England and Wales Court of Appeal (Criminal Division) Decisions

97/3023/Z5

Royal Courts of Justice

The Strand

London WC2

Monday 6 April 1998

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND

(Lord Bingham of Cornhill )

MR JUSTICE BRIAN SMEDLEY

and

MR JUSTICE THOMAS

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R E G I N A

- v -

MICHAEL HARRY ROBERTS

JASON LEE ROBERTS

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Computer Aided Transcription by

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MR S S B BASSRA appeared on behalf of BOTH APPELLANTS

MR B KEALY appeared on behalf of THE CROWN

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J U D G M E N T

(As Approved by the Court )

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THE LORD CHIEF JUSTICE: In March 1997 these two appellants stood trial in Leeds Crown Court before His Honour Judge Grant and a jury on an indictment containing three counts. All three counts related to events which took place late in the evening of Saturday, 16 September 1995 in the centre of Leeds. Count 1 charged the appellants with assaulting and so causing actual bodily harm to Richard Rowe. They are said to have done this outside the General Elliot public house. On this count both appellants were acquitted by the jury. The detailed facts therefore play no part in this appeal.

The incident at the General Elliot was however the prelude to what followed. As a result of it four men, PC Winterburn, Mr Hoggarth (the publican of the General Elliot), a Mr Wood and a Mr La-Bad set off to look for the appellants. They found them in a McDonald's restaurant in Briggate. There, according to the prosecution, the appellants committed the offences charged in counts 2 and 3 of the indictment. Count 2 charged the appellants with affray, contrary to section 3(1) of the Public Order Act 1986. This was based on their conduct in McDonald's. Both appellants were convicted. Another man charged on that count was acquitted by the jury.

Count 3 charged both appellants only with common assault contrary to section 39 of the Criminal Justice Act 1988. The particulars of the offence were that the appellants had assaulted Andrew Winterburn, the police constable who had followed them from the public house, by beating him.

The judge explained the prosecution case to the jury in the course of his summing-up when he said:

"In this case what is said is that Jason Roberts punched the officer, twice, and struggled with him, and it is said that at this time Michael Roberts kicked the officer twice, once at the top of [the] steps, if you remember, where the railings are, and once whilst he was underneath his brother Jason, at the bottom in the stairwell. That has to be a deliberate assault, the application of force to another person, and that has to be unlawful...."

At McDonald's there were two incidents. The first began when PC Winterburn arrived at the restaurant. He went up to the appellant Michael Roberts who was standing at the window and said he was arresting him. The appellant replied, "Yes, all right," but then ran out of the side door of the restaurant into Boar Lane. After running some 50 or 75 yards however he fell and the police constable was then able to pick him up and handcuff him. At that time he struck him on the legs with his baton and told him to behave himself. He then took him back to the McDonald's restaurant.

The second incident involved the appellant Jason Roberts. He was at the head of a queue buying food. The police constable went up to him and told him that he was arresting him. The appellant wanted to pay for his food, which he was allowed to do, and then went towards the door out into the street. There were before the jury differing accounts of what happened next, but it is quite plain that something of a fracas broke out and that the appellant Jason Roberts and the police constable ended up on the floor.

The prosecution account was that the police were trying to arrest men thought to be responsible for the earlier incident and used no more force than was necessary. The defence case however, which received some support from those present other than the appellants, was that the police were using excessive force, and it seems that some of those in the restaurant took the side of the appellants against the police and may indeed have contributed to the general disorder.

On the day after this incident, 17 September, PC Winterburn made a written statement. Unknown to him there was a video camera operating in the restaurant and the appellant Michael Roberts, when interviewed by the police, mentioned the probability of such a camera. He proved to be correct and a video was obtained. This gave rise to some practical difficulties. The trial was due to take place in August 1996, by which stage there were only still photographs available. It appears that, for technical reasons, the video required very high quality apparatus in order to project it and such apparatus was at that stage not available. It was however thought desirable to procure it so that the video could be shown to the jury at the trial since the video was recognised to be much the most effective means of enabling the jury to understand what had happened at the restaurant. Arrangements were accordingly made to obtain such apparatus and to arrange to show the video to the jury.

On the eve of the trial in March 1997 prosecuting counsel asked for a detailed commentary on the video so that he could explain to the jury who was who, where the different events took place, and where the jurors should look on the video to see the crucial events. In answer to counsel's request PC Winterburn prepared a commentary on 8 March and the video was made available to the defence.

The trial opened on 10 March. At the outset of his evidence the police constable indicated that in certain respects the evidence which he would give would differ, as a result of seeing the video, from his original statement. In the course of the trial the video was repeatedly shown to the jury both in extenso and frame by frame. We have no reason to doubt that it played an important part in the jury's deliberations, as it clearly did in the evidence of the witnesses and the cross-examination.

That leads conveniently on to one of the major grounds argued on behalf of the appellants on this appeal. Mr Bassra, who has presented the appellants' case with great skill and judgment, submits that it is wrong in principle that the police constable should have been allowed to see the video at all, or alternatively that, if allowed to see it, it was wrong that he should be given the opportunity to make more than a further statement. He should not, it is submitted, have been allowed to retract or change the statement he had already given.

