Attorney General's Reference (No 2 of 2002)
| Jurisdiction | England & Wales |
| Judgment Date | 07 October 2002 |
| Neutral Citation | [2002] EWCA Crim 2373 |
| Docket Number | No: 200205110/S4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 07 October 2002 |
Reference by the Attorney General Under S.36 Criminal Justice Act 1988
[2002] EWCA Crim 2373
Lord Justice Rose
(Vice President of the Court of Appeal, Criminal Division)
Mr Justice Pitchers
Mr Justice Treacy
No: 200205110/S4
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
MR R HORWELL appeared on behalf of the ATTORNEY GENERAL
THE VICE PRESIDENT: There is before the Court a reference under section 36 of the Criminal Justice Act 1972 whereby the Attorney-General seeks the Court's answer to three questions in relation to evidence where there are photographic images from at the scene of an offence.
G was tried on indictment on one count of riot, contrary to section 1(1) of the Public Order Act 1986. A video film was taken. The quality was not of the best. It was the Crown's case that G was one of those to be seen in the film. The Crown sought to prove his identity through the evidence of two police constables.
The first was D, who was a member of the police video viewing team set up after the riot. He spent a considerable number of hours viewing the film and, in consequence, became familiar with the appearance of persons to be seen in it. In consequence, he was put forward as a witness with specialist knowledge. He did not know G. By chance, after he had viewed the film many times, D saw G and, because of his study of the films, he recognised him as being one of those depicted. His identification was proffered in evidence, in accordance with Clare & Peach [1995] 2 Cr App R 333. No objection was taken to the admissibility of that evidence and the witness was cross-examined on the basis that he was mistaken.
The second police officer was Police Constable G. He was an uniformed community constable, who had, over a period of time, had a number of dealings with G, whom he had known for about 5 years reasonably well. Because of his local knowledge, Police Constable G was asked to look at the film. When he saw it, under controlled conditions, he identified from his own knowledge of him, G as being one of the rioters. Just before Police Constable G was called to give evidence, the trial judge, His Honour Judge Woodward, invited submissions as to the admissibility of his evidence. Having heard submissions, he ruled that the identification, through recognition, was, in principle, inadmissible. He said that where a witness:
"has no specific skills, has no abilities and has no experience other than that which the jury themselves have," caution should be exercised in allowing evidence from such a witness to go before the jury. The judge described such evidence as being of "very light weight" and questioned the extent to which it might help the jury. He ruled that because in the case before him the original evidence upon which the recognition had been made was available to the jury, that is to say the video film taken at the scene, Police Constable G's evidence should not be admitted. He added that the jury was in a better position than Police Constable G if the man on the film was the defendant because, unlike Police Constable G, the jury could view the film and at the same time compare the images on the screen with the defendant in the dock. The judge went on to rule that the prosecution could call Police Constable G to describe any peculiarities about the defendant, which the jury could not glean from looking at or listening to him, such as his gait and any changes in his appearance since the officer had last seen him.
Following further submissions, however, the judge excluded further evidence from Police Constable G's, which had been served briskly by way of additional evidence in the light of the indication which he had given, because it had been served late and the defence had been unable to meet it. Accordingly, Police Constable G's identification, through recognition, not having been admitted, at the close of the prosecution case, the judge directed that the jury return a verdict of not guilty because of the insufficiency of the evidence on the question of identity.
It is submitted by Mr Horwell, who did not appear in the court below, on behalf of the Attorney-General, that the learned judge's ruling was contrary to well established principles of law, in that it failed to distinguish the material difference between Police Constable G and the jury. The judge, submits Mr Horwell, introduced two inappropriate new tests, in relation to admissibility of evidence of this kind. First, as to whether the video film was available, the judge's conclusion that, if it was, the evidence of the witness was inadmissible, was an erroneous misapplication of Taylor v Chief Constable of Chester 84 Cr App R 191. Secondly, submits Mr Horwell, the judge misapplied Clare & Peach, in ruling that, when the video film was available, recognition evidence was only available if a witness had some special skill or knowledge.
In letters to this Court, from counsel who represented the defendant at trial and from the trial judge, both accept that the judge's ruling was wrong. In fairness to counsel for the defence, who, because of the view he takes, has not thought it appropriate or necessary for him to attend this Court, it should be said that the judge's ruling did not emanate from any submissions made by counsel. It was the judge who started the particular ball rolling.
Mr Horwell, in his written submissions, has helpfully reviewed the relevant authorities, to which briefly it is necessary to turn. In Fowden & White [1982] Crim LR 588, a video film of theft from a store was available to be played to the jury. A police officer and store detective, who knew the two defendants, identified them as the thieves shown in the film. The defence contended that such evidence should not be admitted because it was for the jury alone, looking at the film, to determine the issue. The Court of Appeal, in which Lord Lane CJ presided, said there was no reason in principle why the Crown could not call a witness who knew a defendant and who identified him as being the person on the film. The conviction was quashed in that case because the prejudicial effect of the identifying evidence outweighed its probative value.
In Kajalave v Noble 75 Cr App R 149, a film taken of a public disturbance was shown on a BBC news programme and a copy of it was available to be played at court. A witness, who saw the news broadcast, recognised one of those involved as the defendant. He knew the defendant very well. He gave evidence before the justices and identified the defendant as being shown in the film. There is no suggestion in...
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