England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		28th April 2009

1. LORD JUSTICE AIKENS: This is an appeal against conviction with leave of the single judge. On 30th July 2008 the appellant pleaded guilty to two counts of possessing a controlled drug of class A, viz 4.95 grams of diamorphine (count 3) and 3.6 grams of crack cocaine (count 4). He pleaded not guilty to two further counts of possessing controlled drugs of class A with intent to supply (counts 1 and 2). Those counts also related respectively to diamorphine and crack cocaine. On 26th September 2008 after a trial before Mr Recorder Walker and a jury, the appellant was found guilty of those offences under counts 1 and 2. Immediately after the trial the appellant was sentenced to five years' imprisonment concurrent on each of counts 1 and 2. It appears that no separate penalty was imposed in respect of the counts to which he had pleaded guilty.
2. The appellant lived in a housing association bedsit. On 7th May 2008 police officers conducted a search of that bedsit. The appellant was brought up to the bedsit by one police officer and in the appellant's presence the bedsit was searched and various items were found. The important items were four wraps of heroin in a tobacco tin, a small amount of cannabis, a small Argos safe in a wardrobe which had in the safe £894.60 in cash, five mobile phones and several bits of scrap metal.
3. The appellant was taken to the police station in a police van. In the course of the journey he produced a further 23 wraps of heroin. When he was searched at the police station the appellant produced a further 11 separate wraps of heroin and 20 wraps of crack cocaine in a wrapped bundle. Two further mobile phones were found in the appellant's pockets. In interview the appellant admitted that one was his. The phones were analysed. Two text messages were found, one in the inbox of each of the mobile phones. They are central to this appeal. The first, timed at 10.24 on 2nd May 2008, reads:

"Cheers for yday! Well sound gear:-S! feel well wankered today!"

The second text message was from a different phone number and was on the second mobile phone. It was timed at 10.51 on 6th May 2008. It read:

"Mark, that was a proper dog cunt move mate, that joey was a £5 joey and that was my last £10. Thanks. I dont why I think u would not do that 2 me. I dont."

It was clear from the analysis of the two mobile phones that the two messages had been read. The two senders of the texts were never identified.

