On 21 May 2010 we heard the appeal against conviction of Mark Chrysostomou, who is now aged 33. Leave to appeal had been given by the single judge, although on limited grounds. We allowed the appeal on count 1 and substituted a verdict of guilty under section 2 of the Protection from Harassment Act 1997 for the conviction under section 4 of that Act. The Sentence on count 2 (as substituted) was fixed at 2 months imprisonment concurrent with the sentence on count 3, on which there was no appeal. We said that we would give our reasons for allowing the appeal at a later date. These are our reasons.

This appeal arises out of the conviction of the appellant before HHJ Addison and a jury in the Crown Court at Guildford on 9 December 2009 on two counts. The first was that of possessing an imitation firearm with intent to cause fear of violence contrary to section 16A of the Firearms Act 1968 (count 1); the second was that of putting a person in fear of violence by harassment contrary to section 4(1) of the Protection from Harassment Act 1997: (count 2). On 7 August 2009 the appellant had pleaded guilty to destroying property contrary to section 1(1) of the Criminal Damage Act 1971, which was count 3 on the same indictment. Nothing arises out of that guilty plea.

On 5 February 2010 the appellant was sentenced to 9 months imprisonment on count 1; 4 months imprisonment (concurrent) on count 2 and 1 month imprisonment on count 3, making a total of 9 months imprisonment. The judge ordered that 104 days spent on remand should count towards sentence pursuant to section 240 of the Criminal Justice Act 2003.

The events giving rise to the charges took place on 2 June 2009. The appellant had known the complainant, a young lady whom we shall call ER, for about 6 or 7 years, although not intimately. At the trial, ER accepted in cross-examination that the appellant had lent her £50 at some stage, but she said that she had repaid it before the incident on 2 June 2009. On that day ER had been in a public house with a friend. They left there at about 6pm to go home. The appellant telephoned her on his mobile and seemed aggressive because she had not given him a lift home. ER went to her house. On the way ER telephoned a friend called Dylan. In evidence she said she did this because she was frightened. At some stage either just before or just after ER got to her house, her brother also arrived there.

When ER got to her house the appellant telephoned her again and said “I’m nearly there”. He also left her a voicemail message. ER’s brother telephoned 999 because he was very concerned. At about the same time ER heard someone apparently kicking the door of her house. She looked out of her window and saw the appellant on the doorstep, holding what looked like a gun. It was, in fact, an imitation firearm, known as a BB gun.

The police arrived and seized the BB gun from the compartment of the appellant’s car. The appellant was arrested and his mobile phone was taken. The police also asked to examine the mobile phone of the complainant. She said that she could not give it to them because it was her work mobile. However, PC Charlotte Smith examined ER’s mobile phone at the house and noted down some text messages from the phone. The battery of the mobile was low, but just before it expired, PC Smith noted a text (received) which read “just going to the bog to do a line”. PC Smith’s evidence was that ER then took the phone and appeared to be deleting text messages, which she was told not to do. PC Smith’s evidence was that she could smell alcohol on ER’s breath upon arrival at the complainant’s house.

The prosecution case at the trial was that the appellant stood outside ER’s bedroom window and held a BB gun, intending ER to believe that he would use unlawful violence against her: count 1. This conduct, together with text messages sent to ER, also amounted to putting ER in fear of violence by harassment: count 2.

In the course of his police interview, the appellant alleged that ER was a cocaine user and that he had lent her £750, although he said that money was not for drugs. The appellant accepted that he went to ER’s house and that he lost his temper and broke a window, hence his guilty plea to count 3. But he denied brandishing the BB gun. He also denied sending any text messages which were intended to harass the complainant. The appellant said that he was only trying to get his money back, but he himself was threatened by ER’s brother.

The appellant’s mobile phone and its SIM card were analysed. The results of the analysis were contained in a report by Afzal Patel, which was served on the defence by the prosecution under a Notice of Additional Evidence dated 14 September 2009, ie. nearly three months before the trial. In the phone’s memory were five texts to the appellant which came from a person identified as “John” in the phone’s address book of contacts. Four of these texts are relevant to this appeal. They were sent on 2, 3 and 5 June 2009, ie. on the day of the incident and then on subsequent days, when the appellant was in police custody.

