England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		St Dunstan's House 133-137 Fetter Lane London EC4A 1HD
		1 May 2007

1. MR JUSTICE JACKSON: This judgment is in seven parts, namely: Part 1, introduction; Part 2, the facts; Part 3, the present appeal; Part 4, the admissibility of the identification evidence of PC Leanne; Part 5, the weight attached to the PNC record; Part 6, the reasons given by the justices; Part 7, conclusion.
Part 1: Introduction
2. This is an appeal by way of case stated against a decision of the Highbury Corner Magistrates' Court given on 20 July 2006. The appeal concerns the effect of breaches of the Code of Practice in relation to identification evidence and the admissibility of certain details on a Police National Computer print-out.
3. The appellant is Pierre Anthony Wellington, to whom I shall refer as Mr Wellington. In this judgment I shall use a number of abbreviations. I shall refer to the Police National Computer as "PNC". I shall refer to the Police and Criminal Evidence Act 1984 as "PACE". I shall refer to the Criminal Justice Act 2003 as "the 2003 Act". I shall refer to Code D issued pursuant to PACE and concerning identification by police officers as "Code D".
4. Let me now set out the relevant statutory provisions. Section 78(1) of PACE provides:

"In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse affect on the fairness of the proceedings that the court ought not to admit it."

5. Section 117 of the 2003 Act provides:

"117 Business and other documents

(1) In criminal proceedings a statement contained in a document is admissible as evidence of any matter stated if-

(a) oral evidence given in the proceedings would be admissible as evidence of that matter.

(b) the requirements of subsection (2) are satisfied, and

(c) the requirements of subsection (5) are satisfied, in a case where subsection (4) requires them to be.

(2) The requirements of this subsection are satisfied if-

(a) the document or the part containing the statement was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office,

(b) the person who supplied the information contained in the statement (the relevant person) had or may reasonably be supposed to have had personal knowledge of the matters dealt with, and

(c) each person (if any) through whom the information was supplied from the relevant person to the person mentioned in paragraph (a) received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office.

(3) The persons mentioned in paragraphs (a) and (b) of subsection (2) may be the same person.

(4) The additional requirements of subsection (5) must be satisfied if the statement-

(a) was prepared for the purposes of pending or contemplated criminal proceedings, or for a criminal investigation, but

(b) was not obtained pursuant to a request under section 7 of the Crime (International Co-operation) Act 2003 or an order under paragraph 6 of Schedule 13 to the Criminal Justice Act 1988 (which relate to overseas evidence).

(5) The requirements of this subsection are satisfied if-

(a) any of the five conditions mentioned in section 116(2) is satisfied (absence of relevant person etc), or

(b) the relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement (having regard to the length of time since he supplied the information and all other circumstances).

(6) A statement is not admissible under this section if the court makes a direction to that effect under subsection (7).

(7) The court may make a direction under this subsection if satisfied that the statement's reliability as evidence for the purpose for which it is tendered is doubtful in view of-

(a) its contents,

(b) the source of the information contained in it,

(c) the way in which or the circumstances in which the information was supplied or received, or

(d) the way in which or the circumstances in which the document concerned was created or received."

6. I turn now to Code D. Paragraph 3.1 of Code D provides:

"3.1 A record shall be made of the suspect's description as first given by a potential witness. This record must:

(a) be made and kept in a form which enables details of that description to be accurately produced from it, in a visible and legible form, which can be given to the suspect or the suspect's solicitor in accordance with this Code; and

(b) unless otherwise specified, be made before the witness takes part in any identification procedures under paragraphs 3.5 to 3.10, 3.21 or 3.23.

A copy of the record shall where practicable, be given to the suspect or their solicitor before any procedures under paragraphs 3.5 to 3.10, 3.21 or 3.23 are carried out. See Note 3E"

7. Paragraph 3.12 of Code D provides:

"3.12 Whenever:

(i) a witness has identified a suspect or purported to have identified them prior to any identification procedure set out in paragraphs 3.5 to 3.10 having been held; or

(ii) there is a witness available, who expresses an ability to identify the suspect, or where there is a reasonable chance of the witness being able to do so, and they have not been given an opportunity to identify the suspect in any of the procedures set out in paragraphs 3.5 to 3.10,

and the suspect disputes being the person the witness claims to have seen, an identification procedure shall be held unless it is not practicable or it would serve no useful purpose in proving or disproving whether the suspect was involved in committing the offence. For example, when it is not disputed that the suspect is already well known to the witness who claims to have seen them commit the crime."

