England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		20th June 2002

1. LORD JUSTICE KEENE: On 4th April 2001 at the St. Albans Crown Court before Miss Recorder Roscoe, the appellant was convicted of wounding with intent to do grievous bodily harm and was later sentenced to three years and ten months' imprisonment. He now appeals against conviction by leave of the single judge. That leave was granted on limited grounds and was refused in so far as the grounds concerned the summing-up to the jury. However, the application for leave on those latter grounds has been renewed before us today.
2. The charge against the appellant arose out of an incident at a nightclub in Watford in the early hours of 30th January 2000. A young man called Dean Neville received serious facial injuries almost certainly as the result of being struck in the face by a glass or a bottle. There was no dispute that there had been a fight at some stage between the appellant and Mr Neville. It was the prosecution case that the appellant had initiated the fight, at the foot of the stairs leading to the first floor of the club, by thrusting a glass or bottle into Mr Neville's face after a verbal disagreement between them and Mr Neville's cousin.
3. The appellant's case was that he was in no way responsible for the attack, using a glass or bottle, and that he indeed had been set upon on the dance floor by Mr Neville at a time when Mr Neville had already been injured. The appellant's shirt was extensively stained with Mr Neville's blood and at the club Mr Neville identified the appellant as the attacker. The issue for the jury was essentially whether Mr Neville's identification of the appellant as the person who had inflicted the wounds on him was correct.
4. The main evidence for the Crown came from Mr Neville himself. He said that he had been at the nightclub with his cousin, Robert Fowler. There was a brief argument between Robert Fowler and a man described by Dean Neville as being white, 19 to 20 years old, the same height or a little taller than himself, he being five foot ten inches, of average size and wearing a white shirt and dark trousers. When the verbal exchange finished Dean Neville began, he said, to follow Robert Fowler up the stairs but the man then asked Neville if he had a problem. Neville moved towards the man and said he did not. According to his evidence he was then hit by the man on the right cheek with an object which was sharp and solid such as a glass or bottle. That caused the main injury. He was then struck again with the object, this time above the left eye. Blood immediately started to flow. He said that the man who attacked him had been standing a couple of feet away to his right.
5. There were, in effect, two episodes of fighting. First, according to Neville's evidence, this attack at the foot of the stairs, after which he punched his attacker in the face. According to Dean Neville both he and his attacker went to the floor and struggled there. He said that he grabbed the attacker's hair and pulled him back so that he could see what had been done and he spat into his face and clothing. His mouth at this time kept filling with blood from the wound on his cheek. Then the attacker ran off onto the dance floor followed by Dean Neville whose left eye by now could scarcely see. His evidence was that he only lost sight of his attacker for a second on one or two occasions. On the dance floor there was, according to this evidence, a second episode of fighting. Dean Neville said that he punched the other man hitting him once only. The man fell. Neville was then held back by another man who took him to a doorman. He was then taken upstairs and given first aid by a member of the club staff. While he was being treated there another member of the staff brought in the appellant who Mr Neville recognised as his attacker. Indeed he identified him to staff who were present. The entire incident, according to Dean Neville, lasted about three minutes. After being treated at the club he was eventually taken to the hospital. There was no suggestion when he was examined there that he was drunk, although he appeared to be suffering from shock.
6. None of the other prosecution witnesses saw Dean Neville actually being struck by the glass or bottle. One, Douglas Dickens, described seeing two men punching one another near the stairs before hearing the sound of breaking glass. Another, Nicholas Barnard, also heard glass breaking and saw two men on the floor wrestling. A man called Rixon seems to have been the person who intervened on the dance floor and neither he nor any other prosecution witness spoke of seeing any fighting on the dance floor.
