352018 R. v. Twist and others [2011] All ER (D) 102 (May); [.docx

3/5/2018 R. v. Twist and others [2011] All ER (D) 102 (May);
[2011] EWCA Crim 1143) | CLJ
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Twist-and-others-2011-All-ER-D-102-May-2011-EWCA-Crim-
1143 1/2
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Date: 20th May 2011
R. v. Twist and others [2011] All ER (D) 102
(May); [2011] EWCA Crim 1143)
Evidence
Admissibility of Hearsay Evidence
In R. v. Twist and others, judgment delivered May 12, 2011, the
Court of Appeal, Criminal Division, gave consideration to the
way
in which the new rules on hearsay, contained in the Criminal
Justice Act 2003 (CJA 2003), applied to communications, such
as text
messages, made to or by the defendant. It held that the question
of whether such communication amounted to hearsay
depended on the matter for which it was relied upon and the fact
which it was sought to prove.
Four cases were heard together because they concerned the way

in which the new rules on hearsay, contained in CJA 2003,
applied to communications made to or by the defendant. All of
the cases involved text messages sent by the defendants and
three
of the cases involved messages which had been received by
them. The defendants, T and B, had been charged with
possessing
Class A drugs with intent to supply and they were alleged to
have received messages requesting the supply of drugs. In the
case of
TM and K, the charge was robbery, the key issue being whether
they had had a gun at the relevant time. The message received
by
one of them had been a request for a gun to be delivered to the
sender of the text. In respect of the defendant, L, the charge was
rape and the issue was one of consent. The prosecution alleged
that messages sent by him to the complainant following the
alleged rape amounted to confessions or admissions. In all the
cases, the defendants had sought to exclude the text messages
on
the basis that they were hearsay. However, the Judge had found
that the text messages were not hearsay and they were admitted
under CJA 2003, s.114. The defendants were convicted. They
appealed against conviction.
Consideration was given to the application of the hearsay
provisions of CJA 2003, in particular, ss.114 and 115, to forms
of
communication such as text messages, and whether the Judge
had erred in admitting the relevant text messages into evidence.
The appeal would be dismissed.
(1) CJA 2003 undoubtedly abolished the common law of hearsay
except where it was expressly preserved. Generally, the
question
of whether the hearsay rules applied to communication such as

text messages was to be approached in the following way: (i)
the
relevant fact (matter) that was sought to be proved had to be
identified; (ii) it had to be asked whether there was a statement
of
that matter in the communication, if no, then no question of
hearsay arose; (iii) if yes, it had to be asked 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 was hearsay, if no, it was not. The answer to those questions
would be case sensitive. The same communication might
sometimes be hearsay and sometimes not, depending on the
matter for
which it was relied upon and the fact which it was sought to
prove. It was important when applying the statute to distinguish
between: (i) the speaker wishing the hearer to act upon his
message; and (ii) the speaker wishing the hearer to act upon the
basis
that a matter stated in the message was as stated, namely true.
Only the latter would bring the hearsay rules into operation.
Even
if the communications were not relied upon for their hearsay
content, that did not relieve the court of applying the usual tests
for
admissibility.
The important opening words of CJA 2003, s.114:
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3/5/2018 R. v. Twist and others [2011] All ER (D) 102 (May);
[2011] EWCA Crim 1143) | CLJ
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Twist-and-others-2011-All-ER-D-102-May-2011-EWCA-Crim-
1143 2/2
“admissible as evidence of any matter stated”, demonstrated
that the Act involved asking what it was that a party was
seeking to
prove. Section 115(3) of the Act imposed a crucial limitation on
the otherwise general expression “matter stated”. It was not
enough that the matter was stated. It was governed by the
hearsay rules only if one of the purposes of the maker was as set
out.
(2) Admission of evidence under s.114(1)(d) was not routine,
nor a matter of mere form; it required careful thought, having
due
regard to reliability and the opportunity to test it. There were
different rules applicable to hearsay; for example s.121 where
there
was multiple hearsay, the power contained in s.125 to stop a
case dependent on hearsay if the evidence was so unconvincing

