England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Birmingham Crown Court Queen Elizabeth II Law Courts 1 Newton Street Birmingham B4 7NA
		5th April 2006

Wednesday, 5^th April 2006

THE LORD CHIEF JUSTICE:

Introduction

1. On 8 November 2005, in the Crown Court at Wolverhampton, before Mr Recorder Baker, the appellants were convicted of doing an act with intent to pervert the course of public justice. On 12 January 2006, they were each sentenced to a term of nine months' imprisonment. Against KS and SS there were also findings of guilt in relation to using a vehicle without insurance and permitting driving otherwise than in accordance with a driving licence. All three appeal against their conviction by leave of the single judge.

Background

2. The prosecution arises out of the aftermath of a tragic road accident. On 30 August 2004, a group of adults and children were in the High Street, Smethwick, in the course of making their way from a charity football match in Victoria Park to the Waterloo public house. They included Dexter Watts, a seven year old boy, his father and mother. Dexter stepped out suddenly to cross the road and was hit by a Vauxhall Vectra motor car. He died as a result of his injuries.
3. Within the car at the time of the accident were the three appellants. KS and SS are husband and wife. SD is the sister of KS. For ease of reference we shall use the first names of each. When the police arrived SS was sitting in the driving seat. SD was in the passenger seat beside her. KS was no longer in the car.
4. Each of the appellants stated that SS had been driving at the time of the accident. This conflicted with information given to the police by onlookers who said that KS had been driving at the time of the accident. The prosecution case was and is that the onlookers were correct and that each of the three occupants of the car lied to the police. That was the basis of the charge on which each was convicted. The prosecution raised only one issue for the jury: Were they sure that KS was driving at the time of the accident? Their unanimous verdict demonstrates that they were.
5. There has been no suggestion that the manner in which the car was being driven at the time of the accident was occasion for any fault or blame.
6. Evidence at the trial was given over a period of five days. A large number of eyewitnesses of the accident and its aftermath were called by the prosecution. These included people coming from the football match, occupants of another car, and a man looking out of his window. The three appellants also gave evidence.
7. It was common ground that KS had got out of the offside of the car and, after an interval, run off ahead of the car until he encountered a police car. He said that this was to escape from some members of the crowd that had gathered who were threatening him. It was the evidence of each of the appellants that KS had been a passenger in the rear of the car, that his wife was driving, that her sister was sitting in the front passenger seat, and that KS had stepped out of the rear offside passenger door.
8. Of the prosecution witnesses, six stated that they had seen a male Asian driving the car at the time of the accident. Fourteen stated that they saw a male Asian get out of the driver's seat after the accident. Seven said that a woman had got out of the nearside of the car and walked round and got into the driver's seat. They were not consistent as to whether she walked round the front or the back of the car. Four witnesses said that she crossed from the front passenger seat to the driver's seat by moving across within the car. Of these, two said that they saw her moving across and the other two formed the impression that she had done so.
9. The prosecution tendered one witness whose evidence was not part of their case, a Mr Gill. He was in his shop and heard a commotion outside. There were a lot of people shouting around a car. He went outside and saw an Asian man trying to get into the driver's seat in which a woman was already sitting. The man then ran off.
10. Some of the prosecution witnesses spoke of SS having been accused by bystanders of swapping seats with the driver. This was confirmed by SD when she gave evidence. This had led her to say to one of them that her brother was not driving because he did not have a licence.
11. The three appellants gave evidence that was similar in effect. KS had been at work on 30 August 2004 and had arranged for his wife to pick him up when he finished. She had been shopping with his sister. He climbed into the rear passenger seat behind his wife, who was driving, as the shopping bags were behind the front passenger seat occupied by his sister. They chatted while he examined a Michael Jackson DVD they had bought for him. He did not, therefore, witness the accident but only became aware of it on impact. As soon as the car stopped he got out of the rear passenger door on the driver's side and started to go back to where the child had fallen. He was greeted by angry shouts and racial abuse, and fled. KS said that he was pursued by two men and ultimately flagged down a police car. SS said that she had been driving and never left the driver's seat. Her sister-in-law had got out of the car and come round to her side. SD confirmed that this was the case.
12. In the course of the accident Dexter's head impacted on the top offside corner of the windscreen, causing that area of the windscreen to fragment. Both KS and SS's clothes and hair were examined for glass fragments. Microscopic fragments were found in the clothes and hair of SS, but not of KS.
13. Adam Booker, a forensic scientist specialising in glass analysis, was called to give evidence for the defence as to the glass that was found and its implications. An attack on the manner in which the Recorder dealt with this evidence forms the most important ground of appeal. There were a number of other grounds of appeal raised. We were not impressed by any of them, but in any event each related to a matter so peripheral that neither individually nor cumulatively could they possibly have put in question the safety of the jury's verdict. In these circumstances we will turn at once to the expert evidence.

