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#Encrochat: Hearsay barely featured in this particular EncroChat judgment.




Hearsay barely featured in this particular EncroChat judgment. Assumedly, the judges were satisfied the Encrochat messages aligned with Lord Hughes’ logic surrounding text messages in R v Twist and Others [2011] EWCA Crim 1143, that Encrochat messages did not amount to hearsay as they were based in a ‘common understanding’.


When determining the admissibility of material contained in telecommunications involving a defendant it is important when applying the statute to distinguish between:

  1. the speaker wishing the hearer to act upon his message; and

  2. the speaker wishing the hearer to act upon the basis that a matter stated in the message is as stated (i.e. true).

Only the second will bring into operation the hearsay rules (Twist,at [16]). Where a communication falls outside of the scope of the hearsay provisions the probative value of the evidence is then a matter for the jury [Twist,at [21]). It is submitted that the court was correct to proceed on this basis in respect of the EncroChat material.

 

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