A document that says nothing — that shows something did not happen — can’t be a hearsay document.

That’s the gist of a decision by the UK’s Queen’s Bench Division of the High Court in DPP v Leigh [2010] EWHC 345 (Admin). The case isn’t on Bailii, but is (for the moment at least) available here on wikicrimeline.co.uk.

Mr Leigh was charged with failing to give the police information to identify the driver of a motor car involved in certain offences. That offence is similar to s 60 of the Road Safety Act 1986.

The prosecution wanted to tender business records from a police unit, purportedly showing no information was provided by the accused.

The accused objected that the evidence was hearsay.

The Court considered it wasn’t, because it didn’t assert anything.

[13] The record is of significance, but the significance lies not in what it says, but in what it does not say i.e. the fact that it says nothing. The entry in the record is demonstrating that someone has asserted that a reply has been given, but it is artificial to suggest that anyone by failing to put anything in the record concerning a particular individual is thereby seeking to assert that no reply has been given by that person. That is not the purpose behind their inaction in not recording a response that has not been made.

Here, s 59 of the Evidence Act 2008 defines hearsay similarly to the provisions considered in DPP v Leigh.

edit: I published this article first on our Evidence Act blog, and Jeremy Gans has already posted his thoughts about the case there.

Our Evidence Act Dictionary defines representation as including:

(a) an express or implied representation (whether oral or in writing); or

(b) a representation to be inferred from conduct; or

(c) a representation not intended by its maker to be communicated to or seen by another person; or

(d) a representation that for any reason is not communicated;

When you look at (b) and (c) and consider that the ‘representation’ truly being considered is that by the accused driver — albeit inferred through the police records, which of themselves say nothing relevant about the case — I think Jeremy’s right that here the hearsay rule would apply.