The Expert Evidence

14. Mr Booker originally carried out investigations and prepared statements at the request of the West Midlands police. In his first statement dated 16 September 2004, he detailed the results of examinations of the clothing worn by SS and KS at the time of the accident and of combings from their hair. A considerable number of tiny fragments of glass that matched the glass of the windscreen were found in SS's clothing and hair. None was found in KS's clothing or hair. From this Mr Booker concluded that KS was at a distance from the damaged windscreen and that there was good evidence that SS's clothing was positioned in the driver's seat at the time of the impact.
15. On 30 November 2004 Mr Booker made an additional statement in which he recorded that it was believed that KS had been driving the car at the time of the impact. He commented that, given the circumstances of the incident, had KS been driving the vehicle at the time of the incident then, regardless of the following events, he would have expected glass fragments to be found on at least KS's shirt and most probably his other clothing as well. He added that the amount of glass which emanated from SS was entirely consistent with a person who was seated in the front of the vehicle at the time of the incident.
16. On 9 December 2004, Mr Booker produced a third statement for the police. This stated as follows:

"Items of clothing and a hair combing sample from the defendant SS were submitted to this laboratory. In my opinion the amount of glass which was found on these items is greater than would be expected if the defendant were seated in the passenger seat only throughout the incident. This is mainly due to the position of the impact being on the far right of the windscreen of the vehicle. Therefore the glass evidence gathered from the clothing is more consistent with the defendant moving into the driver's seat of the vehicle and thus coming into contact with glass particles on the seat post the impact."

17. The prosecution decided that they would not call Mr Booker to give evidence, but disclosed his statements to the defence. Those acting for KS decided, at a late stage, to call Mr Booker to give evidence for the defence. His evidence can be summarised as follows:

(1) 45 glass fragments were recovered from SS's sweater, 25 from the outside of her jeans, 3 from the front pocket of her jeans, 3 from her boots and 3 from her hair combings. None at all was recovered from KS's clothing or hair. These fragments were tiny -- too small to be seen with the naked eye. Most, though not all, matched a control sample taken from the windscreen.

(2) He would have expected the majority of the fragments of glass from the windscreen to have been projected around the area of the driver's seat.

(3) Had they been projected onto KS, he would have expected some to remain on his clothing, despite the fact that some would have dropped off when he ran away from the car.

(4) The fact that fragments were found on SS rather than on KS produced good evidence to place SS in the driver's seat of the car at the time of the impact.

18. This evidence was, however, qualified by answers to questions, some of which were put by the Recorder. The first relevant passage was when Mr Booker was being examined by Mr Evans on behalf of SD. It reads as follows:

"Q. .... Will the windscreen actually disintegrate into fragment inside the car?

A. Yes, it will.

Q. And in which direction will those fragments go on impact like this?

A. It's slightly dependent upon the position of the impact and possibly on the direction of the impact on to the window. If something is to hit it at an extreme angle it would stand to reason that any glass that breaks would pass back in the same direction into the vehicle.

MR RECORDER BAKER: You are doing an illustration. You passed your hands in front of your chest. If there is an oblique impact on to the .... A-frame for instance, just to the side of the A-frame, is it possible that if it was a very oblique approach the glass could be shot across the front?

A. Across rather than directly backwards into, yes.

MR RECORDER BAKER: Yes, if it is a head-on impact, something coming into the windscreen from the front, is it more likely then to pass straight back in the course of the --

A. More likely to go straight back, yes.

MR RECORDER BAKER: So the distribution of glass bears some relationship to the angle of approach of the object?

A. That's correct, yes.

MR RECORDER BAKER: I hope that is clear."

19. The next relevant passage occurred while the witness was still being examined by Mr Evans. It reads:

"MR EVANS: .... What if SS had been sitting in the passenger seat at the time of the accident and moved over to the driver's seat after the accident? How would that fit in with what you found in your scientific examination?