The four texts are as follows:

The first text is timed at 10.36.45 (GMT + 1) on 2 June 2009. It reads: “Mate can you get me a henry in for Thursday? I will be in on wed”.

The second text is timed at 11.14.19 the same day. It reads: “Can I meet you about a mid day ish tomorrow for henry? Ta mate and is it still £100?”.

The third relevant text is timed at 10.35.02 on 3 June, ie. when the appellant was in police custody. That reads: “Morning mate, I need 7 g will you do it for 200”.

The last text is timed at 11.55.08 on 5 June and reads: “If your about sometime today with any stuff on you can you let me know, ta”.

Because the analysis of the appellant’s mobile phone was not undertaken by the time of his police interview, he was not asked about those texts at that stage. The police did not, apparently, attempt to trace the person called “John”, ie. the presumed author of the texts. At the time of the trial there was no other evidence that the Crown had to suggest that the appellant might be a Class A drug dealer, as opposed to a drug user. It was not suggested by the appellant’s antecedents. ER denied that she had any knowledge of Class A drugs, either with regard to the appellant or herself.

On 28 October 2009 the Crown served an application to adduce the previous convictions of the appellant as “bad character” evidence. Those convictions related to harassment of another girlfriend. The ground on which the Crown sought to adduce those convictions was that they were relevant to an important issue between the Crown and the appellant, viz. that the appellant had a propensity to commit offences of the nature charged. So the “gateway” asserted was that referred to in the Criminal Justice Act 2003 (“CJA 2003”), section 101(1)(d) and s.103(1)(a). That application was not pursued by the Crown.

ER gave evidence first. Before she started to give evidence, counsel for the appellant had applied, pursuant to section 100(1)(a) and (b) of the CJA 2003, (the section dealing with “non-defendant’s bad character” evidence), to cross examine ER on her alleged drug use. In other words, it was said that evidence about this topic was either important explanatory evidence or it had substantial probative value in relation to a matter which was a matter in issue in the proceedings and was of substantial importance in the context of the case as a whole. In terms of the offences of which the appellant was charged, the possible relevance of the evidence about ER’s possible drug use or her debt to the appellant (if there were one) was said to be, first, as to why the appellant was at ER’s flat at all and perhaps also his conduct there in breaking the window; and secondly, as to why he had sent various texts to her demanding money.

The judge ruled that was the case and permitted the questions to be put. However, in cross examination ER denied that she ever used cocaine and although she accepted that she had borrowed £50 from the appellant, she said that she had repaid it and she denied that she had ever borrowed more money from him. In cross-examination ER also accepted that 5 texts to the appellant, which appeared to be consistent with her being in debt to him and that she was attempting to find the money, had come from her mobile phone. That phone had not been further examined by the police beyond the short examination by PC Smith at the scene of the incident, to which we have already referred.

Towards the close of its case the Crown applied to adduce the four text messages as “bad character” evidence against the appellant. We assume that the application was made on the basis of the “gateway” in section 101(1)(g), ie. that the appellant, through his interview answers and the questions put in the cross-examination of ER, had attacked her character. The judge refused that application. But he warned counsel for the appellant that he would reconsider the matter if the appellant gave evidence in chief that attacked the character of ER.

The appellant then gave evidence. In doing so he said that: (a) he had lent ER money, but not for drugs; (b) by 2 June 2009 she owed him £750; (c) he had introduced ER to a man called Dylan who was a drug dealer and that the appellant knew that Dylan had supplied ER with drugs, particularly cocaine; and (d) on 2 June he had seen ER get cocaine and go to a lavatory, with the implication that this was to do a line.

