plasterer known to him as Alex who was helping Chadwick, a joiner, in renovating the appellant's house at 73 Astbury Road. The defence accepted that it was proper to infer that the same person, called Alex or Al, was using 718 and 548 during the relevant period and was a party to the kidnapping.
7. The issue for the jury was whether they were sure the appellant was using 718 and 548 during the kidnapping and was therefore a party to it.
8. During the trial the judge gave a number of rulings which are challenged on appeal to this Court. He ruled that the bad character provisions of the Criminal Justice Act 2003 applied to the appellant's trial, notwithstanding that the original trial took place prior to 15th December 2004 when those provisions came into force. The application of section 101 in relation to bad character would not be unfair because its possible application had been pointed out to the appellant's representatives at the first trial and they were now acting for him again following their earlier withdrawal. He ruled that, in order to show that the appellant was a party to the conspiracy, evidence was admissible of the entries in the memories of mobile phones belonging to other conspirators and of the envelope found in Kaushall's home. A similar entry in phone 998, which the Crown said belonged to Lattlay-Fottfoy (who had been acquitted), but which the defence admitted belonged to a co-conspirator, was also admissible to show that the appellant was party to the conspiracy. In particular, the judge ruled that number 998 was properly included in the schedule of six common numbers relied on by the Crown to show that the appellant was the person using 718 and 548 during the conspiracy. 718 and 548 were never recovered. But, in October 2003 the other telephones which the appellant admitted were his had contact with 998. In addition to the evidence already referred to, a neighbour of the appellant, Joanna Yates, had given evidence that, although she could not remember the appellant's mobile number, there were calls between March and May 2003 between her telephone and phone number 718. In interview the appellant failed to answer questions relating to 718 and 548 and, neither in interview nor in his defence statement, did he suggest that there was another Alex apart from himself. The defence submitted, at the close of the prosecution case, that there was no case to answer. The judge rejected this submission. In evidence before the jury, the appellant claimed that 718 belonged to Alex, the plasterer, and the call made from his mother's home to 718 was made by him to Alex, the plasterer. Alex, the plasterer, did not give evidence.
9. On behalf of the appellant, Mr Csoka advanced five grounds of appeal. First, he submitted that, despite this Court's judgment in R v Bradley [2005] 1 Cr App R 397, the provisions of the Criminal Justice Act 2003, in relation to the admissibility of evidence of hearsay and bad character, did not apply to this re-trial which started in June 2005 because the initial trial began on 8th November 2004, ie before 15th December 2004. He sought to distinguish paragraph 33(iii) in Bradley, where reference is made to cases remitted for retrial, on the basis that the passage is obiter and that, in such a case, a new indictment has to be preferred whereas, in the instant case, the appellant was being re-tried on the original pre-December 2004 indictment.
10. We disagree. The reference in Bradley to a re-trial ordered by this Court was merely an example of a difficulty which could arise if the legislation were construed as the appellant there contended. The ratio of the decision was that "criminal proceedings" in section 112(1) and 141 mean a trial where issues of fact are determined, rather than the whole process following charging. The ratio is not limited in the way in which Mr Csoka seeks to suggest. The principles of Bradley apply to all trials starting after December 2004, whatever the date of the indictment. (see paragraph 34 of the judgment; see also R v Benguit [2005] EWCA Crim 1953, paragraph 31 and R v H [2005] EWCA Crim 2083 paragraph 7, which Mr Csoka accepted are persuasive against his submission).
11. Secondly, he submitted that, although it was undoubtedly Parliament's intention to reverse the decision of the House of Lords about hearsay in R v Kearley 95 Cr App R 88, section 114 and 115 fail to achieve that object.
12. The sections provide as follows:

"114 Admissibility of hearsay evidence

(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if-

(a) any provision of this Chapter or any other statutory provision makes it admissible,

(b) any rule of law preserved by section 118 makes it admissible,

(c) all parties to the proceedings agree to it being admissible, or

(d) the court is satisfied that it is in the interests of justice for it to be admissible."

"115 Statements and matters stated

(1) In this chapter references to a statement or to a matter stated are to be read as follows.

(2) A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form.

(3) A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been

(a) to cause another person to believe the matter, or

(b) to cause another person to act or a machine to operate on the basis that the matter is as stated."

