England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE BUXTON: The matter before the Court originates in a trial that took place before the Stipendiary Magistrate for West London on a date in, I think, July 1998. That trial was concerned with an information laid against the Respondent in respect of what appears to have been an unsatisfactory incident that took place in December 1997 on licensed premises, a public house or club, in the centre of London. It appears that there was an altercation, or indeed fight, at those premises. We make it clear that

2. Mr Chipping's involvement in that fight, and the circumstances in which he came to the attention of the police were, and remain, matters of controversy not in any way conceded by him.

3. As a result of the events of that evening three complaints were laid against Mr Chipping: firstly, that he used threatening words or behaviour contrary to section 4 of the Public Order Act 1986; and secondly that he assaulted two police officers, a Constable Thornhill and a Constable Lashmore, in the execution of their duty, that complaint being laid contrary to section 89 of the Police Act 1986. It is relevant to remark at this stage that under the procedure of the Magistrates' Court it would not be open to that Court to convict on those latter two complaints of any alternative offence. The significance of that is that the Magistrate had to be satisfied not merely that Mr Chipping had assaulted those police officers but also that he had done that when they were acting in the execution of their duty.

4. The facts of the case are to some extent controverted and, in circumstances that will shortly become apparent, they were not finally passed on by the learned Magistrate. Therefore I will state what appears to have happened only by way of outline background. Put very briefly, police officers were called to the public house because of the incident and in the course of seeking to restore order they arrested Mr Chipping. As I have already said, whether they rightly did that was going to be one of the matters that the Magistrate had to try. It appears that he was taken by the officers to the outside of the premises and either placed in a police van or they sought to place him in a police van. It was at that stage that the alleged assaults took place. Again the surrounding circumstances are a matter of some dispute.

5. The case contested on all three complaints. The first witness was the bartender, as he is called in the Case Stated and by the parties (but I will be old fashioned enough to call him the barman) at the public house. When he was cross-examined defence counsel asked him about a closed-circuit television system that existed at the club and asked him whether there were any video tapes of the events of that evening. The barman said that there was indeed, or had been at the time, a closed-circuit television security system and he thought there had been some videotape taken that evening. He did not know what had happened to it. Miss Hales, who was representing Mr Chipping as she represents him before us, then complained to the Magistrate that the defence had never been told of the existence of this system and certainly no video tapes had been disclosed to them. She cited to the Magistrate, as she cites to us, a case at first instance in the Crown Court: R v Birmingham and Others [1992] Crim L.R. 117.

6. It is convenient now to turn to the account of the evidence that then developed, as given in the learned Magistrate's Case Stated in paragraph 3, which it will be most easy to read verbatim:

7. After that evidence Miss Hales submitted to the Magistrate that the proceedings were an abuse of the process of that Court: firstly, because of the simple fact of failure to disclose the existence of these tapes and their subsequent destruction; and secondly, and more particularly, because the failure to preserve the video had denied access to potentially significant evidence. It could not be said, on the facts of the case, that the tape would have had no relevance to the defence.

8. The Magistrate acceded to those submissions. She says in paragraph 7 of the Case Stated:

9. She refers to the Birmingham case, to which I will return, and then said at paragraph 9:

10. The matter originally came before this Court on an application by the prosecution for the Case Stated to be returned to the learned Magistrate for it to be amended. The complaint that is made was originally set out in a letter from the Senior Crown Prosecutor, who had certainly been present and, I think, had conducted the trial at the Magistrates' Court to the relevant Justices' Clerk dated 30th October 1998. Paragraph 4 of that letter referred to paragraph 9 of the Case Stated which it recited, and then said this:

11. This representation has not been addressed in the revised case. In the letter of 30th October the prosecutor continued:

12. That submission to the Magistrate not having been accepted by her, application was made to this Court to amend the Case Stated. As set out in paragraph 4 of an affidavit in support of that application, sworn by the Crown Prosecutor, the application, in effect, is that the case be amended further either:

13. It is, I have to say, quite clear that the prosecutor's concern, as expressed in his letter to the Magistrates' Court and in his application to this Court, was in relation to the location in which the alleged assaults had taken place. That was because it was clearly the contention that inspired the application to amend the Case Stated that on no view of the evidence about the video camera could it have recorded the actual assault. Therefore, even if the police had acted wrongly in not making it available to the defence, that had had no effect upon the fairness of the trial and had not deprived the Defendant of any relevant evidence.

14. On scrutinising the case, however, and assisted by the full skeleton put forward by Miss Hales in connection with this appeal, it became apparent to the Court that that was not, by any means, the end of the story. As I have already said, the prosecution in respect of the second and third charges were obliged to establish that the police officers had been acting in the execution of their duty when the assaults took place. Relevant to that question was the circumstances in which the arrest took place and conceivably any other incidents within the public house that preceded the arrest of Mr Chipping. Although it was, or appeared to be, the case that the video camera was trained on the steps leading from the public house to the place where, out of camera shot, the police van was, that was neither established before the Magistrate with any certainty, nor was it the basis upon which the application was made. This is because in his affidavit to which I have already referred at paragraph 3, very fairly, the Crown Prosecutor refers to part of the evidence about the video camera set out in the Case Stated, to which I have already referred, and then says:

15. The Crown Prosecutor then says:

16. The position, therefore, was that it was not clearly established that it was only into the foyer that the video camera was directed.

