England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 4 December 2007

1. LORD JUSTICE RICHARDS: This is a prosecution application for leave to appeal against a terminating ruling under section 58 of the Criminal Justice Act 2003. The ruling was made by the trial judge, Mr Recorder Narayan, on 21st August 2007 in the course of the defendant's trial in the Crown Court at Burnley. Following the ruling the prosecution sought an adjournment to consider whether it wished to appeal. The jury was discharged. On the following day the prosecution told the judge that they wished to make an application for leave to appeal. Leave was not sought, as it should have been at the time, from the Crown Court, but we ourselves have now granted leave. No dispute has been raised before us that the conditions for an appeal to this court are satisfied.
2. The defendant is charged on count 1 with being concerned in making an offer to supply a controlled drug of class B, namely amphetamine, on 20th September 2005, on count 2 with being concerned in the supply of amphetamine on 30th September 2005, and on count 3 with possessing amphetamine with intent to supply on 19th April 2006.
3. The charges arise out of an undercover investigation into the supply of controlled drugs in East Lancashire. The prosecution case is that the defendant was holding a supply of drugs for a dealer called Kevin Barski who has since been convicted in relation to the supply of drugs to the undercover officers and that the defendant had sufficient control over the supply to be able to dictate the prices at which the drugs were to be offered.
4. The first incident to bring the defendant to the attention of those carrying out the investigation was on 20th September 2005. Undercover officers assuming the identities of "Sean" and "Eddie" had established themselves at an address near Orchard Drive in Oswaldtwisle and had identified amongst others that Barski was a person engaged in the supply of controlled drugs. It was against that background that arrangements were made for Barski to attend at the address used by Sean and Eddie on the afternoon of 20th September 2005, ostensibly for the supply of a quantity of amphetamine to "Roy", who was in fact a third undercover officer.
5. Contact was made with Barski a little after 3.44 pm. He arrived at the address a short time later. At 3.50 pm, prior to his arrival, he had been seen to emerge from an alleyway that runs along the rear of the defendant's address in Spring Hill Road. He was seen to be carrying a white carrier bag. When he arrived at the address used by the officers he handed over a carrier bag to "Roy" in exchange for £950. The bag was subsequently found to contain 559 grams of amphetamine at 4% purity.
6. Consequent upon that transaction there followed discussion as to whether Barski would be able to make further supplies of amphetamine of better quality. It was in the context of this conversation that Barski made a telephone call to ascertain the availability and cost of amphetamine paste. We will come back to that call in a moment. Having made the call, Barski indicated the price at which he could supply amphetamine.
7. On 30th September Barski had repeatedly attended the address occupied by the officers, negotiating the further sale of amphetamine. He initially arrived at approximately 11.50 am. He left and then returned with a sample of amphetamine some 10 minutes later. He was observed walking between Orchard Drive and the defendant's address in Spring Hill Road on a number of trips both in the late morning and in the course of the afternoon, and was seen actually leaving and re-entering the defendant's address. At 5.00 pm he was observed leaving the defendant's address carrying a yellow and black carrier bag. He walked towards Orchard Drive. He arrived at the address near Orchard Drive maintained by the undercover officers a little after 5.00 pm and delivered a carrier bag which was subsequently found to contain 508 grams of amphetamine at 8% purity. Having completed the transaction he was seen to return to the defendant's address soon afterwards.
8. It was many months later, on 19th April 2006, that a warrant was executed at the defendant's address at Spring Hill Road. During the search of that address there was recovered a plastic box found to contain 531 grams of amphetamine at 2% purity.
9. That is the chronology of events. We come back to the telephone call on 20th September. The call was made at 3.55pm. It was of 38 seconds duration and on the prosecution case can be shown by telephone records to have been made from Barski's mobile telephone to a mobile telephone that was recovered in the search of the defendant's address on 19th April 2006. The defendant also admitted in interview that the telephone recovered at his address belonged to him.
10. The call itself was captured at Barski's end of the conversation by covert recording equipment, which again, according to the prosecution, reveals the apparent immediacy of the recipient's response, with no surprise or confusion at the nature of the enquiry. The relevant part of the transcription of the call reads as follows:

"(Makes phone call) Hiya, it's me what can you get on the paste, a price on the paste? Yeah the paste, the Billy, the paste on a Ki?"

The prosecution applied at trial to adduce evidence of that telephone call, including those words as spoken by Barski. The defence was prepared to admit the bare fact of the call from Barski's telephone to the number of the defendant's telephone and the duration of the call, but the application to adduce evidence of what had been said by Barski during the conversation was resisted by the defence on the ground that the words spoken by Barski were hearsay within section 114 of the Criminal Justice Act 2003, had not been subject to hearsay notices and should not be admitted. The Recorder accepted the defence submission and ruled that the evidence was hearsay. That is the ruling against which the appeal is brought. The prosecution's position is that exclusion of what was said by Barski in the telephone conversation left it with no evidence to identify the defendant as the source of supply of the drugs on count 1 and that in reality there would have been insufficient evidence against him on counts 2 and 3 as well.

