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:
the speaker wishing the hearer to act upon his message; and
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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