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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Bucknor v R [2010] EWCA Crim 1152 (27 May 2010) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/1152.html Cite as: [2010] EWCA Crim 1152 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOLWICH CROWN COURT
H.H.J. BYERS
T/2008/7534
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE ANDREW SMITH
and
MR JUSTICE DAVID CLARKE
____________________
Ashley Dwayne Bucknor |
Appellant |
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- and - |
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The Queen |
Respondent |
____________________
Mr. N.J. Atkinson QC appeared for the Respondent
Hearing date: 19th May 2010
____________________
Crown Copyright ©
LORD JUSTICE HOOPER :
Now, ... I want to give you a direction in relation to the Bebo and the OC website on YouTube. As far as the OC or the YouTube material is concerned, it is simply background to the OC gang. As far as the Bebo material is concerned, you have heard that on that website, which you have seen and which you have copies of, material is shown which may depict -- it is a matter for you whether it does -- this defendant in a somewhat tough light. The defendant denies any knowledge of that material except some photographs which were taken by him on his cousin's phone.
You decide when you are looking at that Bebo material whether it is his website and whether he put the entries on it, whether it be at the beginning or at some stage. If he did not or may not have done, then ignore the material because it cannot help you. If, however, you are sure it is his website or that at the very least the material on it is there to show him in a tough light and was put there by him, then you may use it to help you if you think it is fair and right to do so in determining whether his presence at the scene that night was accidental in the way that he has described and therefore innocent. (Emphasis added)
If this defendant was, and the jury are satisfied that he was, the author of all or some of the material upon that website then it is plainly admissible in this case. If the jury come to the conclusion that he may not have been involved in the compilation of that website, they are still entitled to receive that evidence as part of the general background to the case.
I am satisfied that as part of the background, as I ruled earlier, that this evidence should go before the jury. They will receive careful directions upon it, but it is plainly admissible and therefore they will receive it.
any representation of fact or opinion made by a person by whatever means; [including] a representation made in a sketch, photofit or other pictorial form,
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 ... on the basis that the matter is as stated.
I have been asked to consider section 114. If the jury came to the conclusion that they could not be sure that this was the defendant's handiwork, then they would be bound to come to the conclusion that it was hearsay evidence and consequently 114 comes into play, so says Mr Spens. If Mr Spens is right, then I have to consider whether it should be before the jury. I have come to the conclusion as I have stated already that a fair trial can still take place.
I have considered section 114 (1) and I also considered section 114, sub-section 2 and the provisions outlined (a) to (i). I have come to the conclusion this evidence is receivable by the jury and accordingly it will be.
26. ... In considering admissibility, reliability is a matter for the judge. If it appears to the judge that the maker of the statement is unreliable that is a powerful indication that the statement should not be admitted in the interests of justice. The fact that that unreliability can be demonstrated to the jury, if the statement is admitted, does not seem to us to be a legitimate consideration in deciding whether to admit the statement or not. If it were, then the more the maker of the statement was obviously unreliable, the more likely it would be that the statement would be admitted. That is not an effect envisaged by section 114.