England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		27th July 2006

1. LORD JUSTICE HUGHES: This is an appeal against a conviction for an offence of assault occasioning actual bodily harm on a police officer. The complaints are put as cumulative complaints arising from the manner in which the trial judge intervened in cross-examination and eventually summed up the case.
2. The starting point is that it was common ground that sometime around 9 o'clock in the evening of 17th March 2005, there was a heated argument in Shipley Walk in Liverpool between, on the one hand, this appellant and, on the other, an ex-girlfriend of his who lived in that street. Someone heard it and somebody called the police. The policeman who was sent out was Constable Blackmore, who arrived alone in his vehicle. His evidence was that, as he walked towards the house from his car, he saw the man who turned out to be the appellant run off but then return. Someone called out words to the effect that that was him. The policeman said that he turned towards the returning appellant and, according to the policeman, the appellant ran at him, shouting "Come on then, hit me", and then rugby tackled the officer to the ground and punched him twice in the head. The constable said that he banged his head on the concrete and was somewhat injured but managed to get out his canister of CS gas, which he used. The appellant continued, according to the policeman, to punch the officer several times more and also tried to kick him.
3. At some stage the officer managed to send a call for assistance. It may be that a single press of a button would do that, but in any event other officers arrived quite soon.
4. The appellant's account was that he had indeed had a heated argument with the lady. According to him, it was he who had telephoned the police. He said that it was not true that he had run off and then returned; rather, he said, he was waiting outside peaceably for the policeman to arrive. According to him, he saw the policeman walking towards him. He moved in his direction in order to speak to him, perfectly peacefully, but the policeman pulled out his baton and CS canister, backed away and sprayed the appellant in the face. The appellant agreed that the policeman went to the ground. His contention was that that appeared to have been because the policeman had lost his footing. There had been, he said, no rugby tackle. He did accept that he had ended up on top of the policeman. He said that he did not know how he had come to be there. He denied punching the policeman. He said that he was upset once he was sprayed with the gas, but was otherwise not angry and perfectly peaceful. That clear issue was duly joined in the evidence of Police Constable Blackmore.
5. The first supporting officer on the scene was Constable Lynch. He arrived with a female officer, who seems to have taken no part beyond keeping other people from coming near, but he was joined a little afterwards by another officer, called Parry. PC Lynch said that when he arrived the appellant and PC Blackmore were both on the floor apparently struggling. That, it seems, was consistent with either the constable's account or the appellant's account. PC Lynch said that he took hold of the appellant and, with the help of PC Parry, who arrived soon afterwards, handcuffed him. PC Lynch's evidence was that the appellant reacted aggressively to their restraint. It was the appellant's assertion that PC Lynch had handcuffed him, whether deliberately or otherwise but probably deliberately, in a manner which was unnecessarily painful. Moreover, it was his assertion that PC Lynch and PC Parry had thereafter assaulted him, the appellant, by punching and kicking him in the back and face.
6. Counsel, when presented with those instructions, began to put them to PC Lynch, starting with the handcuffing. The judge interrupted the cross-examination to inquire what the relevance was. That is the first complaint in time which the appellant now makes. What was concerning the judge no doubt was that PC Lynch had given no evidence at all about what had happened between PC Blackmore and the appellant or how they came to be together on the ground at the time that he arrived. The judge asked the question in these terms: "Mr Jones, are the jury really concerned about the manner in which the handcuffs were applied?" There was a further exchange. Counsel for the appellant pointed out that the jury had had adduced by the Crown evidence that the defendant's reaction to PC Lynch had been volatile and had been to struggle violently. The judge then said that he did not know what the purpose had been of that either, and he turned to counsel for the Crown and asked what the purpose had been. Counsel for the Crown then said that the evidence of the appellant's reaction subsequently to PCs Lynch and Parry was relied upon as demonstrating that he was in an aggressive mood and thus that he had been aggressive to Mr Blackmore before PCs Lynch and Parry had arrived.
7. We agree that once the Crown put it that way, the questions about the handcuffing and the events between the appellant and PCs Lynch and Parry were relevant, and it seems that the judge accepted that also because, having received that explanation from counsel for the Crown and counsel for the appellant's explanation as to how that made the point relevant, the cross-examination thereafter proceeded and counsel was able to put the appellant's instructions. The judge did interject again at the point where it was suggested that one of the officers had reacted to the presence of the appellant's mother, who was perhaps making a protest or a complaint of some kind, by calling her a slag, by asking what on earth that had got to do with the charge.
8. It seems to us that at that point the judge was betraying impatience, and he certainly told counsel for the appellant, Mr Jones, to "get on with it", and a little later made an aside to the jury that the case would go into a second day. Mr Jones responded, if we may say so commendably tactfully but nonetheless effectively, by saying that he hoped that his honour would have some patience with him when he did, and thereafter he continued to put the remainder of the appellant's instructions.
9. The interchange and the display of impatience are regrettable. The judge's enquiry as to relevance is understandable, but we suspect that, if he were to see a transcript of the exchange, he would prefer to have expressed himself differently. It was the fact that the credibility of the second officer, PC Lynch, who was at this point being cross-examined, was of relatively small significance. The only evidence which he had given which went to any matter in issue was the appellant's behaviour some time after the incident with PC Blackmore which formed the subject of the charge.
10. When in due course the judge came to sum this aspect of the case up, he had to deal with this additional factor. The appellant having elected to advance the assertion that he had been ill-treated by the two subsequently arriving police officers, he had, perhaps realistically, put his own bad character in issue before the jury in evidence-in-chief. We say "realistically" because it may very well have been that if he had not an application may have been made by the Crown under section 101(1)(g) of the Criminal Justice Act 2003. It followed that the judge had to give the jury a direction as to the relevance of the appellant's bad character. It is the fact that the appellant's convictions, although not very recent, were for offences of dishonesty, but also for assault occasioning actual bodily harm and, on a separate occasion, for assault on a police officer. As the decision of this court in Highton & ors [2005] EWCA Crim 1985 makes clear, once evidence of bad character is admissible through one of the new statutory gateways, then, whatever the occasion of the opening of the gateway, the evidence becomes material and relevant for any purpose to which it is relevant. The appellant certainly took the risk by the manner in which he chose to give instructions for the conduct of his defence that his previous offences were left to the jury on the basis that they established a propensity to violence. The judge, favourably to the defendant in this respect, and as it seems to us sensibly, decided to limit the relevance of the bad character evidence to the truthfulness of the appellant. He said this:

