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Cite as: [2000] EWCA Crim 40

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DILLON, R v. [2000] EWCA Crim 40 (25th May, 2000)

Case No: 99/05617/X3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MANCHESTER
(HIS HONOUR JUDGE BURKE QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 25th May 2000

B e f o r e :
LORD JUSTICE HENRY
MR JUSTICE ALLIOTT
and
MR JUSTICE HENRIQUES
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	REGINA
	- and -
	MICHAEL JOHN DILLON

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Mark Rhind Esq (instructed for the Appellant)
Joseph Boyd Esq (instructed for the Respondent)
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Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE HENRY:

This is the judgment of the Court. On 27th August 1999 in the Crown Court at Manchester before His Honour Judge Burke QC, the appellant was convicted of aggravated vehicle taking (Count 1) and three offences of assault occasioning actual bodily harm (Counts 2, 3 and 4). Regrettably he has not yet been sentenced. He now appeals against conviction with the leave of the Full Court.

The outline facts were these. At about 4.15pm on the afternoon of Tuesday 13th March 1999 a Mr Webb, calling for a prescription in Worseley Road, left his motor car, a Honda Civic, with the keys in and the hazard lights flashing. He was away from his car for three or so minutes, and in that time it was taken unlawfully. Soon thereafter the police observed a stolen Honda Civic being driven dangerously in the Whitefield area of Manchester. After a high speed chase the car was stopped by police vehicles in Hollins Lane, and an attempt was made to remove the four occupants. PC Mathieson attempted to detain the driver, and PC Walton and PC Richardson attempted to detain the occupants on the passenger side of the car. But in the event, the driver of the stolen vehicle reversed backwards and then accelerated forwards in order to escape, and in doing so injured three of the officers. PC Richardson (Count 2) was trapped against a parked vehicle and knocked to the ground, the Honda drove over his foot and broke a bone. PC Walton (Count 3) lost his balance when the vehicle started to reverse, fell down and the wheel of the vehicle ran over his foot. PC Mathieson had smashed the driver's window, had reached in and grabbed hold of him by the top of his clothing. Just as he grabbed hold of the driver the vehicle shot backwards a foot or two, the driver shot forward and PC Mathieson let go of him, banging his shoulder and collarbone in the process (Count 4). There then followed a further high speed car chase. During that chase the vehicle was in sight of the police cars at all material times except a short period of time on which nothing turns. Significantly, the last four minutes and 33 seconds of the chase were recorded on video tape from a police helicopter overhead. A police officer in that helicopter was broadcasting a running commentary on the chase on the police radio band.

The car was finally abandoned on an estate; four men left the car, but none of the occupants left by the driver's door. The video showed that the first person to leave the vehicle left via the rear nearside door. The second person to leave left by the front nearside door, wearing a red jacket. That man was the appellant. The third person to leave the vehicle also left from the rear nearside door, and, some time later, the rear driver's-side door was seen to open and it is clear from the video that a figure dressed in dark-toned clothing left through that door. It could be safely deduced that that person had left the vehicle by that door, though he was not seen to do so. He was the last person to leave the vehicle.

Meanwhile, for some reason not elucidated in the evidence, the commentator from the helicopter had identified the appellant in his red jacket as having been the driver of the car. Accordingly, the helicopter tracked him into a public house and directed the police there, where he was arrested by PC Mathieson, who identified him as the man he had seen driving the car in Hollins Lane. He was the sole witness to identify the appellant, and no identity parade was held. No other police officer purported to identify the appellant, though a number of them spoke of the driver of the car having a red jacket. Not all of them had mentioned that in their original statements, and the defence was to suggest that those officers were relying on the commentary they had heard from the helicopter and not on anything that they had actually observed themselves. The appellant was the only occupant of the car that was caught.

From the first interview the appellant maintained that he was a passenger in the car. He gave evidence that he had sat in the front passenger seat throughout, wearing a red jacket over a white and green striped jumper. He was never the driver of the car. The Crown nailed their colours to the mast and set out to prove that he was the driver of the car at all times that it was under observation. The judge summed the matter up in this way:

"There is an offence of being a knowingly a passenger or being carried in a vehicle in the knowledge that it has been taken without consent. That is not what this case alleges. The allegation which the prosecution have nailed to the mast here is that the defendant was the driver. It is a matter for you, but it seems that this car was driven dangerously and the person who was driving it was responsible for assaulting these three police officers causing them some bodily injury. If you are satisfied that the defendant was the driver, [and] is guilty on Count 1, then he is guilty on the other counts, although you consider each one separately. If there is any doubt in your mind and you are not sure that he was the driver, not only is he acquitted of Count 1, but the other three allegations fall like dominoes behind it."

