202303262 B1 - [2025] EWCA Crim 1163

The judge’s rulings: 4 - the NVIDIA threat intelligence report:

The defence opposed the admission of exhibit DR/15 (see paragraph 15(i) above) on the ground that it contained screen shots from chat rooms, which were anonymous hearsay and did not come within the provisions of s117 of the Criminal Justice Act 2003.

The judge observed that the defence could not realistically dispute that the cyber attacks had taken place. The central issue for the jury was whether the prosecution could prove that either of the accused took part. The judge therefore accepted that the evidence of the company witnesses was crucial to the prosecution case, but held that it was not the sole or decisive evidence. She ruled that exhibit DR/15, and similar material exhibited by a prosecution witness who represented Uber, was admissible, for the following reasons.

First, the judge accepted the prosecution’s submission that the evidence was not hearsay: the company witnesses were authorised to speak as officers of the companies concerned, and they were entitled to give evidence both from their own knowledge of the relevant events and from the investigative work of other employees and the business records of the company.

In the alternative, if the evidence was hearsay, the judge ruled that it was admissible under s117 and/or s114 of the 2003 Act. As to the former, she adopted the six-step approach indicated in R v Riat and others [2012] EWCA Crim 1509. She held that the material comprised business records within the provisions of s117. She noted in particular that the evidence came from senior employees who had the responsibility of understanding and dealing with the immediate threat posed by the cyber attack; that there was no evidence that the response was made in contemplation of criminal proceedings; that s117 allows for multiple hearsay, and does not require the court to be satisfied as to the identity of the maker; and that there was material to enable the jury to assess the reliability of the evidence.

As to the latter, the judge ruled that the evidence was in any event admissible in the interests of justice pursuant to s114: the probative value of the evidence was high; it was fundamental to the presentation and understanding of the case; the circumstances in which the statements were made were not such as to cause the contents to be unreliable; and the company witnesses could be cross-examined about the underlying material.

Finally, the judge ruled that the admission of the evidence would not cause such unfairness that it should be excluded.