4. On the morning of the trial counsel for the Crown said that the Crown wished to adduce those text messages in support of its case that the appellant was a street drug dealer as opposed to someone who had heroin and crack cocaine just for his own use. The Crown's argument was that the two texts from two different people were evidence of two drugs transactions by the appellant in the very recent past. It was said that the jury could infer from the wording of the texts that they were about heroin supplies that the appellant had made. Therefore, they were evidence in support of the Crown's case that the appellant possessed drugs with intent to supply them to others.
5. The defence objected to these texts being introduced as evidence. They said that they were (a) inadmissible hearsay evidence, (b) evidence of bad character which the Crown had no leave to adduce before the jury and, in any event, (c) the meaning of the texts was so unclear that they could not be relevant evidence at all. In addition their introduction would be so adverse to the fairness of the proceedings that the judge should not allow their introduction.
6. Underlying the defence objections at the trial was a submission that the court should exercise its discretion under section 78 of the Police and Criminal Evidence Act 1984 to refuse to allow the texts to be adduced in evidence, even if they were otherwise admissible. The defence pointed out that (a) it was not known from whom the texts came, (b) why they were sent, (c) what they meant. In particular the defence argued that the words "joey" and "gear" were not synonymous with heroin.
7. Mr Recorder Walker made three rulings on the admissibility of the two text messages. His first ruling on 21st September 2008 appears to have dealt only with an argument concerning section 78 of the Police and Criminal Evidence Act. He ruled that it would not be unfair to admit the text messages on the basis of that section.
8. His next ruling was on the following day, 24th September 2008. It appears that counsel for the defence had not been able fully to consider the judgment of Sir Christopher Rose, Vice President, in R v Singh [2006] EWCA Crim 660, [2006] 1 WLR 1564, which had been produced by counsel for the Crown the previous day. In that case the Vice President held that entries of the appellant's mobile phone number in the memories of co-conspirator's mobile phones were admissible as evidence against the appellant. They were "implied assertions" which as a result of the abolition of the common law relating to hearsay by sections 114 to 118 of the Criminal Justice Act 2003 were no longer caught by the hearsay rule. Furthermore, the Vice President held in that case that those entries were not a "statement", nor were they "matters stated" for the purposes of section 115 of the Criminal Justice Act 2003 and so therefore not caught by the statutory hearsay rules.
9. Mr Recorder Walker held in his second ruling that the decision in R v Singh did not require him to revise his earlier ruling that the texts were admissible. We imply from that conclusion that the Recorder had decided that the texts were not hearsay evidence to which the provisions of Chapter 2 of Part 11 of the Criminal Justice Act 2003 applied.
10. The Recorder's third ruling on these texts was made on the following day, 25th September 2008. It appears that the Crown had in the meantime served a notice to adduce the two texts as "bad character" evidence within section 101(1)(d) of the Criminal Justice Act 2003, i.e. that the evidence in the two texts was relevant to an important matter in issue between the defendant and the prosecution. The important matter in issue was identified in section 3 of the notice served by the Crown. That was: whether the appellant had the drugs with intent to supply them to another as opposed to having drugs for his personal use only. The notice did not refer to a "propensity" to commit any particular crime or type of crime.
11. The application to adduce this "bad character" evidence was made out of time but the Recorder extended time. The Recorder held: (1) that the texts amounted to evidence of a disposition towards misconduct on the part of the appellant, and (2) that "they had to do with the alleged facts of the offence with which he was charged" within the meaning of section 98(a) of the Criminal Justice Act 2003 - see page 3D to H of volume 6 of the transcripts we have. On that basis the Recorder should, in our view, have said that the evidence did not fall within the statutory definition of "bad character" evidence under section 98 of the 2003 Act. However, it appears that despite this finding the Recorder went on to permit the texts to be adduced as "bad character" evidence. In so doing the Recorder impliedly ruled that the texts were relevant to an important issue between the prosecution and the defendant in the way that the Crown had identified.
12. It is not clear whether the defence at the time of this particular application expressly applied to exclude this evidence on the ground that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to have admitted them, either under section 101(3) of the 2003 Act or under section 78 of the Police and Criminal Evidence Act, but that is perhaps unlikely given the earlier ruling. The effect of the Recorder's third ruling was obviously to reject such arguments.
13. There was expert evidence before the jury from both the Crown and defence witnesses on the issue of what amounts of drugs were consistent with supply to others, in contrast to mere personal use. The defence expert, Mr Kirkham, a drugs research and adviser, gave evidence that the smallest quantities in which heroin was sold was in what was known as a "£10 bag". He also said that it was not unknown for "£5 bags" to be sold. The Crown expert, P.C. Jackson, also gave evidence that he had researched the meaning of the word "joey" on the Police National Legal Database and it referred, he said, "basically to a person employed by a gang involved in drugs" and the word "gear", he said, referred to heroin. He also gave evidence about various other aspects of drug dealers at street level, including the use of mobile phones.
14. The appellant did not give evidence. When the Recorder summed up to the jury he gave the following directions in relation to the two text messages. First, he said that the jury had to be satisfied so that they were sure that the texts involved "misconduct by the defendant, namely, whether they imply that the defendant dealt drugs shortly before his arrest as the Crown contend." If they were, he said, that would amount to bad character. He then continued:

"You have heard this evidence, which the Crown says amounts to bad character, because it may help you to decide whether the defendant had the drugs with the intent to supply them to another rather than for his personal use. Whether or not it does assist you in this respect is a matter entirely for you. You may use it for the particular purpose that I have indicated if you find it helpful to do so. If you think it right you may also take it into account when deciding whether or not the defendant committed the offences with which he is now charged. You must decide to what extent, if at all, the defendant's character helps you when you are considering whether or not he is guilty, but bear in mind that his bad character cannot by itself prove that he is guilty, it would be therefore wrong to jump to the conclusion that he is guilty because of his bad character."