7. The appellant gave evidence at trial. His recollection of these events was very hazy, as he admitted, because he had been extremely drunk. His version of events was that he had been alone on the dance floor when he noticed a crowd gathering at the edge and he went over to see what was happening. He was then pushed by someone running past causing him to stumble and he was then spun around and attacked by one or more people whom he did not see. He was pushed to the ground and struck from behind with something he believed was a bottle. He found himself fighting with someone on the floor of the dance floor. Throughout this incident he was on the dance floor, and he was bleeding from a laceration to his ear and from his nose. He said that he eventually got away and saw that he was covered in blood. In due course he was taken to the first aid area. He denied hitting anybody with a glass or a bottle. According to his evidence, therefore, there was only one fight in which he was involved and that was on the dance floor.
8. There was no doubt that the appellant's clothes were bloodstained, the shirt extensively so both on the front and at the rear. Expert witnesses for the Crown and defence agreed that DNA profiling showed that the blood was Dean Neville's. The experts also found saliva stains on the front of the appellant's trousers containing a greater component of the appellant's DNA. The expert witness for the Crown accepted that the presence and distribution of the blood did not help as to whether it had been transferred while the two men involved were upright or on the ground. An expert for the defence said that the pattern of bloodstaining on the appellant's shirt indicated that there had been a fight between two people in close proximity which was more than merely transient.
9. During the trial there was an application by the defence for a stay on the basis that the proceedings were an abuse of process. This was rejected by the trial judge and it is that ruling which now forms the basis of the first ground of appeal for which leave has been given. The application for a stay was based on delay by the prosecution in disclosing various matters, and on the destruction of certain exhibits. The result of this was, it was said, prejudicial to the defence to a degree which meant that a fair trial was no longer possible. It was also submitted that it would be unfair in the circumstances to try the defendant. Those matters have been pursued before us today diligently by Miss Pinto on behalf of the appellant.
10. It is convenient to start with the submissions made on the delays in disclosure. This relates to some video tapes from CCTV cameras inside the club and to details of potential witnesses. Four videos had been seized on the night in question by the police. They were not supplied to the defence, despite requests and indeed a court order, until 16th October 2000. Even then two of them needed reformatting. Reformatted copies were supplied on 20th December 2000. According to the officer in the case, DC Gallagher, the videos showed nothing of relevance.
11. It is submitted by Miss Pinto that these videos should have been disclosed much earlier. She says that they might have assisted the defence by showing if anyone leaving the club had blood on them or answered Mr Neville's description of his assailant. She concedes that the videos did not show either the dance floor or the area near the stairs where the attack on Mr Neville took place. But, in addition, she submits that the lateness of the delivery of the videos delayed the trial which must have affected the memories of witnesses or potential witnesses. Consequently, the appellant was prejudiced in this respect.
12. Miss Arora for the prosecution tells us on this aspect that the defence were invited to view the videos on 19th July 2000 and that was not acted upon. It seems however that there may have been some misunderstanding about the invitation or the response to it; certainly there is a dispute as to whose fault it was that that invitation was not acted upon. Miss Arora admits that the Crown were in September 2000 directed to serve copies of the videos by 13th October 2000 and it failed to do so.
13. Allied to this criticism is a complaint about the late disclosure of the details of potential witnesses. One of these was Robert Fowler - Dean Neville's cousin - who had been present with him at the time when he was first attacked. It seems that the police did not take a witness statement from him because he had told an officer, DC Ingram, that he had been extremely drunk at the time and had seen nothing. The defence did not discover this until DC Gallagher gave evidence on the abuse of process issue during the trial. Miss Pinto tells us that the defence did not have Robert Fowler's contact details until 19th July 2000, although they did know his name earlier. However, even on 19th July, she accepts, they did not seek to contact him, the reason for that being that the defence did not expect Robert Fowler to be prepared to help the defence against his cousin who had been assaulted. In the event the complaint now advanced is not the delay in disclosing Fowler's address, but is rather to the effect that the police should have taken a witness statement from him shortly after the incident in question. As for other possible witnesses, the defence had the names which the police took at the club and had them, it seems, by the end of April 2000. But it is said that the defence only got some addresses in the summer of 2000 and others did not arrive until early 2001. As a result the defence enquiries were rendered less fruitful.
