ON APPEAL FROM THE OXFORD COUNTY COURT
HHJ HARRIS QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HOOPER
LORD JUSTICE MUNBY
| (1) JAMES LAVELLE (A minor)
(2) MEGAN LAVELLE (A minor)
(By their mother and litigation friend, Michelle Lavelle)
|- and -
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Mr Augustus Ullstein QC (instructed by Le Port & Co) for the Respondents.
Hearing date: 24th March 2011
Crown Copyright ©
LORD JUSTICE HOOPER :
A metal dumb-bell bar with threaded ends was used as a weapon on the deceased's head to inflict the fatal wounds. The third defendant was seen to have held it.
suchthe second assault and battery, the 1st , 2nd and3rd Defendant [Leslie Gibbs] falsely imprisoned the deceased in order that he was rendered defenceless to theirthe violent blows. The third Defendant subsequently said 'I've killed him, I've killed him.'
"... does not affect the admissibility of the evidence but may be taken into account by the court—
(a) in considering the exercise of its powers with respect to the course of proceedings and costs, and
(b) as a matter adversely affecting the weight to be given to the evidence in accordance with section 4."
"The court may use its power under this rule to exclude evidence that would otherwise be admissible."
"But it would be a strong thing indeed to use such case management powers to exclude the admissible evidence of one of the parties on the central facts of the case. There may be circumstances in which this could be done."
"23. After the match had ended, we went back to our room at the Cricketers Arms. I had met a female at The Elephant and Castle that I was hoping to meet up with a bit later on and as I was still in my work clothes, decided to have a quick wash in the bathroom. The bathroom was situated two floors below our room. It took me around 15 minutes or so to brush my teeth and have a wash.
24. When I came out of the bathroom after having had my wash, the Landlady [the fifth defendant] was standing at the top of the stairs looking rather unhappy and mumbled something inaudible which sounded like "you'll have to leave now…". Of course I had no idea what was going on at this time. However on proceeding up the stairs, I heard a fight going on inside one of the rooms, nearby where the Landlady was situated.
25. I ignored this and made my way back to our room on the top floor. On arriving in our room, to my surprise, I discovered that Kevin was not there. I put my wash bag and towel away and then went back downstairs to see whether I could find out where Kevin had got to. On reaching the floor below, the Landlady was still stationed outside the room where the fight was going on. As she once again gave me what I thought was a 'dirty look' I decided to find out just what exactly was going on inside the room. The door was open and so I went inside. When I got inside, I found a number of the Welshmen, who were also staying at the Cricketers Arms, on top of Kevin. Kevin was on the floor and the Welshmen were hitting him. It looked like they had been hitting him for some time. My first instinct was to help my friend, who was obviously in need of help. I pulled one of the Welshmen off Kevin and he started to tussle with me. After that I managed to break free and so did Kevin. Kevin got up and we went straight back to our own room. When we got back to our room, I asked Kevin what had gone on but he told me that "it was nothing" and to "forget it"."
"26. Kevin had obviously been quite badly hurt in the fight. His face was all swollen up. One of his eyes looked like it was closing up. His mouth was also badly cut. I remember thinking at the time that he was in quite a bad way. There was no time to suggest that he get his injuries seen to and treated because the Welshmen had followed us up to our room and I could hear them outside our door.
27. I decided to try and get rid of them and so opened the door to speak to them. In the heat of the moment and because I was so angry for what they had done to my friend I might have shouted threats in an attempt to scare them off. They did not take kindly to this and instead started to fight with me again. I did not know what to do as there were so many of then and only two of us, with Kevin being in a 'bad way' already.
28. I could not defend myself against the sheer number of them and Kevin having heard the commotion came back out of our room to try and help. I somehow found my self being forced down to the lower levels of the establishment and was forced in to the bathroom. I cannot remember exactly how may of then were fighting with me at that point but it felt like I was being strangled. When they finally released their grip of me and I managed to break free, on exiting the bathroom, I noticed that Kevin was in the hallway outside and was obviously severely hurt. He was lying on his back and appeared to be unconscious. All of the Welshmen had stopped fighting and were just standing around him. One of them had a bar in his hands. I since found out that this was one of Kevin's dumbbell bars which was located in our room near the door and which they must have taken when they were at our room. I identified the man who was holding the bar later on in the criminal proceedings. I did not see him using the bar on Kevin but he was standing over Kevin holding the bar in a rather menacing fashion when I exited the bathroom."
"1. A review of the decision of HHJ Harris QC to refuse the claimant's application to rely upon the witness statements of Ceri Noble and Mr McCarthy.
2. Permission to rely upon the transcript of the evidence at the Coroner's Inquest or, in the alternative, an order that each of the defendants provide oral evidence.