"Ladies and gentlemen, moving on, another issue of law concerns the defendant's previous convictions. This has been given in evidence because he, you may think, gratuitously and unnecessarily, attacked the character of prosecution witnesses, Constables Parry and Lynch ... Where such an attack is made on the character of a prosecution witness you may think that it is only right in those circumstances you should know something about the person making the attack."

We need not read the remainder of the direction, which was to limit the use to which the bad character evidence could be put to truthfulness or credibility. It contained an impeccable direction not to jump to the conclusion that he was guilty because he had previous convictions. We do not read it because no complaint is made about it; the complaint is made about the reference to gratuitous and unnecessary attack on the police officers.

11. At much the same point in the summing-up the judge directed the jury that it was trying the appellant on the charge of the assault on PC Blackmore and was not trying PCs Lynch and Parry on a charge of a suggested subsequent assault by them upon the appellant. The remedy for the latter if it had happened, the judge pointed out, lay elsewhere. He said this:

"The reason that you have heard it [this evidence] ... was two-fold. First of all, it might be relevant to the credibility of Constables Lynch and Parry. But since they do not pretend to have seen the matter that you are trying, the alleged assault on Constable Blackmore, they do not pretend to have seen that. They gave no evidence, and never have alleged that they saw what happened in relation to that assault. Their credibility is not really a factor for you to consider. Secondly, I suppose their evidence could be relevant. The arrest could be relevant insofar as they say that Mr Pittard was struggling violently. Even on his version of events he had quite unnecessarily, quite unlawfully been himself the subject of an assault by Blackmore in that he sprayed CS gas into his face, having the very nasty effect that that has. You may think that a man like Mr Pittard, had he been subjected to that sort of unnecessary, unlawful attack by a police officer would not be in the best of humours and he would be struggling and shouting, and what have you. So I would ignore entirely what happened after the arrival of Constables Parry and Lynch, save to the effect that they arrested the defendant and took him to the police station."