At the close of the appellant’s evidence in chief the Crown renewed its application to adduce the four texts as “bad character” evidence of the appellant. The “gateways” then relied on were section 101(1)(f) and (g) of the CJA 2003, viz. that the evidence should be adduced to correct a false impression given by the defendant (ie. that he was not a drug dealer); or because the defendant had made an attack on the character of ER.

Counsel for the appellant objected to the texts being put in evidence on three grounds. First, he said that they were inadmissible hearsay evidence. Secondly, even if the evidence was admissible, it should not have been admitted because it would have such an adverse effect on the fairness of the proceedings that the court should not admit it: section 101(3). That section only applies to “bad character” evidence admitted under paragraphs (d) and (g) of section 101(1), but not paragraph (f), ie. when it is sought to be admitted to correct a false impression. So the third ground, which was general, was that the court should exercise its discretion under section 78 of the Police and Criminal Evidence Act 1984 (“PACE 1984”) not to admit the evidence, on the basis that the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

The judge held, first, that the texts were not “statements” within the meaning of section 115(1) of the CJA 2003 and thus not hearsay evidence to which Chapter 2 of Part 11 of the CJA 2003 applied. Therefore they were, prima facie, admissible as evidence, subject to other possible bars to admission. Secondly, the judge held that the texts could be admitted as bad character evidence through the “gateways” of section 101(1)(f) and/or (g) of the CJA 2003. Lastly, he concluded (considering section 101(3) of the CJA and section 78 of PACE 1984) that it was not unfair in the circumstances to permit the evidence to be admitted. So he ruled that they could all be admitted as “bad character” evidence.

The trial then continued. The jury convicted the appellant on both counts unanimously after 3 ½ hours deliberation.

The single judge granted leave to appeal on a limited basis. He did not grant leave on the question of whether the texts were inadmissible hearsay evidence. Agreeing with HHJ Addison, he said that the texts were questions and not statements so did not come within the “hearsay” evidence provisions of the CJA 2003. The single judge did grant leave on the questions of (a) whether the application to adduce the “bad character” evidence was made too late; and (b) whether the judge was correct to rule that it was not unfair to admit the evidence, with section 101(3) of the CJA or section 78 of PACE 1984. Mr Hallowes on behalf of the appellant has renewed his application to argue the hearsay evidence point. We granted leave on that point at the hearing.

There are four issues that arise on this appeal. First, do the four texts that the Crown sought to introduce as “bad character” evidence constitute “hearsay” evidence within the terms of Chapter 2 of Part 11 of the CJA 2003. Secondly, if they do not, do the texts come within either of the “gateways” relied on by the Crown, viz. section 101(1)(f) and (g) of the CJA 2003 so as to be prima facie admissible as “bad character” evidence? Thirdly, if the evidence is otherwise admissible, should the judge have excluded it either under section 101(3) of the CJA 2003 or by virtue of section 78 of PACE? Lastly, are the convictions safe?

Sections 114(1), 115 and section 118(1) and (2) of the CJA 2003 provide as follows:

As this court re-iterated in R v Leonard [2009] EWCA Crim 1251, it is plain from sections 114(1) and 118(2) that the common law rules governing the admissibility of hearsay evidence in criminal proceedings are abolished with the exceptions of the rules preserved by section 118(1) itself. The common law rules are replaced by a statutory code which governs what is “hearsay evidence” and when such evidence can be admitted in criminal proceedings. Although there is no express definition of “hearsay” in the CJA 2003, it is clear that the opening words of section 114(1) and section 115 define hearsay evidence as any representation of fact or opinion (called a “statement” in the sections) made by a person otherwise than in oral evidence in the proceedings in question, when such statement is tendered as evidence of the matters stated in that statement. The statutory code dictates when such a statement, which is not made in oral evidence in criminal proceedings, may be admitted of “any matter stated”, if it is sought to adduce such a statement “as evidence of any matter stated in that statement”: section 114(1).