8. Having read out the relevant statutory provisions and Code provisions, I must now turn to the facts of the present case.
Part 2: The facts
9. The facts as they emerge from the case stated by the justices are as follows. On 10 January 2006, two police officers, PC Leanne and PC Cassidy, saw a Fiat motor vehicle being driven along Gaisford Street, London NW5. They questioned the driver of that vehicle, who said that he was Robert Vernon, born on 18 September 1985 in London and living at 30 Belsize Park, London NW3. Whilst the police officers carried out a PNC check upon those details, the driver fled the scene. The police officers duly made a note of the incident, but they did not make any note of the driver's description.
10. On or about 24 January 2006, PC Leanne attended a briefing at which a slide of Mr Pierre Wellington, the appellant, was displayed. PC Leanne identified the person shown in the slide as being the same as the driver whom he had stopped on 10 January. Two months later, on 24 March 2006, PC Leanne was on duty at Kentish Town Police Station. Whilst in the custody suite, PC Leanne encountered Mr Pierre Wellington, the appellant, and identified him as being the driver whom he had stopped on 10 January.
11. Following that identification, Mr Wellington was arrested for offences of driving whilst disqualified, driving without insurance and obstructing a police officer in the execution of his duty. Upon arrest, Mr Wellington was recorded as saying: "I don't know what you're on about, it wasn't me".
12. On the evening of 24 March, Mr Wellington was interviewed in connection with the incident of 10 January. Mr Wellington answered "no comment" to all questions. No identification parade was held. On 25 March 2006, an information was laid against Mr Wellington, charging him with three offences. These were: (1) that on 10 January 2006 at Gaisford Street in London NW5 he drove a vehicle whilst disqualified from holding or obtaining a driving licence; (2) on the same date he drove a motor vehicle without insurance; (3) on the same date he wilfully obstructed PC Leanne in the execution of his duty.
13. The information was heard by the justices on 20 July 2006. The prosecution called four witnesses: PC Leanne, who gave evidence about the incident, and also gave evidence about his subsequent identification of the appellant, Mr Wellington; PC Cassidy, who gave evidence about the incident on 10 January; and PC Brine, who gave evidence concerning the process whereby details are recorded on the Police National Computer. PC Brine also gave evidence concerning the interview with Mr Wellington on the evening of 24 March. The fourth witness called by the prosecution was PC Evans, who dealt with the arrest of Mr Wellington for these alleged offences. Finally, the prosecution put in evidence three documents: first, there was an extract from the PNC computer record; second, an extract from the court register showing that Mr Wellington was disqualified from driving; and third, a copy of the slide which PC Leanne said he had seen at the briefing session on 24 January 2006.
14. The print-out from the PNC showed the name and address of Mr Wellington. It showed his date of birth as 18 September 1985. It gave various other details, and it contained the following entry:

"ALIAS NAMES (2)

1 VERNON, ROBERT

2 WELLINGTON, PIERRE"

15. The defendant did not give evidence at the trial. There was legal argument at the trial concerning two important matters, namely the admissibility of PC Leanne's identification evidence and the weight to be attached to the PNC evidence: see paragraphs 4 and 5 of the case stated. The justices decided, pursuant to section 78 of PACE, to admit the identification evidence given by PC Leanne. Furthermore, they regarded as relevant the PNC record showing that Mr Wellington had previously used the alias Robert Vernon: see paragraph 7 of the case stated. Having considered the evidence, the justices convicted Mr Wellington of the offences alleged. When announcing their decision, they gave the following reasons:

"This case rests on the quality of the evidence of identification given by PC Leanne. Was it the same person stopped, seen on the briefing slide and seen subsequently at Kentish Town Police Station? We have considered the 'Turnbull Guidelines'. We have considered the circumstances, length etc of the initial sighting, the viewing of the slide and the meeting with Mr Wellington at the police station. We are satisfied that the evidence of identity is good.

There is evidence to support the evidence of identity in the use of the alias 'Robert Vernon' previously by Mr Wellington - the same name was given by the person stopped. Furthermore Mr Wellington has elected not to give evidence. We do draw an adverse inference from that and find that his failure to give evidence supports the Prosecution case. We therefore find all matters proved."