15. The appellant was convicted by a majority of 10 to 1.
16. Mr Sekar for the appellant raises a number of grounds in support of the appeal. His first argument is that the judge should have excluded the evidence of the texts under section 78(1) of the Police and Criminal Evidence Act 1984. That subsection provides:

"(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

17. Mr Sekar submits, first, that the judge in making his ruling when the issue was raised adopted the wrong test by stating that test as being whether the admission of the evidence would be "grossly unfair to the defendant" - see page 2G to H of volume 2 of the transcripts. We cannot accept that submission. The judge was summarising in short form the effect of the statutory wording. We are quite satisfied that he had the full statutory wording well in mind as the proper test.
18. However, Mr Sekar has more substantial points. First, he makes points about the meaning of the texts. He said there was no evidence that the word "joey" meant heroin or that it had anything to do with a specific drug. That was not what the Crown's expert witness said it meant. Moreover, there was no evidence that the word "gear" meant heroin or a heroin wrap as opposed to drugs in general or any term as the word gear is often used. Next, he submits there was no separate evidence that the texts referred to previously supplied drugs. Further, the senders not were not identified so the authenticity of the texts could not be tested. Nor were the circumstances in which they were sent known. Therefore it was impossible for the defence to challenge the assertions of the Crown as to the meaning and implications to be drawn from the texts. Therefore in all the circumstances the admission of that evidence would have had such an adverse effect on the fairness of the proceedings that the court ought not to have admitted them.
19. It seems to us that there is a vital prior question which must be considered first. That is whether the texts were admissible as evidence at all. Mr Sekar submitted that the two texts were hearsay evidence within the meanings of section 114 and 115 of the Criminal Justice Act 2003. The Crown sought to introduce the texts as evidence without any hearsay notices. Mr Sekar submits that the Recorder erred in his second ruling by holding effectively that the texts were not hearsay evidence within the terms of the 2003 Act. If he had ruled that they were hearsay evidence then the Crown would have been unable to identify the basis on which the hearsay evidence was admissible under the provisions of section 114 to 118 of the 2003 Act.
20. Mr Sekar also challenges the Recorder's ruling that the texts could be adduced as evidence of the appellant's bad character pursuant to section 101(1)(d) of the Criminal Justice Act 2003. Contrary to the ruling of the Recorder, Mr Sekar submits that the only possible relevance of the texts was to previous misconduct of the appellant, but they were irrelevant to the facts of the offence charged on counts 1 and 2 on the indictment. He also submits that the Recorder did not properly analyse whether the texts constituted evidence of a propensity to commit offences of possessing class A drugs with intent to supply, nor did he consider whether the evidence was so equivocal that it should have been excluded under section 101(3) of the 2003 Act. As to the direction on bad character in the summing-up, Mr Sekar submits that the judge failed to give proper directions on (a) the issue to which the text messages were relevant, (b) how that evidence could assist the jury in reaching its verdict and (c) the need to be sure that the evidence of the text messages proved the commission of an offence or other reprehensible conduct so as to constitute bad character within the meaning of sections 98 and 112 of the 2003 Act.
21. Mr Sekar submits finally that given all these errors the conviction of the appellant was unsafe so that the appeal must be allowed.
22. Mr Banerjee for the Crown submitted that the texts were not hearsay evidence within the definition of the 2003 Act. Therefore, he submits, they were admissible as evidence without the need for hearsay notices and without the need to satisfy one or more of the conditions set out in section 114(1) of the 2003 Act. He relied on the decision of Sir Christopher Rose, Vice President, in Singh (to which we have already referred) and the decision of this court in R v MK [2007] EWCA Crim 3150.
23. Next, Mr Banerjee submitted that the two texts were, as the Recorder ruled, evidence that had to do with the alleged facts of the offences of which the appellant was charged so that they did not come within the definition of bad character evidence within section 98(a) of the 2003 Act. Mr Banerjee submitted that the texts were clearly to do with the alleged facts of the offence, viz. the appellant possessed class A drugs with the intent to supply them at or around the time of the search of his bedsit on 7th May 2008. There was the necessary nexus of time because the texts were sent on 2nd and 6th May 2008. It was evidence that the appellant was involved in the continuing possession with the continuing intent to supply. As such, leave of the court to adduce them as bad character evidence by virtue of one of the gateways set out in section 101 of the Criminal Justice Act 2003 was not necessary.
24. However, he said that the Crown had been cautious and that is why it had made its application to adduce the evidence as bad character evidence on the basis that it was admissible through the gateway of section 101(1)(d) of the 2003 Act. On that basis he submitted that the texts were relevant to an important matter between the defendant and the prosecution within section 101(1)(d) because they were relevant to the issue of whether the appellant had class A drugs with intent to supply. He submitted that the Recorder was correct to admit the evidence under that gateway and under section 101(3). The Recorder took into account the possible adverse effect on the fairness of the proceedings by his ruling both on 23rd and 25th September 2008.
25. Lastly, Mr Banerjee submitted that the Recorder made no significant errors in his directions to the jury on the significance of the texts or how they should approach them in deciding whether overall the Crown had proved its case against the appellant. Therefore the convictions were not unsafe.
26. It seems to us that the first question that must be considered is: are these texts hearsay evidence or not? If they are not then none of the substantive or procedural provisions relating to the admission of hearsay evidence needs to be considered. Mr Banerjee for the Crown concedes that if the texts are hearsay evidence then that evidence would not have been admissible. He accepts that the only ground on which that evidence might have been admitted is under section 114(1)(d). He recognises, realistically, that if the court had regard to all the nine factors that were set out in section 114(2) of the Criminal Justice Act 2003 it would have concluded that it was not in the interests of justice to admit the texts as hearsay evidence.
27. We only need to consider the other criticisms of the trial and the summing-up by Mr Sekar if we conclude that the judge was right to allow the texts in evidence because they were not hearsay. However, even if we were to conclude that the judge was wrong to admit the texts in evidence, we have to consider whether the convictions are unsafe.
28. Are the texts hearsay evidence or not? The starting point is the wording of the sections. Section 114(1) provides:

"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."

Section 115(1) provides:

"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."

Section 118(1) and (2) provides:

29. "(1) The following rules of law are preserved.

Public information etc

...

Reputation as to character

...

Reputation or family tradition

...

Res gestae

...

Confessions etc

...

Admissions by agents etc

...

Common enterprise

...

Expert evidence

...

(2) With the exception of the rules preserved by this section, the common law rules governing the admissibility of hearsay evidence in criminal proceedings are abolished."

30. It is clear from section 114(1) and section 118(2) that the common law rules governing the admissibility of hearsay evidence in criminal proceedings are abolished with the exception of the rules preserved by section 118 itself. The common law rules are replaced by the statutory code which governs what is hearsay evidence and when it can be admitted as evidence in criminal proceedings. That is confirmed by authority, in particular this court's decision in Singh [2006] 1 WLR 1564.
31. The statutory code does not expressly define what is meant by "hearsay" evidence for the purposes of criminal proceedings. But as paragraph 11-1 of Archbold points out, the effect of the opening words of section 114(1) and section 115 taken together is to define hearsay evidence as: "any representation of fact or opinion made by a person otherwise than in oral evidence in the proceedings in question when such representation or statement is tendered as evidence of the matters stated in that representation or statement." The statutory code dictates when such a statement "not made in oral evidence" in criminal proceedings may be admitted of "any matter stated" in that statement, if it is sought to adduce such a statement "as evidence of any matter stated in that statement" - see section 114(1).
32. As Sir Christopher Rose, Vice President, said in Singh at paragraph 14, the inter-relationship between section 114 and section 115 of the Criminal Justice Act 2003 is "deeply obscure". But as we read those sections, section 115 defines what is meant and so what is covered by the expressions "statement" and "matters stated" in section 114(1). Therefore in order to see whether a certain "statement" that is not made in oral evidence in the criminal proceedings concerned comes within the hearsay evidence code set out in sections 114 to 118 of the 2003 Act, it is necessary first to see whether it falls within the definition of a "statement" as set out in section 115. If it does not then, it seems to us, the statutory code does not apply. However, if it does, then the court has next to consider why it is sought to admit the statement evidence in the particular criminal proceedings concerned. Is it being admitted for the purpose of it being evidence of "any matter stated in that statement"? Only if it is does, it come within the statutory code. But in order to decide that question it is necessary to consider, at least in the context of this case, the purpose or one of the purposes of the person making the relevant statement.
33. In considering "purpose" we have to ask, does it appear to the court that the purpose of the person making the statement was: (a) to cause another person to believe the matter stated, or (b) to cause another person to act on the basis that the matter is as stated? If the reason why the statement is being adduced in evidence is so that it can be evidence of "any matter stated", as so defined, then it must satisfy conditions set out in the statutory code before it can be admitted as hearsay evidence. If the statement is not being made for one of those purposes then, as it seems to us, the statutory code relating to hearsay evidence cannot apply.
34. It is obvious that the two texts in this case were not statements given in oral evidence. So the first question must be: are the two texts statements of fact or opinion made by a person by whatever means? It seems to us that the answer to that question must be "Yes, they are." In the first case the sender of the text is making statements of fact or opinion that the "gear" was "well sound" and that he feels "well wankered today". He is also thanking the recipient, [the appellant we assume], hence: "cheers for today." That is a statement of fact also; he is thanking the recipient for providing the "gear".