that
a conviction would be unsafe and the general discretion under
s.126 to refuse to admit a statement on grounds of undue waste
of
time. If the maker(s) of the communication was or were
unknown, that would be very relevant to whether their hearsay
evidence
ought to be admitted. While there might be some forms of
anonymous hearsay which were nevertheless admissible, such as
business records or the statement of an unidentified agent of the
defendant, the hearsay testimony of an anonymous witness
might well fail the interests of justice test of admissibility; an
example was, where the contents of an anonymous 999 call were
inadmissible as evidence that the facts reported were true.
In the instant case, the text messages in the case of T were not
hearsay as the matter which had been sought to be proved was
that the defendant was a supplier of drugs. That was a relevant
matter and the prime issue in the case was whether he was or
not.
The messages did not amount to or contain any statement that
he was. Even if they could be said to amount to an implied
assertion that he was, the purpose of the senders did not include
causing him or anyone else to believe that he was.
Further the messages justified the conclusion that there was an
existing relationship of buyer and seller between the senders
and
the defendant. For similar reasons, the text messages in the case
of the other defendants were not hearsay. Accordingly they had
been rightly admitted.
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People v. Price, 54 N.Y.2d 557 (1981)Williams v. New York,
337 U.S. 241 (1949)
People v. Marte, 53 N.Y.2d 241 (1981)
Tripp v. Williams, 39 Misc.3d 318 (2013)
Fuentes v. Tucker, 187 P.2d (Cal. App. 1947)
IRAC
What is it?
· Issue, Rule, Analysis, Conclusion
· Method for organizing legal analysis so that the reader can
follow your argument
How to do it?
As an example, we will look at whether someone can sue for
battery as a result of inhaling second-hand smoke. The issue we
will look at is whether there is contact, which is required for a
battery claim.
Issue
· First state the question or problem that you are trying to
answer (what might bring the parties into court). This can be in
the form of a question or a statement depending on what your
reader prefers. Examples:

· “There is an issue as to whether contact occurred when the
plaintiff inhaled the second-hand smoke.”
· “Does contact occur when one inhales second-hand smoke
created by another?”
Rule
· State the rule or legal principle. This may take the form of
stating the elements required for a prima facie case.
· “The prima facie case for battery requires the following
elements: an act, intent, contact, causation, and harm.”
Analysis
· This is where you state your evidence and explain how you
will arrive at your conclusion. You may cite other cases,
discuss policy implications, and discuss (discount?) cases that
run counter to your conclusion.
· Make sure that you weigh both sides and make
counterarguments where appropriate.
· Use case law, analogizing and distinguishing, and policy (for
example, the goals of tort law) to work your way to a
conclusion.
· “In Howe v. Ahn, the court held that noxious bus fumes
inhaled by a passerby constitute harmful and offensive contact.
Although the court has not extended this holding to a case
involving second-hand smoke, numerous cases have likened
second-hand smoke to air pollution (for example, Fox v.
Abernathy). Policy considerations also favor finding contact in
the present case. If one can prove harm as a result of inhaling
second-hand smoke, it is better for the smoker to compensate
the victim than burden the state.”
Conclusion

· “The court is likely to find that harmful contact occurs when a
smoker releases second-hand smoke into the air and that air is
inhaled by a bystander.”
Exercise:
Amanda has a long history of narcolepsy. She has tried all sorts
of remedies from caffeine pills to doing jumping jacks every ten
minutes to stay alert. After falling asleep during a law school
final, she decided to see a doctor for some professional advice.
The doctor prescribed “Stay Awake” medicine. The medicine
seemed to work well and Amanda didn’t have any more
embarrassing ‘naps’ in class. Two months later, Amanda was
riding her scooter home when she fell asleep behind the
handlebars. She then crashed into Felix. Felix decides to sue
Amanda for negligence. What result?
How to Brief a Case Using the “IRAC” Method
When briefing a case, your goal is to reduce the information
from the case into a format
that will provide you with a helpful reference in class and for
review. Most importantly,
by “briefing” a case, you will grasp the problem the court faced
(the issue); the relevant
law the court used to solve it (the rule); how the court applied
the rule to the facts (the
application or “analysis”); and the outcome (the conclusion).
You will then be ready to
not only discuss the case, but to compare and contrast it to other
cases involving a similar

issue.
Before attempting to “brief” a case, read the case at least once.
Follow the “IRAC” method in briefing cases:
Facts*
Write a brief summary of the facts as the court found them to
be. Eliminate facts that are
not relevant to the court’s analysis. For example, a business’s
street address is probably
not relevant to the court’s decision of the issue of whether the
business that sold a
defective product is liable for the resulting injuries to the
plaintiff. However, suppose a
customer who was assaulted as she left its store is suing the
business. The customer
claims that her injuries were the reasonably foreseeable result
of the business’s failure to
provide security patrols. If the business is located in an upscale
neighborhood, then
perhaps it could argue that its failure to provide security patrols
is reasonable. If the
business is located in a crime-ridden area, then perhaps the
customer is right. Instead of
including the street address in the case brief, you may want to
simply describe the type of
neighborhood in which it is located. (Note: the time of day
would be another relevant
factor in this case, among others).
Procedural History*
What court authored the opinion: The United States Supreme
Court? The California
Court of Appeal? The Ninth Circuit Court of Appeals? (Hint:

Check under the title of the
case: The Court and year of the decision will be given). If a
trial court issued the
decision, is it based on a trial, or motion for summary judgment,
etc.? If an appellate
court issued the decision, how did the lower courts decide the
case?
Issue
What is the question presented to the court? Usually, only one
issue will be discussed, but
sometimes there will be more. What are the parties fighting
about, and what are they
asking the court to decide? For example, in the case of the
assaulted customer, the issue
for a trial court to decide might be whether the business had a
duty to the customer to
provide security patrols. The answer to the question will help to
ultimately determine
* This applies to case briefs only, and not exams. Use the IRAC
method in answering
exams: Issue/Rule/Analysis/Conclusion.
whether the business is liable for negligently failing to provide
security patrols: whether
the defendant owed plaintiff a duty of care, and what that duty
of care is, are key issues in
negligence claims.
Rule(s):
Determine what the relevant rules of law are that the court uses
to make its decision.

These rules will be identified and discussed by the court. For
example, in the case of the
assaulted customer, the relevant rule of law is that a property
owner’s duty to prevent
harm to invitees is determined by balancing the foreseeability of
the harm against the
burden of preventive measures. There may be more than one
relevant rule of law to a
case: for example, in a negligence case in which the defendant
argues that the plaintiff
assumed the risk of harm, the relevant rules of law could be the
elements of negligence,
and the definition of “assumption of risk” as a defense. Don’t
just simply list the cause of
action, such as “negligence” as a rule of law: What rule must
the court apply to the facts
to determine the outcome?
Application/Analysis:
This may be the most important portion of the brief. The court
will have examined the
facts in light of the rule, and probably considered all “sides”
and arguments presented to
it. How courts apply the rule to the facts and analyze the case
must be understood in order
to properly predict outcomes in future cases involving the same
issue. What does the
court consider to be a relevant fact given the rule of law? How
does the court interpret the
rule: for example, does the court consider monetary costs of
providing security patrols in
weighing the burden of preventive measures? Does the court
imply that if a business is in
a dangerous area, then it should be willing to bear a higher cost
for security? Resist the
temptation to merely repeat what the court said in analyzing the

facts: what does it mean
to you? Summarize the court’s rationale in your own words. If
you encounter a word that
you do not know, use a dictionary to find its meaning.
Conclusion
What was the final outcome of the case? In one or two
sentences, state the court’s
ultimate finding. For example, the business did not owe the
assaulted customer a duty to
provide security patrols.
Note: “Case briefing” is a skill that you will develop throughout
the semester. Practice
will help you develop this skill. Periodically, case briefs will be
collected for purposes of
feedback. At any time, you may submit your case brief(s) for
feedback.
USING THE I-R-A-C STRUCTURE IN WRITING EXAM
ANSWERS
The IRAC method is a framework for organizing your answer to
a business law essay
question. The basic structure is: Issue, Rule, Analysis, and
Conclusion. Using this simple
framework for structuring your answer will ensure that you have
written a complete answer.
Issue Begin your answer by stating the issue presented by the
essay question.

Sometimes the question will provide the issue for you. If not,
then ask: What is
the legal question that, when answered, determines the result of
the case? The
issue should be stated in the form of a question in a specific,
rather than general
form: “Is there an agency relationship if there was no
compensation paid?”
would be an acceptable issue. “Will the plaintiff win?” would
not be acceptable.
Note that the issue may be case specific, mentioning the parties’
names and
specific facts of the case. Example: “Did Jones have an agency
relationship with
XYZ Corp. due to his acting on behalf of XYZ and following its
instructions?”
The issue can encompass all cases which present a similar
question. Example:
“Is an agency created whenever there is an employment
relationship?” Most
cases present one issue. If there is more than one issue to
address, then you must
write a separate IRAC analysis for each issue.
Rule The rule describes which law or test applies to the issue.
The rule should be
stated as a general principal, and not a conclusion to the
particular case being
briefed. Example: “An agency relationship is created when
there is an
agreement that the agent will act for the benefit of the principal
at the principal’s
direction or control regardless of whether compensation is paid”
would be an