The jury, having heard the evidence, were satisfied that he was. There was evidence (that of PC Mathieson, supported by some evidence that the driver was wearing a red jacket) on which the jury could properly conclude that he was the driver. This evidence was met by the evidence of the defendant denying that he had ever been the driver and confirming that at all times he was wearing his red jacket.

The Crown disclosed the video taken from the helicopter. This went before the jury. It was available to them in their room when they retired. It is a film that we have seen, in the form the jury saw it. That was with a facility to stop it at any moment to examine the image, and with all normal enhancements. The point was made at the trial that it could be seen that the front seat passenger (who had fully wound down the nearside window) was wearing a red jacket throughout, because that gave what was described as a reddish tinge to the image seen on the video. But the jury did not have available to them any specialist equipment or expert evidence (such as the exact time of each frame) in interpreting the video. This was because such evidence had not been obtained.

After the conviction the defence instructed an expert in the process image analysis to assist in the interpretation of the video. This is a relatively new brand of expertise which sometimes will assist the Court. It did here. The Full Court gave leave to appeal on the basis of an expert's report from Mr Michael Farrow, giving leave to introduce it as additional evidence under Section 23 of the Criminal Appeal Act, 1968.

With the benefit of Mr Farrow's assistance and equipment we were able to get much more from the video than we had when, like the jury, we viewed it without the expert assistance. In particular, we were persuaded that the person seen wearing the red top remained in the passenger's front seat of the vehicle between when it was first video-taped at 16:26:25 and when it came to rest five minutes later at 16:31:25. This was established by six frames in which the red jacket could be clearly seen on the sill of the nearside front window at 16:27:02, 16:27:03, 16:27:06, 16:27:39, 16:28:15 and 16:28:16.

Further and significantly, in the middle of those frames there was a frame timed at 16:27:34 where there was a good view of the driver's side of the motor car. The driver's face was a white patch seen through the driver's side front window, which in agreement with Mr Farrow we regarded as probably being a white face against a dark background, the background probably being explained by the driver wearing dark toned, or possibly black, clothing. There was none of the reddish tinge which all the equivalent photographs of the passenger seat had shown.

It seems that the Crown recognise that the video showed that the passenger had the red jacket throughout the time of the observation. Their case was not that the video, properly understood, showed that the driver was wearing red - it clearly did not. Their case on the appeal was that:

"The helicopter camera operator followed the driver (Dillon) as the occupants burst out of the car. He was shrugging on his red jacket as he came out (these thieves were aware that they might be video'd and switched clothing during the case)."

So the theory advanced by the Crown was that:

1) the defendant was the driver in the driver's seat wearing a red jacket when the car was stationery at Hollins Lane;
2) that during the first part of the high speed chase (when the car was apparently under control though driven much too fast and dangerously), the appellant was getting out of the jacket to give it to the passenger to display;
3) when the car finally came to a stop, the front passenger climbs over the back of his seat into the back, as the previous occupant abandons it, leaving the car as the video shows, the appellant moves from the driver's seat over to take his place in the front passenger seat and puts on the jacket, and leaves by that door, followed by the person who had vacated the front seat for him.
4) Lastly, a good deal after the others, the rear offside passenger leaves.

We regard that explanation as simply incredible. The video shows that whenever the passenger seat can be seen, the red tinge of the arm on the sill can be seen, while when the driver is seen, he is wearing something black or dark-toned. At no time was the car driven erratically, as one would expect if the driver was shedding a red jacket. The appellant was the second man to leave the car. He was not pulling on the red jacket as he left.

Here the fresh evidence is relevant and credible, and in the light of it we cannot be sure that the jury would have convicted had they had the benefit of this additional evidence. We do not order a retrial because the appellant has been in custody since the date of the offence, and still has not been sentenced.