12. The complaint which is made is that, in directing the jury in that manner, the judge was withdrawing from the jury the relevance of the evidence of the after occurring events and what has been referred to by Mr Jones as the animus of those two police officers.
13. It seems to us that what the judge was doing was advising the jury, contrary to the Crown's contention, not to treat any evidence of PC Lynch or PC Parry about the appellant's struggling upon arrest as any indication of earlier aggression by him at the time when they had not been there and only the appellant and PC Blackmore had. By the time of the arrest, as the judge pointed out, on any view the appellant had been sprayed in the face with CS gas, and if he behaved aggressively that could easily be the result of that, however it had come about.
14. It may very well be that the appellant feels strongly about what he says was the manner in which he was handled by PC Lynch and his colleague, but this was not a case, as some are, where what was asserted was a combination of police officers to give a false account of an incident in which some of them had assaulted the defendant. There was no suggestion that PC Blackmore had invented his account of the incident to which he was a party in order some way to back up PC Lynch or PC Parry. If that had been the case, the approach might well have been different, but it was not. Unless that was being suggested, the appellant's allegations against PCs Lynch and Parry were of the most marginal relevance, and we are unable to see what it had to do with whether PC Blackmore had been assaulted or not whether PC Lynch or Parry did or did not have an animus against the appellant. It perhaps too often happens that it is supposed by defendants that any complaint about one police officer will automatically help in his dispute with a different one about a different occasion; sometimes it does and sometimes it does not, but it does not necessarily follow. On the facts of this case, it seems to us that the judge was entitled to direct the jury in the manner in which he did.
15. The reference to the gratuitous and unnecessary attack on PC Lynch and PC Parry has therefore to be seen in the light of that direction which followed immediately after it. Once again, we suspect that if the judge were to see a transcript he would prefer not to have used the word "gratuitous", but we do not believe that the directions, taken as a whole, could have rendered unsafe the jury's approach to the real question in the case, which was whether the appellant had run at and rugby tackled the first policeman to arrive, or whether, on the other hand, the policeman had been aggressive towards him, had his baton and CS gas canister out, used the latter when the appellant was acting entirely peacefully and then somehow or other had fallen over.
16. The appellant also complains that, in asking the jury whether that latter sequence of events as asserted by the appellant was likely, the judge asked them whether, having seen what appeared to be a not very experienced but a fit and well set up young police officer, he was likely to have been frightened by a man just walking towards him to the extent that he had done what was alleged. It is suggested that the terms in which the judge did that were such as to belittle the defence. In relation to that complaint, we do not see any ground for it. The judge was properly formulating one of the questions, indeed the central question, which the jury had to confront.
17. There is next a complaint about the judge's summary in the course of the summing-up of the appellant's interview. Quite apart from any inherent improbability in the appellant's account, the evidence from his interviews given that night was that, although he had immediately said that he had been sprayed with CS gas before he reached the policeman, and also that the policeman had had his baton out and was gesturing with it from the outset, he had said frankly that he was in a temper that night as a result of the row with his former girlfriend and that he had adopted an aggressive stance towards the police officer. He had said "I might have got a bit aggressive with him". He went so far in his interview to say this. When asked how the officer got his injuries, he had answered that night:

"I'm not too sure ... I remember approaching the officer who was walking down the walk. I wasn't backin' down to no-one. I didn't see him as an officer, don't get me wrong. I didn't see him as anything. By that stage I'd crossed over, I'd lost me temper. This girl had pushed all the right buttons and I'd lost me temper, yer know what I mean".

There were a number of other similar remarks in the course of his interview.