It appears to us that this submission and the present facts highlight a problem of practice which may well be of some significance, given the increased use and availability of video recordings of alleged criminal offences. Viewing the matter quite generally, it seems to us plain that the duty of any witness when giving a statement is to describe the relevant events to the best of his or her honest recollection and certainly not to invent or fabricate evidence to assist the prosecution or the defence. If, after the giving of such a statement, a relevant video comes to light, it is not in our judgment wrong in principle that the witness should be permitted to see that video. On seeing it the witness may find that in some respects his or her recollection had been at fault, and the witness may wish to correct or modify earlier evidence. It is however in our view a matter of the utmost importance that nothing should be done which amounts to rehearsing the evidence of a witness, or coaching the witness so as to encourage the witness to alter the evidence originally given. The acid test is whether the procedure adopted in any particular case is such as to taint the resulting evidence. It is, we would stress, necessary to preserve equality of arms so that facilities are not made available to the prosecution which are not made available to the defence. On the prosecution side we see no reason to distinguish between police and non-police witnesses. They should be treated the same.

Accepting, as we do, the account given by Mr Kealy who represents the prosecution of how the procedure came to be adopted in this case, we do not think that it involved any impropriety. The procedure adopted was not such as in itself to taint the resulting evidence. The video was made available to the defence and it was shown to defence witnesses before they gave their evidence. The police constable himself was directly challenged on discrepancies between his first statement and his commentary, and between his first statement and the video. Indeed his good faith was directly challenged. That was however an issue squarely before the jury who heard the evidence and saw the video, and it was pre-eminently an issue for them to resolve. We do not consider that the procedure adopted here involved unfairness to the appellants and there is in our judgment nothing which renders the convictions unsafe. We do however think that the growing use of video evidence merits detailed consideration of such evidence by the appropriate authorities with a view, after necessary consultation, to devising a code of good practice.

Secondly, Mr Bassra for the appellants complains that the police failed on the night of the incident to take names and addresses of persons present in the restaurant, and by so doing made it impossible for the defendants to trace, interview and, if so advised, call these witnesses. It was, he submits, an abuse of process which denied the appellants a fair opportunity to defend themselves.

It is in our judgment possible to imagine a situation in which the police, conscious that they have behaved improperly or that a charge against a defendant is not soundly based, deliberately refrain from taking names and addresses of witnesses so as to prevent the defence exposing their own wrong-doing or calling witnesses to support the defendant's denial of guilt. We would be very ready to accept that such conduct could amount to an abuse of process if a defendant was then charged and prosecuted. There will however be other situations in which the exigencies of the situation on the ground make it simply impracticable to obtain names and addresses of those present. Such, it is argued, was the situation here. The police were in a difficult situation on a Saturday night amid what appears to have been a hostile crowd. They were concentrating on trying to arrest the appellants for offences reasonably suspected of having been committed elsewhere. There is nothing to suggest that the police deliberately refrained from taking names and addresses for bad or ulterior reasons, and in considering the safety of the appellants' convictions we must remind ourselves that the jury did have the video record of what took place, incomplete and imperfect though this doubtless was.

Mr Bassra goes on to complain that the police failed to disclose to the defence the name and address of Mr La-Bad, whom we have already mentioned. He was a motorist who chanced to be passing the General Elliot, saw a figure on the ground, and saw people running away. He got out of his car, joined the police posse which set off in pursuit of the appellants, and was present when they were found in the restaurant. The police had the particulars of Mr La-Bad and asked him for a statement, but he refused to give one. His name appeared on the list of witnesses but was later crossed out, no doubt because of his unwillingness to give a statement. The prosecution accept that they should have disclosed the name and address of Mr La-Bad to the defence and it appears to have been an oversight that this was not done. There is nothing in the facts before us which suggests that it was other than an innocent oversight, and there is nothing which suggests that Mr La-Bad would have been any more willing to help the defence than he was willing to help the prosecution. It appears that Mr La-Bad may have had some distaste for the courts. He however appears in the video playing an inactive role. We share the view of the prosecution and the defence that the identity and the particulars of Mr La-Bad should have been disclosed to the defence, but we consider it most unlikely that this affected the course of the trial. It certainly does not in our judgment render these convictions unsafe. A slightly similar point is made on behalf of the appellants in relation to a Mr Wood. He was present in the General Elliot and was also part of the posse which followed the appellants to McDonald's. Unlike Mr La-Bad however his name appeared in the statements which were served on the defence. The police had no statement from Mr Wood, and when the defence instructed an inquiry agent they found it impossible to make contact with him. It appears that Mr Wood had gone to Ireland. In our judgment there was in this instance no failure on the part of the prosecution and again nothing which renders these convictions unsafe.

There were a number of other grounds of appeal deployed in the perfected grounds, but some of these have not been pursued following observations made by the single judge when granting leave, and some have been gracefully dropped in the course of argument. In the upshot, for reasons that we have given we find no reason to regard these convictions as unsafe and accordingly dismiss the appeal.

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