A. It's possible that the amount of glass recovered from that clothing could be accounted for by being in the passenger seat at the time of the impact and then moving to the driver's seat. However, the only addition I would make to that is that wouldn't account for the lack of glass on the clothing of the person who is in the driver's seat.

MR RECORDER BAKER: I just want to be clear. If SS had moved across, that exercise could attract glass fragments to her clothing?

A. That's correct.

MR RECORDER BAKER: And what, the fragments she would have picked up had she been in the passenger seat at the time would depend on the angle of inclination of the object hitting the windscreen?

A. That's correct.

MR RECORDER BAKER: About which you cannot help us?

A. Unfortunately not, no."

20. When Mr Booker was being cross-examined by Mr Quirke for the prosecution, the following exchange occurred:

"Q. Right. Now, it is a common-sense proposition, is it not, that if the force of the impact is at an angle, then the glass leaving the inside surface of the windscreen is going to be going off at the same angle? That is right, is it not?

A. I would say that's common sense.

Q. And really the amount of glass that somebody sitting inside the car receives on their body or their clothing depends whether they are in the firing line?

A. That's also correct, yes.

Q. And in this case it is clear, is it not, that there was an oblique impact with the windscreen? You accept that?

A. I couldn't tell from the photographs the angle of impact.

Q. I see.

MR RECORDER BAKER: You may not have heard the evidence. The evidence is that this little boy ran into the front wing of the car and then was propelled, sadly, in the air, and came into contact with the, just beside the A-frame of the car, coming in from the side of the car. Now, that is the evidence before the jury. Does that help you at all?

A. Yes. Obviously, again, touching the fact that it would be common sense, if there was an angle to the impact it would spread the glass across the vehicle inside.

MR QUIRKE: It is a bit like, I suppose, somebody shooting a shotgun through the window, is it not? It is going to be in that line?

A. Yes, there is a straight line impact through the window, yes."

A little later Mr Quirke referred to Mr Booker's statement of 9 December. The exchange continued as follows:

"MR QUIRKE: You know I am reading it to you. You said in December 2004, 'The glass gathered from the clothing', her clothing, 'is more consistent with her moving into the driver's seat of the vehicle and thus coming into contact with glass particles on the seat after the impact'. That is your opinion, is it not?

A. It's my opinion based on the fact that the amount of glass recovered, as I have said, was higher than I would expect.

Q. Because you put that into a witness statement, did you not?

A. That's correct, yes.

Q. And because of the way the glass is gathered we cannot say, you cannot say, whether some of the glass may have come from the backside of her jeans, or the backs of the legs of her jeans, as she climbed over the seat?

A. That's correct. It's not possible to tell --

Q. We cannot say that, can we?

A. -- the specific origin of where on the garment the glass has originated.

Q. And that is why you are really driven to accept the possibility that the glass is from that climbing-over motion? Is that not right?

A. Driven to accept that as a possibility, yes.

Q. Well, more consistent with her having done that?

A. That was my statement, yes.

Q. And was that your opinion?

A. Yes."

21. This passage of cross-examination risked misleading the jury, for neither Mr Quirke nor Mr Booker made it plain that the comparison to which "more consistent" referred was between remaining in the passenger seat and climbing from the passenger into the driving seat. We suspect that this was because Mr Quirke had not himself appreciated this fact -- a conclusion that we base on discussion with him in relation to his skeleton argument. The jury might easily have concluded that Mr Booker was saying that the act of climbing from the passenger seat to the driving seat was the most likely way in which SS would have acquired the glass which was found to have adhered to her clothing, whereas Mr Booker's evidence had consistently been that the most probable explanation for the glass in SS's clothing was that she had been the driver. Although Mr Evans read the whole of Mr Booker's December 9th report in re-examination, we are not confident that this would have dispelled any misconception that the jury might have formed.
22. Mr Quirke then sought to persuade Mr Booker to agree that KS's act of running away might have shaken off all the glass that would have fallen on him had he been in the driving seat. Mr Booker would not agree to this. He said that he would still have expected to find some fragments of glass in his clothing.
23. Mr Evans' re-examination led Mr Booker to express the following conclusion:

"Given the other findings in the case, whilst it's possible that the glass found in SS's clothing is consistent with the movement from the passenger's to the driver's seat, I would still, regardless of any physical activity, expect to find glass on the clothing of the person who was sat in the driver's seat at the time of the impact.