18. The learned judge did not remind the jury of the passage which we have just quoted, perhaps the one most damaging to the appellant, but he did remind them that the appellant had said in interview that he admitted that he had taken an aggressive stance only because he pulled out a cosh. It may be that the judge could have added that the appellant had made it clear in interview that the policeman had had the cosh out from the outset, but, in reminding the jury as he did that what the appellant had said in interview was that he had taken an aggressive stance "only because he pulled out a cosh", it does not seem to us that the summary of the interviews can properly be stigmatised as unfair.
19. In the end, this was a case in which the jury saw the two principal witnesses, the police officer and the appellant, and also saw PCs Lynch and Parry. It heard the evidence of the appellant. The appellant called evidence of a forensic medical examiner as to injuries which he had undoubtedly had and which he attributed to mishandling by the later arriving police officers.
20. At a late stage in their retirement, the jury sent a note to the judge. The question which they asked, or to be more accurate at least one of them asked, was: "If we believe there was provocation but also that the defendant then assaulted the police, can we still give a guilty verdict?". The judge took the proper course. He provided the note to counsel and invited comments. On behalf of the appellant, Mr Jones submitted that the judge, whilst of course he must tell the jury that provocation was no defence, should also incorporate a further direction designed to remind them that they needed to be sure that they were able to accept PC Blackmore's evidence of the assault. The judge elected not to do that. He simply responded to the jury's question: "... provocation is not a defence to a charge of assault occasioning actual bodily harm" and asked them to retire and continue their deliberations.
21. It does not seem to us that the judge can properly be criticised for not at that point embarking on any kind of enquiry or direction aimed at provoking an enquiry into which part, if any, of PC Blackmore's evidence the jury entertained any doubt about; indeed, it seems to us that it would have been rather unwise for him to have embarked on any such enquiry.
22. Lastly, there were in this case some agreed facts reduced to writing in the approved manner as admissions. One of them was that the log in the police control room recorded a telephone call at 21:08 and 18 seconds from a mobile telephone number, which number was recorded and of which the last three digits were 175. It was a call from a man and the caller, who did not identify himself, said only that he was outside the house near where the incident had taken place and the connection was then broken. When he gave evidence, the appellant gave evidence that he had called the police. It was not something that he had ever said in his interview that night that he had done, but it was something that he said in his evidence to the jury. He asserted that he had made the call on a mobile telephone which he no longer had, and he said that, although he could not remember its number, the last three digits of the number were 175.
23. As Mr Jones realistically recognises, the question which arose in relation to that assertion was whether it was truthful or whether the appellant was taking advantage of the police log to assert that he had made the call, borrowing the number from the log. The complaint is that the judge declined to allow the written admission to be placed before the jury. Instead, what he did was to read it out in the course of his summing-up.
24. It seems to us that ordinarily, provided at least that the admissions which have been agreed between the parties are relevant to an issue before the jury and do not contain any material which they ought not to have, written admissions should be provided to the jury. The question, however, is whether the omission to provide the written document in this case affords any grounds for anxiety about the safety of the conviction.
25. First, as we have said, the judge read it out, but, secondly and more fundamentally, the relevant telephone call as logged by the control room was received there 41 seconds after the control room had been told by the officers on the scene that the appellant had been handcuffed and had previously been CS sprayed. It follows that this call could not have been the call that the appellant said that he had made; nor could the appellant have made this call because by then he was handcuffed and under arrest. The only remaining question about the evidence relating to the call is that the log is in these terms: "further call received". That might conceivably permit the enquiry whether there had been an earlier call from that telephone, but if there had been it would have been logged and there was no such log.
26. It follows that there is, as it seems to us, nothing in the complaint about the manner in which the admission was dealt with.
27. Mr Jones, who has put the appellant's case entirely realistically and skilfully, asks us to stand back from the various individual complaints and to ask whether overall the manner betrayed by the judge, and particularly a number of rather impatient interjections and the terms of the summing-up, taken together, were such as to step too much into the arena to the extent that the conviction is not safe.
28. We have undertaken that exercise because, as we have indicated, there are a number of respects in which we suspect the judge, were he to see a transcript, would regret the terms in which he expressed himself, but we are satisfied that this conviction is safe. The issue before the jury was very clearly put; they had quite contrary accounts of the two principal witnesses; they did see PCs Lynch and Parry and saw them cross-examined; they did hear the evidence of the forensic medical examiner as to the appellant's injuries; and they were told very clearly by the judge at a number of points that the facts were for them, and with more emphasis than mere formality required.
29. In those circumstances, despite Mr Jones' persuasive submissions, this appeal must be dismissed.