16. Mr Wellington was aggrieved by the justices' decision. Accordingly, he brought the present appeal.
Part 3: The present appeal
17. By an appellant's notice filed in the Administrative Court on 16 November 2006, Mr Wellington appealed by way of case stated against the justices' decision dated 20 July 2006. The case stated by the justices identified four questions for the opinion of the High Court as follows:

"(1) In the light of the accepted breaches of Code D of the Code of Practice issued under the Police and Criminal Evidence Act 1984, were we correct in admitting the identification evidence of PC Leanne?

(2) Were we correct in placing weight upon the fact that the appellant's PNC record showed that he had used the alias Robert Vernon without further evidence of the circumstances in which it had been used?

(3) Were the reasons given by us concerning the decisions to admit the identification evidence and to convict the appellant sufficient?

(4) Was there sufficient evidence before us to enable us to convict the appellant?"

18. By his skeleton argument supplementing the appellant's notice, the appellant contended that the answer to all four questions was "no". Accordingly, he invites this court to quash his conviction.
19. The appellant's appeal was argued yesterday. Mr Hugh Southey represents the appellant; Mrs Julia Needham represents the Director of Public Prosecutions, who is respondent to this appeal. I am grateful to both counsel for their clear and thorough submissions, both oral and written. I shall now address the questions formulated by the justices following the order set out in the case stated.
Part 4: The admissibility of the identification evidence of PC Leanne
20. As previously mentioned, the prosecution accepted at trial that the police officers had been in breach of paragraphs 3.1 and 3.12 of Code D. A breach of paragraph 3.1 occurred because neither PC Leanne nor PC Cassidy made a note of the driver's description on or shortly after 10 January 2006. A breach of paragraph 3.12 occurred because the police failed to hold an identification parade after Mr Wellington denied being the driver of the Fiat motor vehicle.
21. Mr Southey submits that the breach of paragraph 3.1 is no mere technicality; it is an omission which deprives the defendant of one valuable means of challenging the identification: see R v Hickin [1996] Crim LR 584 at 586. I accept Mr Southey's submission in this regard. The breach of paragraph 3.1 which occurred in this case is certainly not a technicality. It is a material matter which weighs against the prosecution essentially for the reasons stated in Hickin.
22. I turn now to the failure to hold an identification parade. Mrs Needham for the prosecution submits that this breach was of less consequence. PC Leanne had seen a slide of Mr Wellington on 25 January and had identified Mr Wellington as the offender. In those circumstances, it was inevitable that PC Leanne would pick out Mr Wellington as the offender at an identification parade. I see some force in this argument. In the circumstances of this case, the breach of paragraph 3.12 seems to me somewhat less serious than the breach of paragraph 3.1.
23. Mr Southey urges that Mrs Needham's argument does not apply to PC Cassidy. PC Cassidy did not see the slide on 24 January. That is true. On the other hand, PC Cassidy did not give identification evidence at trial. The prosecution did not rely on PC Cassidy's evidence for this purpose.
24. Let me now draw the threads together. Two breaches of Code D occurred. Both breaches must weigh in the balance against the prosecution. The existence of those breaches called into question the admissibility of the identification evidence given by PC Leanne.
25. The justices duly considered that question. They noted the breaches of Code D: see paragraphs 4 and 5 of the case stated. They expressly applied the test set out in section 78 of PACE: see paragraph 7.1 of the case stated. In the exercise of their discretion under section 78 of PACE, the justices decided to admit the identification evidence given by PC Leanne.
26. In my judgment, this was an exercise of discretion which was open to the justices. They reached a decision which was permissible on the facts before the court. I do not accept that the justices either disregarded relevant matters or took into account irrelevant matters. In the result, therefore, my answer to question (1) in the case stated is "yes".
Part 5: Weight attached to the PNC record
27. The first point to note in relation to this issue is that there has been a shift in the appellant's position between trial and appeal. At trial, Mr Wellington's case was that minimal weight should be attached to the PNC evidence of the alias Robert Vernon in absence of any details as to when and where that alias had been used: see paragraph 4 of the case stated. On appeal, however, the appellant's case is that the PNC evidence of the alias Robert Vernon is inadmissible because the requirements of section 117 of the 2003 Act have not been met.
28. The specific requirements of section 117, which Mr Southey contends were not satisfied, are those contained in sub-section (2)(b), sub-section (2)(c) and sub-section (5)(b). Mr Southey also submits that, because of the inadequacy of the PNC details, the court could not consider the matters set out in sub-section (7).
29. In relation to this issue, both counsel have drawn attention to two relevant decisions of the Court of Appeal, namely R v Hanson [2005] EWCA Crim 824; [2005] 1 WLR 3169, and R v Humphris [2005] EWCA Crim 2030. In Hanson at paragraph 17 the Court of Appeal gave the following guidance concerning evidence of previous convictions:

"It follows from what we have already said that, in a conviction case the Crown needs to decide, at the time of giving notice of the application, whether it proposes to rely simply upon the fact of conviction or also upon the circumstances of it. The former may be enough when the circumstances of the conviction are sufficiently apparent from its description ...