14. Miss Arora for the prosecution confirms that the addresses of five witnesses were provided certainly before 2nd June 2000. The remaining four, who had not provided witness statements available in the unused material, were provided on 12th February 2001. Nonetheless, she accepts that disclosure was not made in some cases where it should have been made and there was a breach of the applicable rules.
15. The appellant also relies under this heading of abuse of process on the destruction of certain exhibits. In October and December 2000 certain exhibits were destroyed by the police. The evidence did not clearly indicate on whose authorisation this was done but it is acknowledged by the prosecution that this should not have happened. The exhibits in question were a broken bottleneck found at the club after the incident, the defendant's shoes and socks and Dean Neville's clothing.
16. The evidence was that the broken bottleneck was examined forensically after it had been found and before trial. No blood or fingerprints were found on it. But it was not examined by the prosecution for traces of DNA. It is submitted on behalf of the appellant that the destruction of this broken bottleneck also prejudiced the appellant. In addition the defence, it is said, wanted to see Mr Neville's clothing to check it against his description of what he had been wearing that evening.
17. Generally in relation to all these matters Miss Pinto relies on both of the established bases of possible abuse of process. Not only was a fair trial not possible, she says, but because of the prosecution's serious failings, as acknowledged by the Recorder, it was not fair to allow this matter to proceed to trial. She relies upon some of the dicta in the case of Ebrahim [2001] 1 WLR 1293. We shall deal with this ground before turning to the other ground upon which leave was granted.
18. The principles applicable to abuse of process are well established and need no elaborate description in this judgment. The judge below rejected an allegation that the police had been acting in bad faith over the matters with which we are now concerned, although she did criticise them in round terms for inept and sloppy work. That finding of an absence of bad faith by the judge who heard witnesses on this topic is not one with which this court would readily interfere and indeed we are not invited by Miss Pinto on behalf of the appellant to seek to interfere with it. We proceed on the basis that there was here no deliberate manipulation by the police or prosecution of the pretrial processes.
19. It is true that there are dicta in the authorities to the effect that, even in the absence of bad faith, serious failings on the part of the police or prosecution may make it unfair to try an accused person. While there may be instances of such, it will in our judgment be rare for such cases to arise where there has not been serious misbehaviour on the part of those bodies as indicated by Lord Justice Brooke in the Ebrahim case at paragraph 19. He there describes the category of abuse of process to which we are referring as one where "the prosecutors have been guilty of such serious misbehaviour that they should not be allowed to benefit from it to the defendant's detriment." All of this envisages, normally, conduct involving some degree of deliberate manipulation of the pretrial process by the police or prosecution. Certainly the negligent failings of the police in the present case, thoroughly reprehensible though they were, fell far short of making it unfair to try this man.
20. That means that the question is whether what happened prejudiced the defendant in such a way that he could not receive a fair trial - what has been described in argument as the first potential basis for an abuse of process ruling: see R v Derby Crown Court ex parte Brooks 80 Cr.App.R 164 and the well known Attorney General's Reference No. 1 of 1990 [1992] QB 630. It is of course for the appellant to establish that such a situation exists.
21. So far as the videos are concerned, it is quite clear that there was late disclosure in this case and that there was a breach of at least one if not more court orders. However, that has to be seen in context, and in particular we are concerned to see whether any real prejudice was suffered by the appellant as a result. Those videos, as Miss Pinto conceded, did not show the dance floor or bar area. They were always, therefore, likely to be of very limited value even if they were clear in the film which they produced. The appellant's advisers did have these videos some three months before the trial began and yet there is no evidence that it was possible to see anything or anyone on them that would have assisted the appellant or weakened the Crown's case. Miss Pinto has conceded that in those videos no one was shown with blood on their clothes clearly enough for it to be of value to the defence and therefore the defence did not use the videos at trial. In essence they did not advance the defence case and the same is true about the possibility of identifying any possible attacker or witness from what could be seen on those videos. As the judge said in her ruling, this late disclosure did not deprive the defence of the opportunity of seeking to find further witnesses through the nightclub and she instanced certain methods which by this might be done.
