EWJ June 61 2025 web - Flipbook - Page 107
any would be the matter that prosecution was setting
out to try to prove. However, where a party sought to
prove that a matter stated in the communication was
fact, as opposed to opinion or comment, then the rule
against hearsay would be engaged.
of suspects lower down the command chain first, just
to see later what the digital reaction is of those higher
up.
In conspiracy cases there will often be significant areas
of evidence which, on the face of it, appears damming,
but which in fact are not admissible against a particular Defendant.
As a guide the Court indicated that it would be
helpful to approach the question on whether the
hearsay rules applied 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 not, 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 not, it is not.
A basic rule of evidence is that, ordinarily, acts done
or words uttered by ‘A’ cannot be evidence against ‘B’.
But in conspiracy cases there is the so-called ‘acts and
declarations’ rule. This provides that the acts or declarations of any conspirator or co-accused made in furtherance of the alleged common design may be
admitted as part of the evidence against any other conspirator. The Criminal Justice Act 2003 preserves this
rule – i.e. as an exception against the common-law
exclusion of such hearsay evidence; s118(1).
To be admissible against a co-Defendant the
declaration in question must be in furtherance of the
common design; it must; “be demonstrated to be one forming an integral part of the machinery designed to give effect
to the joint enterprise” – R v Reeves, unrep. Dec 4, 1998.
Descriptions of past events etc are not made in furtherance of the common design and are therefore not
admissible against anyone other than the maker. For
example, an undercover officer covertly records suspect X discussing the preparations for an offence and
person Y is mentioned. This could be admissible evidence against both X and Y in a conspiracy case.
The Court emphasised that in deciding whether a
communication was hearsay or not, might not be the
end of the issue of admissibility. The fact sought to be
proved had to be a relevant fact – not just something
the prosecution wanted the jury to hear against the
Defendant. In that case, even if the material passed
the Twist tests the evidence would be inadmissible
anyway.
In R v Doyle [2018] EWCA Crim 2198, the Court of
Appeal considered a drugs case where a phone had
been discovered in a drugs raid. Text messages were
discovered that had been sent to D, one of which accused D of opening up packages of ‘weed’ – something
which D denied in reply. The Judge found the messages were not hearsay and admitted them as evidence. In fact, as the Court of Appeal found, the text
allegation was hearsay as it was tendered to prove the
truth of D’s involvement with the cannabis. However,
though the trial Judge had erred the Court of Appeal
applying the s114(1) test of whether the hearsay
should be admitted in the interest of justice (a very
wide test) found that it would have been admissible
hearsay in any event and upheld the conviction.
But the acts and declarations rule can, and very often
should, be tested by the defence. In R v Gray and Liggins [1995] 2 Cr. App. R 100 the Appeal Court went
back to basic principals by recalling that; “the basic reason for admitting the evidence of the acts or words of one
against the other is that the combination or pre-concert to commit the crime is considered as implying an authority to act to
or speak in furtherance of the common purpose on behalf of
the others. From the nature of the case it can seldom happen
that anything said by one which is no more than a narrative
statement or account of some event that has already taken
place…..can become admissible under this principal against
his companions in the common enterprise.”
Thus, it maybe that X’s comments can in truth be
shown to be no more than grandstanding or describing past events – and even if that is not clear there remains a discretion for the Judge to direct the jury not
to hold X’s words against Y.
Proving Conspiracies
The essential element of the offence of conspiracy is
evidence of an agreement with others to commit an
offence. The ‘agreement’, of course, is never a signed
document expressing a contract to commit a crime.
The Crown will simply invite the jury to infer the
agreement from the surrounding circumstances. This
will often mean heavy reliance on the phone contacts
between suspects and also the timing and frequency of
those contacts.
Cell-Site Analysis
Mobile phones can of course be powerful evidence of
where a particular individual was at a certain time.
The evidence comes usually from a police officer, but
sometimes an expert briefed by the Crown will consider information from the network provider about
which of their ‘cell-sites’ were used in certain calls; i.e.
which cell picked up or received the radio wave transmissions carrying the call.
For example, the Crown might invite a jury to infer
that one series of calls by a Defendant to others is the
‘arrangement stage’, and the next series of calls, happening just after the arrest of those others, is the Defendant desperately trying to find out what has
happened to his drugs, guns or whatever. Indeed the
police have sometimes use the tactic of making arrests
EXPERT WITNESS JOURNAL
If the police want to show the movement of an individual from one place to another then the expert can
show how the phone signal passed from one cell site
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