13. Mr Csoka's argument was based on the adoption of an article in Archbold News Issue 5 (May 23rd 2005) by Professor Stephen Uglow. The argument is this. Section 114 does not abolish the common law rule against the admissibility of hearsay which, albeit amended, remains. Section 114 restates but does not replace the common law rule of exclusion. It does not say there cannot be a hearsay statement outside the statutory parameters: there can be out-of-court statements which are still hearsay. Under Kearley an unintentional implied assertion was excluded as hearsay. The object of section 115(3) is to draw a line between intentional implied assertions still caught by the hearsay rule and unintentional implied assertions no longer treated as hearsay. Accordingly, only hearsay statements within section 114 are admissible. Section 115(3) means that section 114 does not apply to statements unless the purpose of their maker was to cause belief in the hearer; an unintentional implied assertion remains hearsay, because this is what Kearley said, and is now always inadmissible. In the present case, the entries in the telephone memories and on the envelope were unintentional implied assertions outwith section 115(3) and therefore inadmissible.
14. The interrelationship between sections 114 and 115 is deeply obscure. But, in our judgment, as Miss Blackwell for the prosecution contends, the answer to Mr Csoka's submission is provided by the editor of Archbold 2006 Edtn paragraph 11-14. Contrary to Professor Uglow's premise, the common law rule against the admissibility of hearsay is abolished by the clear express terms to that effect of section 118, to which Professor Uglow does not refer. When sections 114 and 118 are read together they, in our judgment, abolish the common law hearsay rules (save those which are expressly preserved) and create instead a new rule against hearsay which does not extend to implied assertions. What was said by the callers in Kearley would now be admissible as direct evidence of the fact that there was a ready market for the supply of drugs from the premises, from which could be inferred an intention by an occupier to supply drugs. The view of the majority in Kearley, in relation to hearsay, has been set aside by the Act.
15. So, in the present case, the telephone entries are not a matter stated within section 115. They are implied assertions which are admissible because they are no longer hearsay. Furthermore they are also admissible under section 118(1(vii), as statements by an admitted co-conspirator against another party to the enterprise (see also Cross and Tapper on Evidence 10th Ed. p 612 note 295, approved in R v Jones [1997] Cr App R 119 at 129). A third possible route to admissibility is provided by section 114(2)(d).
16. It follows that the judge was right to admit this evidence against the appellant and ground 2 fails.
17. Mr Csoka's third submission was that the judge was wrong to rule at the close of the prosecution case that there was a case to answer. It was conceded that 718 and 548 were being used by a conspirator and that the user was called Alex. Chadwick's phone memory contained entries of both 718 and the appellant's land line number and both were attributed to "Alex". Mr Csoka conceded that, in the prosecution case, there was no evidence linking Alex, the plasterer, to the appellant's telephones. There was at that stage, in our judgment, no candidate as user of 718 or 548 other than the appellant. The judge was therefore right to rule that there was a case to answer.
18. The fourth ground is that, Lattlay-Fottloy having been acquitted of conspiracy at the original trial on the basis that the jury cannot have been sure that he was the user of 998 at the time of the conspiracy, (albeit it was in his possession on arrest in October 2003), it was unfair of the judge, when exercising his discretion under section 78 of Police and Criminal Evidence Act 1984, to permit the inclusion of that number in the list of common numbers before the jury. Bearing in mind that the jury knew that Lattlay-Fottloy had been acquitted (although they did not know on what basis) and that it was conceded by the defence that 998 was being used by a co-conspirator at the time of the conspiracy, this ground has no substance.
19. Ground 5 criticises the ruling by the judge, initially given in April 2005 and repeated by indication before re-examination of the defendant that, if the defence sought to lead evidence of the defendant discussing with Chadwick, Alex, the plasterer's, connection with the appellant's telephones, the prosecution would be entitled to lead as evidence of the appellant's bad character, under section 101 of the Act, the fact that, within minutes of being shot by an unknown person in January 2004 the first thing the appellant did was to dispose of his mobile phone. It is said that this intimation had an emasculating effect on the appellant's evidence. Whether or not it had such an effect, the judge's indication/ruling was correct. There is no substance in this ground.
20. There is no ground for regarding this appellant's conviction as unsafe. It was for these reasons that, on 25th January, we dismissed the appellant's appeal against conviction.
21. MR CSOKA: My Lords, I submitted an application yesterday on the assumption that the Court would decide the issue.
22. THE VICE PRESIDENT: Yes, that was pretty prescient of you. Bearing in mind the appeal had been dismissed, it is a pretty fair conclusion. We have the proposed certified question.
23. MR CSOKA: My Lord, I have discussed the matter with Miss Blackwell; the attitude of the respondents is essentially neutral, although they agree that it does raise points of law of general public importance, at least as important as the original points of law in the case of Kearley. For those reasons, I do ask the Court to certify the question. I appreciate it is far more exceptional for the Court to grant leave to the House of Lords but, bearing in mind that this is an issue which the House of Lords have determined in the past and common-law, this is an exceptional point of law, which would justify the Court taking an exceptional course of granting leave also.
24. THE VICE PRESIDENT: Miss Hirst, do you want to say anything about this?
25. MISS HIRST: My learned friend has quite accurately summed up the conversation he had with Miss Blackwell. I also had that conversation. In terms of the application for leave to appeal, of course, we do not support that application but in terms of the issue of whether it is of general public importance, we concede it may very well be.
26. THE VICE PRESIDENT: We shall certify the question. We refuse leave.
27. I am reminded that, because we have certified a question, without giving you any encouragement at all, we do make a representation order for counsel to make an application to the Lords if it be thought right to do so.

The proposed question certified is:

"Does Chapter 2 of Part 11 of the Criminal Justice Act 2003 (in particular sections 114, 115 and 118) have the effect of reversing the majority decision of the House of Lords in R v Kearley [1992] 2 AC 228 HL and thus render unintended implied assertions to be admissible non-hearsay evidence?"