But where, as will often be the case, the Crown needs and proposes to rely on the circumstances of the previous convictions, those circumstances and the manner in which they are to be proved must be set out in the application. There is a similar obligation of frankness upon the defendant, which will be reinforced by the general obligation contained in the new Criminal Procedure Rules to give active assistance to the court in its case management (see rule 3.3). Routine applications by defendants for disclosure of the circumstances of previous convictions are likely to be met by a requirement that the request be justified by identification of the reason why it is said that those circumstances may show the convictions to be inadmissible. We would expect the relevant circumstances of previous convictions generally to be capable of agreement, and that, subject to the trial judge's ruling as to admissibility, they will be put before the jury by way of admission. Even where the circumstances are genuinely in dispute, we would expect the minimum indisputable facts to be thus admitted. It will be very rare indeed for it to be necessary for the judge to hear evidence before ruling on admissibility under this Act."

30. In Humphris, the defendant was charged with certain sexual offences. The prosecution placed reliance not only upon the defendant's previous convictions for sexual offences, but also upon the methods which he employed in connection with those previous offences. For this purpose, the prosecution not only obtained a standard PNC print-out of antecedents, the prosecution also obtained additional details from the PNC which did not form part of the standard print-out. The Court of Appeal held that the trial judge was wrong to admit those additional details. Those details must have come from the victims of the earlier assaults. Accordingly, the police officers who input such data into the PNC would not have had personal knowledge of the matters in question: see paragraphs 15 and 16 of the Court of Appeal's judgment. The Court of Appeal also endorsed the guidance which had previously been given in Hanson at paragraph 17.
31. Bearing in mind the Court of Appeal's reasoning and guidance in Hanson and Humphris, let me now return to the PNC print-out in the present case. It should be noted first of all that this is a standard print-out. It does not contain any additional details of the kind which featured in Humphris. The print-out contains Mr Wellington's name, address, date of birth and so forth. It then has the entry concerning aliases which I read out in Part 2 above. In my judgment, the inescapable inference from this document is that the police officers who supplied the information "had or may reasonably be supposed to have had personal knowledge of" the fact that Mr Wellington was using the alias Robert Vernon. There is no analogy between the PNC details which were wrongly admitted in Humphris and the PNC entry about aliases in the present case. I therefore reject the submission that the requirements of section 117(2)(b) were not complied with. For essentially the same reasons, I reject the suggestion that the requirements of section 117(2)(c) have not been complied with.
32. I turn next to section 117(5)(b). Mr Southey urges that the relevant police officer could well have a recollection of the aliases, especially if he had only recently input such data into the system. In my judgment, this is the wrong approach to the sub-section. If pressed to its logical conclusion, this argument could lead to the exclusion of many relevant and uncontroversial details commonly found in a PNC print-out. The crucial fact is that alias names are not unusual. Police officers keep a record of alias names given by offenders as a matter of routine. Although it is possible that police officers will have a recollection of alias names given, these are not the kind of details of which police officers could reasonably be expected to retain a recollection. I am satisfied that in this case the requirements of section 117(5)(b) were met.
33. Finally one comes to section 117(7). I see nothing in the material before the justices which should have caused them to give or to consider giving a direction under section 117(7). It is significant that during the trial Mr Wellington did not dispute either the admissibility or the accuracy of the details on the PNC print-out. If he did dispute those matters, in accordance with the guidance given in Hanson, he ought to have made that plain either before or during the trial.
34. Mr Southey has developed a related argument that admission of the PNC evidence was in breach of the European Convention on Human Rights, Article 6(3)(d). That Article provides:

"Everyone charged with a criminal offence has the following minimum rights ...

(d) to examine or have examined witnesses against him."