11. The statutory provisions in respect of hearsay evidence are contained in Chapter 2 of Part 11 of the 2003 Act. In particular, section 114(1) provides that 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, it gets through one of the specified gateways. By section 115(2) a statement is any representation of fact or opinion made by a person by whatever means. By section 115(3) a matter stated is one to which Chapter 2 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.
12. The grounds of appeal formulate the question of law for this court as follows:

"Whether evidence may be adduced at trial of words spoken (namely a request for an indication of the price for a quantity of drugs), not spoken in the immediate presence of the defendant, made by a person not called as a witness, as a basis for inviting the jury to draw an inference from the fact that the words were spoken (namely that the person to whom those comments were addressed was a person concerned in the supply of drugs)."

The submissions advanced by Mr Temkin on behalf of the prosecution are as follows. It is said first that the relevant part of the conversation contains no representation of fact or opinion save for the caller's assertion that he was "Kev" - that is to say Barski - of which direct evidence is available. This was no more than an enquiry as to the availability and cost of specific drugs. Further, if there was a representation of fact or opinion it did not relate to a matter stated within section 115(3). Accordingly, it is said the evidence does not fall within the hearsay provisions of the 2003 Act. The evidence is relied upon as a basis for drawing the inference that the person to whom the comments were addressed was a person concerned in the supply of drugs. It is said to be a clear example of what was analysed in Kearley (1992) 95 Cr.App.R 88 as an implied assertion: in this case an implied assertion by Barski that the person to whom the comments were addressed was his supplier. As such, under the common law rules applied in Kearley, it would have been hearsay. But it is submitted those rules have been abolished by the 2003 Act, save to the extent preserved by section 118.

13. In R v Sukadeve Singh [2006] EWCA Crim 660, [2006] 2 Cr.App.R 12, Rose LJ giving the judgment of the court said this at paragraph 14:

"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."

In Sukadeve Singh various telephone entries were held not to be a matter stated within section 115 but to be implied assertions which were admissible because they were no longer hearsay.

14. The submission made on behalf of the Crown is that the reasoning in that case is applicable here and compels the conclusion in the present case that the relevant part of the conversation is not hearsay and is accordingly admissible without having to meet the conditions in section 114 of the 2003 Act.
15. For the defendant, Mr Lavery submits principally that the words attributed to Barski in the relevant part of the telephone conversation do relate to a matter stated within the meaning of section 115(3) because Barski's purpose in making the statement was both to cause the officers to believe that he could get drugs at the prices in question and to cause the officers to act on the basis that the matter was as stated, that is to say to make purchases accordingly.
16. For our part we have no hesitation in rejecting that submission made by Mr Lavery. We think it plain that the only purpose of the call and of the relevant words of Barski in that call was to discover the availability and price of the amphetamine. It was, as is submitted by Mr Temkin, no more than an inquiry as to availability and price of specific drugs.
17. It seems to us that the submissions made by Mr Temkin as to the inapplicability of the hearsay provisions of the 2003 Act in this case are well-founded. We agree, for the reasons submitted by him and that we have already sufficiently set out, that the evidence to which the prosecution application related was not hearsay and that it was therefore admissible without having to comply with the statutory provisions relating to hearsay. Accordingly, we consider that the Recorder's ruling was wrong in law and we will reverse that ruling. We will hear from counsel as to whether the appropriate further order is that a fresh trial take place in the Crown Court.
18. MR TEMKIN: My Lord, I would make that submission.
19. LORD JUSTICE RICHARDS: Is there anything you can say against it?
20. MR LAVERY: My Lord, I think in my initial application I detailed the strength of the evidence in any case saying there was no direct link to the defendant in this case. I do not know if your Lordships would wish to hear me on that or if you feel that is a matter that should be aired before the trial judge.
21. LORD JUSTICE RICHARDS: Before the trial judge.
22. MR LAVERY: I am grateful.
23. LORD JUSTICE RICHARDS: Accordingly we will make an order that a fresh trial take place in the Crown Court. We are satisfied that it is in the interests of justice for such an order to be made. Is there any further matter?
24. MR TEMKIN: No, my Lord.
25. LORD JUSTICE RICHARDS: The question of reporting restrictions. What, if any, reporting restrictions should be put in place? That there should be no report of the judgment of this court until the fresh trial has taken place?
26. MR LAVERY: Yes, please.
27. LORD JUSTICE RICHARDS: That must be so. (Pause) The point that Openshaw J rightly raises with me is will this evidence not be there in any event before the court at the trial?
28. MR TEMKIN: My Lord, yes. In fact nothing that has been said in open court today was not said in opening and argument at the Crown Court in August. On reflection perhaps there is no reason for reporting to be prevented at this stage.
29. LORD JUSTICE RICHARDS: The case is listed under initials rather than the name, and if that were maintained it would provide a degree of protection.
30. MR JUSTICE OPENSHAW: I can see that there may well be cases where that would be a necessary protection of the process of a fair trial, but I cannot see that that really applies in this case.
31. MR LAVERY: Not given the context of the ruling.
32. LORD JUSTICE RICHARDS: In that case we will make a reporting restriction to the extent that it continues to be referred to as R v MK, but beyond that we will impose no restriction.