22. It may be that the Crown's failings in respect of the videos caused some limited delay to the trial but this was not on a scale which could be said to make a fair trial impossible. As a consequence we can see no material prejudice to the appellant in this respect.
23. So far as the details of possible witnesses are concerned, the defence were of course aware of the existence and identity of Robert Fowler as soon as they received the witness statement of Dean Neville. He is named therein and the possibility that he might have been able to give relevant evidence is obvious. The fact is that the defence did not want to contact him because they assumed that he would be an unhelpful witness to him. Moreover, we can see no reason for the judge to have rejected the police evidence that Fowler had told DC Ingram that he was extremely drunk and did not see anything. This was something which apparently he said to that officer within a couple of days of the incident. In those circumstances there was, in reality, no point in the police taking a witness statement from him.
24. As for other witnesses, the defence had the names of those present by the end of April 2000 and, as we have indicated already, their contact details came at various times but overall, given the numbers involved and the dates to which we have referred, we cannot see that the appellant suffered any real prejudice from the police failings in this respect.
25. The destruction of some of the exhibits in October and December 2000 clearly should not have taken place and it is most reprehensible that that happened. Again, however, one needs to ask whether any material prejudice was suffered by the appellant as a result. There had been no request by the defence to examine any of these exhibits between January and October or December 2000. The broken bottleneck was found to have no blood on it. That in itself must immediately have cast some doubt on whether it was the weapon used on Dean Neville since he was cut twice by the glass or bottle in question and bled profusely and very quickly. So even if DNA analysis established that someone other than the appellant had drunk from the bottle or glass in question it would have been of limited significance. But in any event the defence never sought to do its own DNA analysis of it. It made no such request, even though it knew of its existence, at any time before trial. That in our judgment tells its own story.
26. As to the clothing of the complainant, that was only wanted, so we are told, to compare with Dean Neville's description of what he was wearing on this night. That again does not seem of real importance. Neville gives no description in his witness statement of what he was wearing, nor is any such description referred to in the summing-up.
27. Putting all these matters together and treating them, as one should, cumulatively under this heading of abuse of process, this court cannot see that this was a case where a fair trial was not possible. It is quite wrong for the police to destroy exhibits, as happened here. The history of the late delivery and disclosure of certain items is one of considerable ineptitude. But in our judgment the learned Recorder was right to conclude that there was here no abuse of process. We can find no fault with her ruling on that topic.
28. The other ground on which leave was given was that the judge wrongly rejected a submission of no case to answer at the close of the Crown's case. It is said that this ruling did not observe the guidance given in Galbraith 73 Cr.App.R 124 as explained in Turnbull 63 Cr.App.R 132. The only identification evidence came from Mr Neville and although he expressed himself as 100 per cent sure of his identification, there were a number of obvious difficulties. The lighting in the club was dim and on the dance floor there were coloured flashing disco lights. This was a brief incident. Once Dean Neville's left eye had been cut his vision was impaired, sometimes partially, sometimes completely. Between the first episode of fighting and the incident on the dance floor, he, according to his own evidence, lost sight of his attacker for a second a couple of times. This was a club which was crowded and contained many young, white men. Mr Neville did not in fact see what was used to injure him, he could only say it was a sharp and solid object. He described his attacker in the way which we have referred to, including saying that he thought that he had a white shirt and dark trousers but he did not describe his face. In evidence he said that he recognised the man on the dance floor "because he had my blood all over him." He had never said that in his witness statement or at any earlier stage.
29. Therefore it is submitted by Miss Pinto that there was here a clear need for supporting evidence if the Crown's case was to go to the jury. In addition she submits that there was no corroboration of Dean Neville's identification of the appellant. It is said that the Recorder was wrong to regard the evidence of blood on the appellant as providing such support. The experts saw the blood as compatible with either version of events - the one given by Dean Neville or the one given by the appellant. Reliance in this respect is placed on that familiar passage from Turnbull at page 138:

"When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification."

30. As we have indicated, it is the submission on behalf of the appellant that there was no such supporting evidence in this case.