35. It is quite true that Mr Wellington's lawyers did not have an opportunity to cross-examine the police officers who input the data about Mr Wellington's aliases into the PNC. On the other hand, this is personal information of a routine nature, which was quite properly contained in an official record. In my judgment, this is not the kind of material upon which Article 6(3)(d) bites.
36. Let me now draw the threads together. The argument that the alias section of the PNC print-out should have been excluded for non-compliance with section 117 was not put to the justices. Now that the argument has been explored, I am satisfied that it is unsound. Once that evidence had been properly admitted, the justices were perfectly entitled to attach weight to it. The fact is that the driver of the Fiat on 10 January gave the very same name as one of Mr Wellington's aliases.
37. For all the above reasons, I conclude that the PNC print-out was rightly admitted and that the justices were entitled to attach to it such weight as they did attach. Accordingly, my answer to question (2) in the case stated is "yes".
Part 6: The reasons given by the justices
38. Mr Southey submits that the reasons given orally by the justices for their decision were deficient. Those reasons do not adequately address the failure to comply with Code D. They do not indicate that the justices took any account of this breach when they were evaluating the identification evidence.
39. In advancing this submission, Mr Southey has to overcome the obstacle created by the decision of this court in R v Southend Stipendiary Magistrate ex parte Rochford District Council, 22 April 1994. In that case, Judge J held that there is no general duty on magistrates to give judgments or to state reasons for their decisions. The failure to express reasons at the time of a decision does not vitiate the decision.
40. Mr Southey submits that Judge J's decision is clearly wrong and I should decline to follow it. In support of this submission, Mr Southey relies upon the following authorities: Save Britain's Heritage v Number 1 Poultry Limited [1991] 1 WLR 153; Hadjianastassiou v Greece [1993] 16 EHRR 219; North Range Shipping Limited v Seatrans Shipping Corp [2002] EWCA Civ 405; [2002] 1 WLR 2397; English v Emery Reimbold & Strick Limited [2002] EWCA Civ 605; [2002] 1 WLR 2409.
41. I am not persuaded by this argument. The decision of Judge J in R v Southend Stipendiary Magistrate has now stood for 13 years. It has an obvious impact upon the business of Magistrates' Courts throughout England and Wales. It is not appropriate, at least for a court at this level, to depart from Judge J's decision and declare that it was clearly wrong.
42. In Filmer v Director of Public Prosecutions [2006] EWHC 3450 Admin, the Divisional Court held that magistrates are not required to deliver a judgment when convicting a defendant. The court approved the following statement in the 2006 edition of Archbold:

"The essence of the exercise is to inform the defendant why he has been found guilty and this [can] usually be done in a few simple sentences."

The court added that additional reasons need only be supplied by the magistrates if there was an appeal by way of case stated.

43. In the present case, at the end of the hearing the justices did explain in a few simple sentences why they had found Mr Wellington guilty. Subsequently, in the case stated the justices explained their reasoning more fully at paragraphs 4 to 7. In essence, the justices took the view that, despite the breaches of Code D, the identification evidence was strong and should be admitted. That evidence, in conjunction with other matters, was sufficient to establish that Mr Wellington had been the Fiat driver on 10 January 2006.
44. I do not accept that the justices' decision was vitiated by insufficiency of reasons. My answer to question (3) posed in the case stated is "yes".
Part 7: Conclusion
45. The answer to question 4 follows from the reasoning in Parts 4, 5 and 6 above. In my judgment, the evidence before the justices was sufficient to enable them to convict. The answer to question (4) must be "yes".
46. Let me now draw the threads together. For the reasons set out above, my answer to each of the four questions posed by the justices at the end of the case stated is "yes". Accordingly, this appeal is dismissed.
47. MS SMITH: My Lord, there are two matters I would like to raise. One is in relation to a representation order for the attendance of instructing solicitors yesterday. I ask that an order be made.
48. MR JUSTICE JACKSON: Yes, that seems to be entirely appropriate. I make that order.
49. MS SMITH: Thank you. The second matter relates to permission for written submissions to be made within 14 days in relation to whether or not there is a question of public importance that requires further consideration. That will be a matter for Mr Southey. I am not in a position to address you on that today.
50. MR JUSTICE JACKSON: There is no problem with that, is there?
51. MS NEEDHAM: No.
52. MR JUSTICE JACKSON: Very well. Permission to make written submissions within 14 days on that question.
53. MS SMITH: Thank you, my Lord.
54. MS NEEDHAM: My Lord, my understanding is that 14 days is now available as a right, as it were, but nonetheless it would be helpful, I am sure, to make that pronouncement.