It must follow from this that if the purpose of adducing a “statement” that has not been made in oral evidence in the proceedings in question is not as evidence of “any matter stated” in the statement, but of some other fact, then the statutory code laid down in Chapter 2 of Part 11 of the CEA 2003 cannot apply. Moreover, as all the other common law rules concerning hearsay evidence have been abolished by section 118(2), save for those expressly retained by section 118(1), any other hearsay rule that might otherwise have prevented a hearsay statement not given in oral evidence in the proceedings from being adduced for some purpose other than to prove “any matter stated” in the statement, will no longer apply.

The common law rule was that a statement adduced in evidence to prove not the “matters stated” in it, but some other fact which the evidence tended to prove by reason of an “implied assertion”, was excluded as hearsay. The leading decision on this point was that of the majority in the House of Lords in R v Kearley [1992] 2 AC 228. The majority held that statements in telephone calls and by callers in person to the appellant’s house, all made in his absence, in which the callers asked to speak to the appellant and to be supplied with drugs, could not be admitted in evidence because they were adduced to prove, by implication, the fact that he, as an occupier of the premises, was a supplier of drugs. The majority held that the hearsay rule applied to implied as well as express assertions, so that the evidence should not have been admitted by the trial judge. But, as Sir Christopher Rose V-P stated in R v Singh [2006] 1 WLR 1564 at paragraph 14, that decision has been set aside by the CJA 2003 because the Act has abolished all the common law hearsay rules except those which it has expressly saved.

Therefore, whenever some evidence, which is not in the form of oral evidence in the proceedings, is now sought to be admitted in a criminal trial, there are three preliminary questions that have to be asked. First and foremost, is the proposed evidence relevant? Secondly, if so, is it a “statement” within the meaning of section 115(2) of the CJA? Thirdly, if so, what is the purpose for which this “statement” is to be adduced in evidence? Is it in order to prove a “matter stated” (as defined by section 115(3)), or is it in order to prove the fact that the statement was made at all or is it to prove something else?

In this case it was not argued by the appellant that the texts were irrelevant. We are also prepared to accept, without definitively deciding the issue, that the four texts sought to be admitted are “statements”, within the meaning of section 115(2). However, we are clear that the purpose for which the Crown wished to adduce the texts in evidence in this case was not to prove, as fact, any matters stated in those texts. The object of adducing them was as evidence of an underlying state of affairs, which was the basis on which “John” apparently sent the texts to the appellant, viz. that the appellant dealt with drugs and so could meet John’s demands. In the language of Kearley and Singh, the texts were sought to be admitted as evidence of an “implied assertion”. Therefore, the texts are not caught by the statutory code on hearsay set out in the CJA 2003 and, subject to any other objections to admissibility, could be admitted in evidence in the proceedings.

It is clear from the judge’s ruling on the application by the Crown to admit the texts as “bad character” evidence that the bases on which it relied for the admission of the texts were those set out in section 101(1)(f) and (g) of the CJA 2003. The first basis is therefore that the texts constituted evidence which had probative value to correct a false impression given by the appellant, namely, that he was not himself a dealer in drugs: see also section 105(1)(b). (The appellant had given evidence in chief accepting that he was himself a user of Class A drugs). The second was that the appellant had made an attack on another person’s character, namely, that ER had behaved or was disposed to behave in a reprehensible way, viz. by being a Class A drug user. (See also section 106(2)(b) of the CJA 2003).

It will be recalled that the Crown’s application was made after ER had given her evidence and after the appellant had given his evidence in chief. So the judge knew what most of the rival evidence was about the background to the events of 2 June when he made his ruling. He said in his ruling (page 2F) that the background to the events of 2 June 2009 and what led up to them “…may well be important matters, which the jury will wish to consider in trying to work out what on earth all of this was about”. The judge recalled that it had been put to ER in cross examination that she had been a cocaine user; that she knew of a man called Dylan who was a Class A drug dealer and also a friend of the appellant; and that the appellant gave her money to buy cocaine, which drug the appellant took with her on more than one occasion. ER had denied all of that. The judge said that he was not quite sure what the purpose of all this line of cross-examination might be, but “…it certainly would go to disprove any suggestion that [the appellant] was some sort of stalker and was trying to force himself upon [the complainant]”: page 2G of his ruling.