31. For our part we accept that the circumstances in which Mr Neville made his identification were far from easy or straight forward. This was a short-lived incident in lighting conditions which were unhelpful to accurate observation and in other circumstances which could give rise to some risk of error. On the other hand, there were factors which strengthened a possible acceptance of the accuracy of his identification. Dean Neville was close to his attacker, a couple of feet away, when he was first struck. The two men, on his evidence, then struggled together on the floor near the foot of the stairs. His vision in his right eye was not impaired at all - he managed after all to knock his assailant down. He only lost sight of him en route to the dance floor for a second once or twice. Dean Neville did give evidence that the person he punched on the dance floor was already bloodstained before he got to him on that occasion and it was clearly open for the jury to accept that evidence. The evidence was also that Dean Neville was not drunk. Moreover, it is of importance that the appellant's shirt was heavily stained front and back with Mr Neville's blood. The evidence at the close of the prosecution's case from Mr Neville was that he had only punched the appellant once during the second incident, that is to say the one on the dance floor. On that basis it would be difficult to see how the appellant's shirt got so heavily stained with Mr Neville's blood unless he had been involved in the first incident as well.
32. There was also some negative evidence from the prosecution witnesses in the sense that none of them described seeing any fight on the dance floor. Most of them were not on the dance floor but David Rixon who was and who was the man who intervened and pulled Mr Neville back, described no fight on the dance floor. He noticed nothing until someone pushed past him and knocked him.
33. In any event at the half way stage when this submission had to be considered, the blood stains on the appellant's shirt, front and back, did in our judgment give support to the identification given by Dean Neville. It is important to recognise that apart from giving evidence identifying the appellant, Dean Neville gave other evidence which, if accepted by the jury, supported his identification. He gave, after all, an account of the sequence of events and of what happened on the dance floor. This was not identification evidence; it was evidence about the events which took place. This included, first of all, seeing a man on the dance floor with blood stains on him before he, Dean Neville, struck that man in the second incident - that man clearly being the appellant. Secondly, Dean Neville's evidence was that he struck only one blow at that second stage with no evidence of the two of them then being on the floor together in a way which could account for the appellant's bloodstains front and back. These matters were not so much a question of the reliability of the complainant's identification of the appellant as his attacker, as of the complainant's credibility as a witness. It was therefore a matter for the jury to decide if they believed this account which Dean Neville gave, but if they did believe it, it supported the identification of the appellant by him. As we have said, the bloodstains on the appellant's shirt front and back were also consistent with the account given by Dean Neville.
34. On the basis of all this evidence, it seems to us that there was support for his identification of the appellant and for that reason we conclude that there was here a case properly to go to the jury. On neither, therefore, of the grounds on which leave was given to appeal against this conviction can we see any basis for concluding that this conviction was unsafe.
35. We turn finally to the grounds of appeal for which leave was refused by the single judge which have been renewed before us today. These relate to the summing-up of the learned Recorder. It is said in general terms by Miss Pinto that there were significant failures in the summing-up and that the Recorder failed to give to the jury the assistance which they deserved and needed.
36. First of all, it is contended that it is very important that a judge differentiates clearly between his or her role and that of the jury and clearly distinguishes the directions of law from those about findings of fact. Miss Pinto submits that this particular summing-up was a mixture of both without distinctions between them being clearly drawn to the jury's attention. Consequently the jury would have been unclear as to what was a direction that they had to follow and what was merely judicial comment about the evidence.
37. We have read the summing-up with care. It seems to this court that the summing-up is reasonably clear. The Recorder dealt with the law in general at the beginning of her summing-up. She then moved to deal with the facts and made it clear by her introduction to the evidence that she was dealing with the facts, particularly those relating to who the attacker was and whether they could be sure that the attacker was the appellant. Finally, at the end of the summing-up, she moved on to dealing more specifically with what amounted to grievous bodily harm and to the law dealing with intent.
38. She did, it is true, give directions at appropriate places when dealing with the evidence on such matters as identification evidence, but we can see no weakness in so doing. It was appropriate to direct the jury's attention to those aspects at the appropriate point in the course of that summing-up, and it seems to us that it would have been perfectly clear to the jury what she was telling them they had to do and what she was saying by way of a summary of the evidence.