35. In the second case the sender of the text is making a statement of fact that the "joey" [whatever that might be] was a "£5 joey". He is also stating a fact, implicitly at least, that he spent his last £10 on buying that joey. The sender also expresses an opinion: "I dont why I think u would not do that 2 me. I dont." So in our view those two texts are both statements within the meaning of section 115(2) of the 2003 Act.
36. What was the reason for those statements being adduced in evidence? Was it to prove "any matter stated" in those statements? It seems to us that the answer to that question must also be "Yes". We accept that that is only the first step, because the Crown's ultimate purpose in adducing this evidence was to invite the jury to infer from those texts that the appellant had supplied drugs to the senders of the texts. But in order that the jury might make that inference, the Crown first had to establish as fact the matters stated in the texts. The Crown's interpretations of those statements were that, in the first one, the sender of the text was happy with the drugs that had actually been supplied; and in the second that he was not happy with the drugs that had actually been supplied. The Crown wished the jury to infer from those facts, if they were proved, that the appellant was a supplier of class A drugs to others. It was therefore part of the total case towards establishing as a fact that the appellant possessed class A drugs with intent to supply them to others.
37. We therefore have to ask the next question in terms of section 115(3): are "the matters stated" in the texts ones to which Chapter 2 of the Criminal Justice Act 2003 applies? To answer that question one has to ask: does at least one of the purposes of the person making the statement in each of the texts appear to the court to have been to cause another person (ie the recipient of the text) to believe "the matter" set out in the text, or to cause another person (ie the recipient of the text) to act on the basis that the matter is as stated in the statement?
38. In our view the answers in both cases must be "Yes". It appears to us that the sender of the first text must have sent it with the purpose of informing the recipient of his happiness at the receipt and use of "the gear" and for the purpose that the recipient would believe that the sender was in that state of happiness and contentment as indicated in the text. Equally, it appears to us that the sender of the second text must have sent it with the purpose of informing the recipient of his unhappiness at the receipt of the "joey" and with the purpose that the recipient should at the least believe that state of unhappiness. Whether its purpose, or one of them, was to cause the recipient to act on that state of unhappiness of the sender seems rather less certain. However, in our view the statutory regime for the admission of the hearsay evidence must, given the answers to the questions we have posed, apply to both those texts.
39. The question that then arises is whether these conclusions are inconsistent with the decisions of this court in the cases of Singh and MK. In Singh the issue was whether the fact that the memories of mobile phones of co-conspirators of the defendant contained his mobile phone numbers was admissible in evidence. The purpose of the evidence was to show that the defendant was a party to the conspiracy to kidnap of which the defendant was accused. The judge admitted the evidence and the defendant was convicted. He appealed on a number of grounds. The relevant one for present purposes was that the entries of the defendant's mobile number in the memories of the other mobile phones should not have been adduced in evidence because they came within the definitions of "statements" in section 115(2) of the Criminal Justice Act and the prosecution had wished to adduce evidence of the matters stated in those entries.
40. In our view there is no inconsistency between our analysis of section 115 and its application to this case and the decision of this court in Singh. The first sentence of paragraph 15 of the Vice President's judgment is the key part for these purposes. Entries of phone numbers in a mobile's phone memory are not "matters stated" because no person has made any statement with a purpose of causing another to believe that matter or of causing a machine to operate on the basis that the matter that has been stated by the person is as stated. In any event, we note the court also held that the entries were admissible as hearsay evidence under either section 118(1),7 or section 114(2)(d) of the 2003 Act.