The judge also referred to the evidence in chief that the appellant had given. That evidence included statements that he had lent ER money on many occasions, although when she had asked for money for drugs he had refused her. The appellant had said that he and ER had taken drugs together. He said that he had introduced her to Dylan who had supplied her with drugs. He also gave evidence that he saw ER take cocaine on one occasion. The judge concluded that was “…a fairly clear attack on the character of the complainant”: page 5H.

The judge then considered the possible effect of the putting the texts to the appellant in cross-examination. He said, at 6A-B of his ruling:

The judge then dealt with the points raised on behalf of the appellant against permitting the texts to be admitted as “bad character” evidence. He dealt first with the argument that he should rule against permitting their admission, pursuant to section 78 of PACE, on the ground that to admit the texts would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. He concluded that it was fair to admit the evidence because it might explain the background to the events of 2 June and, if so, “…then it is right it should be adduced, because criminal cases are not or not supposed to be about simply playing games with the legislation”: page 7A.

The judge next dealt with the “hearsay evidence” point and rejected it, as already noted. The judge then considered in more detail whether the application came within the two gateways identified, ie. section 101(1)(f) and (g) of the CJA 2003. He concluded that they did and in doing so he said that he was satisfied, so far as “gateway” (g) was concerned, that section 101(3) did not prevent the texts from being put to the appellant in cross-examination.

Mr Hallowes’ first argument before us was that the application to adduce the texts as “bad character” evidence was too late and not in accordance with the Criminal Procedure Rules, Pt 35.1 and 35.4. We are unimpressed with that argument. The trial developed and the judge had to deal with it as it did so. That, by itself, is not a legitimate ground of complaint.

There is no doubt that the appellant had, in his evidence in chief, made an attack on the character of ER by giving evidence that she was a cocaine user and purchaser from Dylan. That was evidence that ER had behaved in a “reprehensible way” within section 106(2)(b) of the CJA 2003. Therefore, subject to section 101(3), this “gateway” for the admission of the texts was satisfied.

We are not convinced by the argument that the appellant had, by his evidence in chief, given a false impression to the jury, in the sense that he was only a drug user but not a drug dealer. The only basis on which it could be said that he was a drug dealer, (in the face of denials of that fact by both the appellant and ER herself) was by the very evidence that the Crown wished to adduce, viz. the texts. There was no other evidence to suggest it and it was not a positive case being put by the Crown. The appellant had admitted he was a Class A drug user and he had admitted his past convictions. We therefore cannot see the basis on which the section 101(1)(f) “gateway” could have been properly invoked.

Mr Hallowes’ next argument is much more formidable, namely that the judge should not have permitted these texts to go before the jury because, under either section 78 of PACE or section 101(3) of the CJA 2003, the admission of the evidence would have had such an adverse effect on the fairness of the proceedings that the court ought not to admit it. In this regard we note that the wording of section 101(3) of the CJA 2003 viz. “must not admit” is stronger than that of section 78 of PACE 1984, which uses the words “may not allow”. Thus, if there is an application to admit the same “bad character” evidence through the “gateways” of section 101(1)(d) or (g), then a defendant applies to the court under section 101(3) not to admit that “bad character” evidence and the court concludes that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that it ought not to admit it, then its duty is not to do so.

Our conclusion above that the proper gateway in this case was only that in section 101(1)(g) means that we must focus on section 101(3) rather than section 78 of PACE 1984. The inevitable effect of admitting the texts would be that they would become evidence of an “implied assertion” that the appellant was a person capable of providing Class A drugs. Yet the evidence of both ER and the appellant was that she had never bought drugs from him and he had never supplied her with drugs. There was no further evidence on which the Crown could base a case (which it did not attempt to do anyway) that the appellant had sold ER drugs and that she owed him money for them and that “drug debts” constituted his motive for going to ER’s house on 2 June and threatening her with the BB gun.