Q. And the absence of glass on that person's clothing leads you to what conclusion?

A. In my opinion they were not positioned in the driver's seat at the time of impact."

24. In the absence of the jury Mr Evans then submitted to the Recorder that he (the Recorder) had put to the witness the proposition that there was an angled blow to the windscreen, whereas the accident investigation report, which had not been put in evidence or been seen by the Recorder, stated: "The attitude and the position of cleaning marks to the collision vehicle's bonnet do not suggest any great momentum on behalf of the pedestrian across the latitude of the Vectra". The Recorder suggested that Mr Evans should put this hypothesis to Mr Booker and that the prosecution would then probably not disagree with it. He added that he would make it plain in his summing-up that there had been no evidence of any kind as to the particular angle of inclination of the boy's impact with the windscreen. This would prevent them from approaching the case on a false premise.
25. Mr Evans then put some further questions to Mr Booker in the following exchange:

"Q. Mr Booker, you have been asked about the distribution of the glass within the motor car assuming that there was a side impact to the windscreen. I am just going to deal with this proposition, if I may. It may be the case that the boy who struck this windscreen was first of all thrown up into the air and came down on the windscreen without at that point going at any appreciable velocity across the car. If that is right, where would you expect the distribution of glass fragment in the car to be, mainly and overall?

A. If the impact is literally straight back down on to the windscreen, on to an angled windscreen, common sense, as we said earlier, would be that any angled impact would pass the glass in a direction back across the vehicle. Any direct impact would spread it straight back from the point of impact, in that case towards the driver's seat.

Q. Would you still expect there to be some glass fragments across on the passenger side of the car?

A. From that type of impact?

Q. Yes.

A. Yes, but very little."

26. In his final submissions to the jury Mr Quirke suggested to them that the fact that the glass fell on SS and not on KS could be explained by postulating that Dexter's body impacted on the windscreen at an oblique angle. This led to a protest from defence counsel in the absence of the jury. They submitted that the jury should be given, as an agreed fact, the passage in the accident investigation report to which we have referred. Mr Quirke objected to this on the ground that the report was not in evidence. The Recorder ruled that he would not force the prosecution to make an admission, but:

"I will take great care when I come to this part of the evidence to make sure that the jury have it well in mind that there is no evidence before them other than that of Mrs Chambers .... that the child went up in the air and landed down and I will link that evidence with Mr Booker, who said what he would then expect that to lead to in the passage of glass [namely more glass in the driver's seat]."

27. In summing up the significance of the fact that glass particles were found in the hair and clothing, the Recorder said:

"He explained to you that the angle of impact could have a bearing on the direction of travel of the glass inside the car. And he said if the angle was an oblique angle, it would tend to push the glass more across the car.

And he said the smaller the glass fragments the further the glass was likely to travel and you are dealing here with microscopic glass fragments, which had to be seen under a microscope and he said a moderately powerful one, but that is the sort of fragment you are dealing with.

Now there is very little evidence on the details of the impact in this case. You know that the windscreen is broken or cracked just by the A-frame, to the right of the driver's position in front of the car.

The evidence you may think you have heard from the witnesses is that Dexter collided with the offside of the Vectra and was thrown up in the air. That seems to be a picture that a number of witnesses paint.

The evidence of Mrs Chambers was that having hit the side of the car he was thrown up in the air and came down from above, onto the windscreen and the defence rely on that as indicating that there was more likelihood of the glass going straight back in the car, towards the driver, not across towards the passenger side."

After dealing with evidence in relation to adherence of glass particles to clothing, the Recorder continued:

"His conclusion was, from his analysis, that there was good evidence to place SS in the driver's seat at the time of the impact. He agreed that relative retentive properties of the front passenger's clothing and the movement of glass within the car, if it was at an oblique angle, which of course the defence say there is no evidence it was at all, could help to explain the fragments in the clothing and hair of the front passenger.

So he accepted that. They said if the passenger moved across the driver's seat, this is the shuffling across as described by a few of the witnesses, there would be the glass that may well be there from the impact, there would be the glass that she would pick up from the centre console and there would be glass that she would pick up from the driver's seat, having got into it.

And so he said there were three potential sources of glass, if that had happened. It is for you to say what happened. And he put it in this way. He said, 'I would entertain that the picking up of the fragments in that way is a distinct possibility'.

It was put to him that in his witness statement he had said slightly more than that, saying it was consistent with that having happened, but his evidence before you is that he would entertain it as a distinct possibility that one could pick up those fragments by shuffling across with what may already be there, what you would pick up on the console and what you would pick up on the seat behind.