3. In the alternative to 1 and 2, an order granting permission for Mark Kirk to give his oral evidence to the court on Friday, 29th January 2010.
4. In the alternative to 1, 2 and 3, an order adjourning the trial until the adjudication of an appeal concerning the court's refusal to grant our application under CPR 32.5 and an appeal should the court either refuse the claimant permission to rely upon the Coroner's transcript or refuse to order that the defendants to give [sic] oral evidence."
"THE CORONER: Now, witnesses have said that both outside the kitchen and in the kitchen you were saying, "I've killed him. I've killed him, and I've got two children." Did you remember saying that?
MR GIBBS: Sir, all I can remember was – here saying that if I'd done him wrong, I'd killed him in the restraint, sir, I'd lost – I had to fess up. But I can't remember the exact words I said, sir."
"17. There had been an application made on insufficient notice just days before the trial for the court's permission "to rely upon the transcripts of the Coroner's Inquest held on the 24th, 25th and 26th of March 2009." It appeared, on that occasion, that the claimants were seeking very late in the day, carte blanche to rely upon the record of the Coroner's proceedings, not just as an accurate summary of what was said but also as to the truth of some or all of what was recorded as said. When asked about this, Mr Askey indicated that he would like to be able to use the transcript to cross-examine the defendants. At that stage, at my initial suggestion but with the consent of all parties present, I indicated that there be leave to use the inquest transcript for the purposes of cross-examination without need for formal proof of the accuracy of the transcript. I understood all parties, including Mr Askey, to be content with that determination.
18. He now seeks a further order, as indicated, so as to use the transcript not for the purposes of cross-examination but as further independent evidence and it is now suggested in the body of the application that the only reason the claimants consented to the order that was made was that there had been: "…an agreement that the defendants would give their evidence."
This is not what took place. [Mr James does not argue to the contrary.]
19. It is most unsatisfactory that in a case of this nature care and thought had not been given long ago to consideration of what material should be available at trial and on what basis it should be before the court. Mr Askey in fact indicated that he had advised that there should be an application about inquest evidence in August 2009. There was in fact a PTR hearing on the 2nd of September 2009, when the trial date was fixed, but nothing appears to have been said then about the inquest transcript and no application in this connection was made until the 15th of January 2010 – heard on the 20th of January. The only explanation appears to be "failures" in the claimant's solicitor's office.
20. It might also be observed that there has been a criminal trial against the first defendant in which he was acquitted. Nothing has been done about admitting any evidence of or record of that either.
21. Notwithstanding the very real sympathy which the court naturally has for the position of the claimants, it cannot be appropriate to allow applications to admit evidence of this kind at this stage in the proceedings. To do so would in effect be to reconstitute the trial, which was all over bar the conclusion of the final parties' final speech. The need for evidence of this kind should have been appreciated months, if not longer, ago and the appropriate steps taken by way of discussion, agreement and if necessary application, well before trial."
"22. Next it was said that permission should be given for Mr Kirk to give evidence on Friday and the trial should be adjourned until then. Behind that, of course, was the hope that Mr Kirk would then be allowed to say what is not in his statement; that he saw the first defendant holding the bar over the Deceased. This would be the most vital and relevant part of his evidence and, of course, very important. A court is enjoined by CPR 32.5 to give permission for the amplification of witness statements:
"…only if it considers that there is a good reason not to confine the witness to the contents of his witness statement."
Significant leeway is in fact commonly allowed in permitting a witness to explain or expand upon his statement, but it is quite inexplicable why this evidence is of paramount importance was not in Mr Kirk's original statement. If it had been, it may well have established a strong prima facie case against the first defendant. But since it was not, it is hard to see what "good reason" there could be for allowing this vital evidence, which for some quite unexplained reason was not put in the statement, to be supplied now. It is said, of course, that the interests of justice and the fairness to the claimants could justify it. I repeat that I have great sympathy with the claimants, but their legal advisors have simply failed to prepare the case as they should. If Mr Kirk can identify the first defendant as the or a man with a bar, as in a letter sent to the court on the 27th of January he has said he can, then this should manifestly have been dealt with explicitly in his statement.
23. If leave was given to adjourn until Friday for Mr Kirk to be called and even supposing that he were permitted to amplify his evidence in the way suggested, it would then be that the first defendant and possibly other would need to consider their own stances and call evidence after all. An adjournment part-heard would then be needed for weeks or more until it was possible to continue the case to its conclusion, It would in fact be a second trial in all but name, and this would be wholly unsatisfactory.
24. Accordingly, I rejected the application to adjourn to allow Mr Kirk to arrive on Friday."
LORD JUSTICE MUNBY :
LORD JUSTICE PILL :