Therefore, if it was not the Crown’s case that the appellant had sold drugs to ER, what probative value did the texts have? At the most, all the texts could do would be to act as evidence which was consistent with the appellant being capable of supplying drugs to others. What relevance did that have to the charges against him? In our view, the texts had no relevance other than to blacken the general character of the appellant in the eyes of the jury and, therefore, dent the credibility of his evidence generally. We think that this is made clear by what we would respectfully say was the difficulty that the judge had in putting the possible relevance of the texts in his summing up to the jury at page 9D-F.

The judge said:

With respect, the texts do not help to understand whether ER took cocaine or whether she owed the appellant money in the absence of any prosecution case, or any evidence, that the appellant supplied ER with drugs.

On the other hand, if the texts were treated by the jury as evidence that the appellant was capable of supplying others with drugs, it was highly prejudicial to his case in a general sense. Of course, the jury should only have acted on the text evidence if they were sure that it proved that the appellant was capable of supplying others with drugs. The only evidence about “John” was from the appellant himself; he said that “John” was mentally unstable or “off his trolley”. The Crown adduced no evidence about “John”. We are very doubtful whether those texts could, on their own, be capable of amounting to sufficient evidence on which a reasonable jury could be sure that the appellant was capable of being a supplier of drugs to others. And, as we say, even if the jury had been sure of that fact, where did that lead them?

We are not convinced that it was proper to admit the text evidence, in order to attempt to prove that the appellant was capable of supplying drugs to others simply to assist the jury on the question of whether they believed the appellant’s evidence, which is the only other possible relevance that the judge assigned to the texts at page 10E-F of his summing up, where he deals generally with the issue of character and what use it is to the jury. He said:

We regard that as too flimsy a basis on which to have permitted the texts to be admitted as “bad character” evidence in the circumstances of this case.

For these reasons, we have concluded that the judge erred in his rejection of Mr Hallowes’ application under section 101(3) of the CJA 2003 to exclude the texts. In our view the judge should have concluded, on an analysis of the issues and the existing evidence in the case, that the admission of the texts would have had such an adverse effect on the fairness of the proceedings that they ought not to be admitted. If he had reached that conclusion, then, in the words at the outset of section 101(3), the court “must not admit evidence under subsection (1)…(g)…”.

Mr Burton for the Crown submits that the case against the appellant was strong. We agree. He also points out that the judge was careful, first, to emphasise in his summing up that the jury must not convict the appellant simply because he has a bad character: page 9H. Secondly, the judge also directed the jury that although a person of bad character may be less likely to tell the truth, it does not follow that he is incapable of doing so: page 10D.

Despite these points, we concluded that we could not be sure that the jury would have placed so little weight on the text evidence that it would have made no material difference to their verdicts if it had not been admitted. In our view there was a great danger that the text evidence would have diverted the attention of the jury from the principal issues in the case and unduly prejudiced them against the appellant. We were therefore satisfied that the admission of the text evidence did make the verdicts unsafe.

For those reasons we allowed the appeals against conviction.

When we had announced our decision, Mr Hallowes quite properly pointed out that, in relation to count 2, ie. the allegation of of putting a person in fear of violence by harassment contrary to section 4(1) of the Protection from Harassment Act 1997, the appellant had pleaded guilty to an offence under section 2 of that Act. However, that plea had not been accepted by the Crown at the time. Mr Hallowes also told us that he accepted that the appellant had effectively admitted to the section 2 offence during the course of his evidence. Mr Hallowes therefore conceded that, in the circumstances, having allowed the appeal on count 2, the court could and indeed should exercise its powers under section 3(2) of the Criminal Appeal Act 1968 to substitute a verdict on count 2 of guilty to an offence under section 2 of the Protection of Harassment Act 1997. We agreed with that course.

We considered the question of penalty for that offence and concluded that, in the circumstances, we should impose a sentence of 2 months imprisonment concurrent to that imposed for count 3. Therefore the total term of imprisonment became one of two months, less 104 days spent on remand. The restraining order made pursuant to section 5 of the Protection of Harassment Act 1997 remains in force.