acceptable rule. “The plaintiff was the defendant’s agent”
would not be an
acceptable rule. Do not use parties’ names or specific facts
from the case. Hint:
Frequently, the rule will be the definition of the principle of law
applicable in the
case. Example: An agent may not use or disclose confidential
information
acquired through the agency absent an agreement to the
contrary.
Analysis The analysis is the most important, and the longest,
part of your answer. It
involves applying the Rule to the facts of the problem or
question. You should
use the facts to explain how the rule leads to the conclusion.
Discuss both sides
of the case when possible. Important: Do not merely state a
conclusion without
also stating reasons for it. A conclusion without reasons or
explanation means
that you have not used the rule and the facts to analyze the
issue. Hint: The rule
can be used as a guide in your discussion. Example: Suppose the
issue is
whether A is an independent contractor. Using the facts of the
case, explain
whether or not they fit into the definition of what is an
independent contractor:
“In this case, A was told by the foreman what to wear, how to
operate the
machine, and when to report to work each day, giving her little
control over the
job.” If the rule is a test with multiple factors, then you must

analyze each factor
by pointing out how the facts do (or do not) fulfill each factor.
Conclusion The conclusion is your answer to the Issue. State
the result of your analysis.
Examples: “Smith is liable for negligence” or “Therefore, no
valid contract was
formed between X and Y.” If there are multiple issues, there
must be multiple
conclusions as well.
SAMPLE IRAC ANALYSIS
Caroline was employed as a receptionist for ABC Corporation.
Her desk was located
at the entrance of the corporate office and her duties were to
greet customers, answer
telephone calls, sort mail, and respond to general requests for
information about ABC. One
day, while all of the managers of ABC were out of the office, a
representative of XYZ
Insurance Co. stopped by to solicit ABC as a new client. He
told Caroline that he wanted to
find out whether ABC might be interested in canceling its
present employee health insurance
plan and adopting a plan provided by XYZ. Although Caroline
explained that none of the
ABC managers were in the office, the XYZ representative
nevertheless described his

company’s health insurance plan in detail. When Caroline
reacted by stating that XYZ’s
plan sounded better than the current ABC plan, the XYZ
representative immediately
produced a contract for Caroline to sign. Reluctantly, Caroline
signed the contract accepting
the offer to adopt XYZ’s insurance plan. If XYZ seeks to
enforce the contract against ABC,
is ABC bound to the contract?
ANSWER
Whether the insurance contract is binding on ABC Corp.
depends on whether A had actual or apparent authority to
enter into it. Actual authority is the agent’s power or
responsibility expressly or impliedly communicated by the
principal to the agent. Express actual authority includes the
instructions and directions from the principal, while implied
actual authority is the agent’s ability to do whatever is
reasonable to assume that the principal wanted the agent to
do to carry out his or her express actual authority. Here,
Caroline’s express authority was to answer phones, direct
messages, collect and sort the daily mail, greet visitors, and
schedule appointments for the company managers. Her
implied authority was to do anything reasonably related to
performing those duties. She was not given any express
authority to sign contracts, and signing contracts was not
related to or implied in her duties as a receptionist.
Therefore, Caroline had no actual authority to bind ABC to
the contract.
Apparent authority arises when the principal’s conduct, past
dealings, or communications cause a third party to
reasonably believe that the agent is authorized to act or do
something. In this case, ABC did not communicate to XYZ

that Caroline had authority to enter into an insurance
contract, and no facts suggest that ABC and XYZ had done
business in the past. The nature and typical responsibilities
of Caroline’s position as a receptionist does not make it
reasonable for the XYZ representative to conclude that she
was empowered to select and approve health insurance
plans for ABC’s employees. Thus, Caroline had no
apparent authority to authorize the contract. Because
Caroline did not have either actual or apparent authority to
sign the contract, it is not binding on ABC Corp.
EXPLANATION
First, the main issues to be
addressed are stated.
Next, the applicable rules of law
or legal tests to be used in
analyzing the issue are explained.
The rule of law or legal test is
applied to the facts. Note that the
facts are not merely repeated;
rather, they are linked to elements
of the rule or test as evidence to
explain and justify the ultimate
conclusion that there is no actual
authority.
Conclusion as to the first issue.
The general rule of law to be
applied in analyzing the next
issue is stated.

The rule is applied to the facts.
Note that the facts mentioned are
those that relate to the definition
of apparent authority.
Conclusion for the second issue.
An overall conclusion is reached
as to the issue of liability.

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