He said this, towards the end of his evidence, given the other findings that he had made in the case, 'I would have expected to find glass fragments in the clothing of the driver'. If Dexter's head came down into the windscreen from above, in a direct line, he would expect the glass fragments to pass into the driver's side as opposed to across.

He said physical exertion after the glass has got into the clothing or the hair for that matter, would lead to the shedding of fragments. He said the more vigorous and strenuous the exercise the more fragments you would expect to shed.

And he was asked by the prosecution, you remember, if you had to run a long way through the streets being chased by people, would that be something where you would lose fragments and he said, 'Well you would but I cannot tell you how many you would lose [as] I do not know how many there were in the first place'."

28. At the end of the summing-up defence counsel made representations to the Recorder in relation to what they suggested were possible deficiencies in his summing-up. They invited the Recorder to direct the jury that there was no evidence to support the thesis that Dexter had impacted on the windscreen at an oblique angle and that they should not speculate about this. They also asked him to remind them that Mr Booker had said that he would expect particles of glass to remain attached to KS's clothing after he had run away from the scene of the accident had he been the driver at the time that the windscreen was damaged. The Recorder declined to do so.
29. Counsel for the appellants complain that the Recorder did not make it plain, as he had said he would, that Mrs Chambers' evidence was the only evidence of the angle at which Dexter struck the windscreen, nor that Mr Booker's evidence was that, if this were the case, the majority of the glass fragments would have fallen around the driver's seat. They also complain that he ended the passage in his summing-up that dealt with Mr Booker's evidence by reminding the jury that he had said that KS would have shed fragments in the chase, without adding that he had stated that he would not shed all the fragments.

Conclusions

30. It was Mr Booker who first stated that if something had hit the window at an extreme angle any glass that broke would pass into the car at the same angle. Had this statement been considered at leisure it would surely have been appreciated that this could not found a possibility that, on the facts of this case, the glass fragments flew at such an angle that they bypassed the driver (KS on the prosecution case) and landed instead on the occupant of the front passenger seat (SS on the prosecution case). The only evidence, as the Recorder accepted, was that Dexter was thrown into the air by the wing of the car and struck the offside corner of the windscreen. Furthermore, the relevant force which broke the windscreen was the forward momentum of the car, not any sideways momentum of the boy.
31. Because the Recorder himself pursued with Mr Booker the effect of an oblique impact, and permitted Mr Quirke to pursue in his final speech the possibility that this is what occurred, there was a real risk, unless he gave a clear direction in his summing-up, that the jury might conclude that this was a legitimate way of reconciling Mr Booker's expert evidence with the evidence of the witnesses.
32. This is a perplexing case. A very large number of eyewitnesses speak of seeing KS leave the car by the driver's door after the accident. The eyewitness evidence appears overwhelming. But for the expert evidence we think that the jury would have been likely to return a guilty verdict within the hour. But the expert evidence might be thought to cut conclusively in the other direction. If KS was in the driver's seat and SS in the passenger seat, it is almost inconceivable that the damage to the offside corner of the windscreen would have showered SS with fragments while not depositing them on KS.
33. The Recorder should have placed this dilemma fairly and squarely before the jury. In the event he reminded them of Mr Booker's evidence about oblique impact without making it plain that this could have no application on the facts of this case. Furthermore, he went on to remind the jury of Mr Booker's evidence of three different sources for the glass on SS's clothing if she had shuffled across to the driving seat, without pointing out that only a minority of witnesses said that this occurred or that this theory still left unexplained why no glass was found on KS.
34. Had the fact that it is impossible to reconcile the expert evidence with the eyewitness evidence been paced fair and square before them, the jury might well have decided that the eyewitness evidence was so powerful that the expert evidence could not stand in its way. There were, however, significant inconsistencies in some of the eyewitness accounts and, at least in the case of witnesses who were some distance from the rear of the car when KS got out of it, there was scope for mistaking the door from which he emerged.
35. In all the circumstances we have concluded that the conviction in this case is not safe and accordingly that this appeal should be allowed and the convictions quashed.
36. MR EVANS: My Lord, may I invite the court, under section 41(11) of the Criminal Justice Act 1988 to set aside the convictions for the summary only offences?
37. THE LORD CHIEF JUSTICE: That must follow, Mr Quirke?
38. MR QUIRKE: Yes, indeed.
39. THE LORD CHIEF JUSTICE: Yes, so be it.
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