41. In MK the prosecution wished to adduce evidence of the words used in a phone call between a person (Barski) wanting drugs and the defendant, who was accused (amongst other things) of being concerned in making an offer to supply a controlled drug of class, ie amphetamines. The police had covertly tapped the call. The prosecution wished to adduce the evidence in support of its case that it was this defendant who was the source of the intended supply of drugs that were the subject of this charge. The trial judge ruled that the prosecution wished to adduce the words as evidence of "any matter stated" and that the words fell within the definition of section 115(3) of the Criminal Justice Act 2003. Following the ruling the prosecution appealed under section 58 of the Criminal Justice Act 2003.
42. The Court of Appeal allowed the appeal. The court held that the purpose of the call and the import of the words used by Barski was to discover the availability and the price of amphetamines. Therefore, as we understand the ruling, those words were neither a "statement" within the definition of section 115(2) nor were they "matters stated" within section 115(3). Whilst we have some difficulty with the latter proposition, there is none with the former. But there is nothing inconsistent between our conclusion in this case and the decisions in those two cases.
43. However, the result of our analysis is that, in this case, the evidence in the two texts that the Crown sought to adduce was hearsay evidence within the meaning of sections 114 and 115 of the 2003 Act. In so far as the Recorder ruled to the contrary in his second ruling, he was wrong. If he had ruled that the texts were hearsay then, as we have noted, it is accepted by Mr Banerjee that the only basis upon which the evidence could be admitted as hearsay would have been by section 114(1)(d) of the 2003 Act, ie that it was in the interests of justice to do so. As we have also noted, before the texts could have been admitted under that heading the court would have had to have regard to the nine matters set out in section 114(2). Mr Banerjee realistically accepts in this court that the evidence would not have been admitted following a consideration of all those factors.
44. It must follow therefore that the evidence of the texts was inadmissible. It therefore could not have been admitted, whether as "bad character" evidence or otherwise.
45. That therefore leads to this question: is the conviction nonetheless safe? Even without the two texts the case against the appellant was a very strong one. First, there were the circumstances in which a large quantity of two sorts of class A drug were found, both in the Housing Association bedsit and on the appellant himself. Mr Sekar says that class A drug users do buy in bulk. So they may do if they are wealthy, but that could hardly be said of this appellant living as he was in his Housing Association bedsit.
46. Secondly, there was the large amount of money found in a safe in the wardrobe in the bedsit: £894.60 altogether. Thirdly, there were the large amounts of the further class A drugs that were found actually on the appellant's person in the course of the journey to and also at the police station. All these drugs were individually wrapped suggesting strongly that they were ready for sale on the street. Fourthly, there was the fact that five mobile phones were found on the appellant either on him or at his bedsit. He admitted to owning two. There was expert evidence that a large number of mobile phones is effectively part of the paraphernalia of drug dealers at street level. Fifthly, there was the lie that the appellant had bought a large quantity of drugs to share with a lady at the weekend, when in fact she was only going to be released from prison the following week. Sixthly, there was the expert evidence about the modus operandi of street dealers in class A drugs, the number of wraps, the use of mobile phones and the amount of money found in the bedsit, all of which tended to suggest that they were consistent with possession with intent to supply. Lastly, there was the fact that the appellant did not give evidence, although it must be accepted that he had given a full account in interview. Nevertheless Mr Banerjee said there would have been matters that he would have wished to cross-examine the appellant on if he had given evidence.
47. Mr Banerjee says that in the context of all this other evidence the evidence of the two texts was a small part only of a powerful case against the appellant. On that evidence, he argues, the jury would have inevitably concluded that he was in possession of the drugs with intent to supply them.