17. In her submissions to us today Miss Ray-Crosby says that, in fact, the evidence established that the only other position at which the camera could have been directed was the cash till. It would be the prosecution case that such a camera could not have recorded the incident inside the public house that led to Mr Chipping being arrested, or indeed any transactions between himself and the police officers while they were removing him from the premises. Therefore, even that uncertainty about the actual camera position could not affect the outcome of the trial.

18. The difficulty about that is, however, twofold. Firstly, having heard the evidence about the positioning of the camera on which Miss Ray-Crosby relies, the learned Magistrate in paragraph 7, which I have already cited, says that she had decided that if the video was covering the doorway and surrounding area anything showing on it might well affect the second two charges. The submission seems to be that she was wrong in coming to that conclusion, even on the basis that the video might have shown something inside the club. The problem, however, is that no application has been made to this Court for the case to be amended in that sense. As I have already pointed out, the application to this Court is solely concerned with the recording of the position of the assault. Secondly, and this is a matter that is of more difficulty, the Magistrate was clearly under the impression that the prosecution before her had accepted that the absence of the video evidence could vitiate the first charge, that is to say the public order charge. She said that in terms in the last sentence of paragraph 6 of the Case Stated:

19. Miss Ray-Crosby told us today, as I understood it, that that was a misunderstanding. The case had been vigorously argued by the prosecutor in respect of the assault charges but also argued in respect of the Public Order Charge, although not perhaps with the same vigour. The difficulty, however, is that no application has been made, either formally or informally, as I understand it, to correct that misapprehension on the Magistrate's part. If we therefore look at the case on its face it is difficult to see how it can be said that the video evidence had nothing to do with the original arrest and therefore nothing to do with whether the officers were acting in the execution of their duty.

20. In my judgment the Magistrate was justified in concluding that the destruction of this material, and the failure to draw it to the attention of the defence, was an abuse of process. She was referred to the Birmingham case, which I have already mentioned. That, it is fair to say, was a clearer case than the present because it appears to have been established beyond doubt that the video evidence that was destroyed in that case, and not made available to the defence, had indeed directly shown the locus in quo of the alleged offences; but that is merely a difference of degree and not a difference of substance.

21. The root of the complaint in this case is that the Crown should have disclosed the existence of the videotape, or at least have told the defence about it before they decided to destroy it. It was not good enough in this case, any more than it was good enough in the Birmingham case, for the Crown to rely upon the simple assertion of a police officer that the video did not reveal anything of relevance or assistance. Whether that officer meant assistance to the prosecution I am not entirely clear, but even if he was genuinely directing his mind to the question of relevance in a case such as this, where if it could stand up the video evidence was likely to be the best evidence of any incident that it showed it would seem obviously desirable that it was made available to the defence.

22. That conclusion might be offset if it could be shown that such evidence would have had no effect on the trial at all, and therefore that the learned Magistrate was simply mistaken in thinking that she should dismiss the proceedings on the basis of abuse of process. As I have sought to demonstrate, that cannot be shown in this case. In the circumstances I am of the view that it was well within the limits of the judgement of the Magistrate to take the course that she did.

23. The case was argued before us on the basis, and we invited the case to be argued on the basis, of an assumption that the case would be amended in the terms that the prosecution sought in its application. I am of the view that, even if such amendment were made, for the reasons that I have indicated there would still be no grounds for saying that the Magistrate erred in law, or otherwise exceeded her powers by dismissing these charges: as to the assault charges, for the reasons that I have given; as to the Public Order Charge, on the grounds that she set out in the Case Stated, which were not effectively controverted before us.

24. For those reasons, therefore, having proceeded in this way, I would not find it appropriate to submit the public purse, to the expense of further amendment of the case. I proceed on the basis of the case as it stands, but as amended by the Applicant, and I nonetheless dismiss the appeal.

25. MISS HALES: My Lords, Mr Chipping has been privately funded in connection with these proceedings as he was in the lower Court. My application is that your Lordships order costs from Central Funds to be taxed in connection with his expenditure before this Court.

26. MR JUSTICE BUXTON: That must follow, I think, if no one seeks to----

27. MR HARRIS: It is not a matter for me, my Lord. I am certainly instructed simply not to make any submissions on costs and leave it entirely to the discretion of the Court.

28. MISS HALES: Costs were awarded in the lower Court and I do not make any application to alter that.

29. MR JUSTICE BUXTON: The only application is that you should have your costs of this application out of Central Funds?

30. MISS HALES: Costs having been awarded in the lower Court in any event.

31. MR JUSTICE BUXTON: Yes. Thank you very much.