39. The second criticism advanced of the summing-up concerns the directions as to identification. It is argued that the Recorder failed to apply the level of care required of her in directing the jury on this aspect of the case. It is said that there was a failure specifically to identify the weaknesses in the identification evidence and to list the points which did not support the correctness of that identification. Nonetheless, Miss Pinto concedes that the Recorder did draw attention to the main weaknesses of the identification evidence. However, it is argued that the Recorder also mentioned matters which went the other way and that this drew the sting of the direction being given on those weaknesses. It is also said that there were some other matters which should have been included at this stage of the summing-up rather than being left to later.
40. For our part we cannot accept that the learned judge fell down on her duty of having to draw the attention of the jury not merely to the need for caution generally in dealing with identification evidence but in relation to spelling out the specific weaknesses in the particular case in such evidence. She did alert the jury to the dangers of mistaken identification and she then went through the potential weaknesses in detail. There is no need to recite those various weaknesses at this stage in our judgment because they have become clear from our reference to them already at an earlier stage. We would emphasise that no precise formula is needed in order to observe the Turnbull directions, so long as the judge properly emphasises to the jury the need for caution in dealing with identification evidence, and the dangers of miscarriages of justice occurring and does then deal specifically with the weaknesses in the identification evidence. The Recorder here did that. When so doing, the job of any judge is to do so in a fair manner and not an unbalanced one. That being so, we can see nothing wrong in the way in which the Recorder from time to time mentioned some matter which went perhaps to diminish the force of some of the alleged weaknesses in the identification evidence.
41. Next, it is submitted that the judge failed to give a coherent account of the case being mounted on behalf of the defendant. We can take this very shortly. Having read the summing-up it seems to us that the Recorder put the defendant's case perfectly fairly. It is right that for the most part she wove it into a sequence of events dealing with what the appellant said on specific aspects of that sequence so that the jury could contrast it with what one or more of the prosecution witnesses were saying. There is nothing wrong in a judge going that. No judge is required to follow a set pattern in summing-up, or to observe some particular formula, and Miss Pinto does not seek to suggest that a judge should. Moreover, the Recorder did also specifically summarise the defendants's case in two particular passages to which we have drawn attention during the course of argument. We can see no basis therefore for this criticism of the summing-up.
42. Submissions are then made as to the direction given by the Recorder on the topic of expert evidence, particularly the expert evidence relating to the blood staining. It is submitted that it was dangerous and wrong of the judge to invite the jury, if they so wished, not to accept the experts' evidence when there was no real disagreement between those experts on the topic of the blood stains. The jury, says Miss Pinto, could not properly have substituted their own contrary view. The direction which the judge gave to this effect was in fact the standard direction on expert evidence which is to be found in the approved Judicial Studies Board guidelines and that is accepted by Miss Pinto, but she submits that that standard direction should not have been given here because the jury might have formed their own view of the significance of the blood stains and that would have been wrong of them. She has referred us to a number of cases on diminished responsibility.
43. We can see that when that normal direction is given in accordance with the Judicial Studies Board guidelines there is always some degree of risk of a jury forming their own view. Nonetheless, those guidelines are based upon and derived from a number of clear authorities and the risk seems to us to be a minor one. In the present case we derive no assistance from the cases on diminished responsibility which are dealing with a very different situation. We can see no significant risk of the jury having gone astray in this particular case.
44. Finely, it is said by Miss Pinto that if one looks at the deficiencies in the summing-up overall as an accumulation of errors, the totality must cast doubt on the safety of the conviction. It will be clear from the way we have dealt with the individual criticisms that we see no force in any of them taken separately. Even when they are put together and dealt with as a totality, in our judgment the summing-up which took place in this case is not one which casts any doubt on the safety of the conviction. The single judge was right to refuse leave on these grounds which seek to criticise that summing-up. In those circumstances we refuse the renewed application for leave to appeal on those grounds and in consequence this appeal is dismissed.