48. Mr Sekar submits that the text evidence put the whole trial off onto the wrong track and so the remainder of the trial, the summing-up and therefore the verdicts are contaminated by the whole course of the trial after the introduction of that evidence. However, he does not say that the appellant would definitely have given evidence had those texts not been introduced as evidence. He could only say, with some diffidence "it was likely" he would have been.
49. Having considered the matter very carefully we have come to the conclusion that, despite the error of introducing these two texts as evidence, these convictions were perfectly safe. Our only concern has been with regard to that part of the summing-up where the judge gave his directions on bad character, to which we have already referred. However, it is clear, in our view, that the judge was there dealing with the effect of the two texts and what use the jury could make of that evidence alone. The judge did explain that the purpose of the evidence was to assist the jury to decide on whether the appellant had the drugs with intent of supplying them to another rather than for personal use. The judge was careful to confine what he called "bad character evidence as we lawyers call it" to within a very small scope. We have no doubt that the introduction of the inadmissible evidence did not taint the rest of the trial.
50. For those reasons we have concluded the verdicts were perfectly safe. Therefore, despite our ruling on the admissibility of the text evidence, this appeal must be dismissed.
51. MR SEKAR: There are a couple of matters I feel I should address your Lordship on. The first is that one of the mobile phones -- and I apologise for not having addressed your Lordship on this matter earlier -- one of the mobile phones in fact the Crown in fact at the end of the trial, after the verdicts, said was not in fact Mr Leonard's, though it was found in his possession. That is just in effect a typo.
52. The other is that the only reason I did not say that Mr Leonard would have given evidence, but as was adverted to on the last paragraph of my skeleton argument that the matter could have been considerably shorter, was no one knows at the beginning of a trial exactly what may happen. Certainly the likelihood was had the text evidence not gone in that he would have been called. That is the highest I could ever put it and that is the reason I put it so low in the skeleton argument.
53. LORD JUSTICE AIKENS: What are you saying now, that it might have been considered?
54. MR SEKAR: Certainly when the papers first arose, if that is what the reference is to the matter being considerably shortened, it was considered that it was a straightforward case when it was highly likely he would have gone into the witness box and given evidence. That is what the reference is. I acknowledge it is very -- it may be considered to be slightly obscure, but that wording is taken from another judgment which I cannot, I am afraid, refer your Lordships to, where somebody made a similar submission that it is likely that-
55. LORD JUSTICE AIKENS: You are looking at what now?
56. MR SEKAR: Paragraph 17 of the skeleton argument. The sentence does not say that in terms.
57. LORD JUSTICE AIKENS: The sentence rather implies the opposite, does it not?
58. MR SEKAR: Well, no. What was intended, and I acknowledge that it is obscure, what was intended by that was that had the text messages been ruled inadmissible or not been introduced into the trial then the close to three days of legal argument would have meant that it was much shorter because it basically would have been -- almost all the evidence was agreed in one form or another and the likelihood was, subject to what happened during the trial, that Mr Leonard would have given evidence. That is what that intended to mean.
59. LORD JUSTICE AIKENS: It does not say that, does it, Mr Sekar?
60. MR SEKAR: Not in terms, no.
61. LORD JUSTICE AIKENS: Not at all.
62. MR SEKAR: Well, I borrowed that wording from somewhere else. Maybe I should have been clearer. I felt your Lordship, whether for good or ill, I ought to make that--
63. LORD JUSTICE AIKENS: That was the purpose of inviting you to make submissions on the issue of the safety of the conviction.
64. MR SEKAR: Yes, my Lord. I recognise that now is not the most appropriate time to say it.
65. LORD JUSTICE AIKENS: Thank you very much for those submissions. Is there anything else?
66. MR SEKAR: No.
67. LORD JUSTICE AIKENS: We do not think that it alters our conclusion in any way.