Newman v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judgment Date | 25 March 2009 |
| Date | 25 March 2009 |
| Court | Divisional Court |
Divisional Court, CO/9602/2008
Richards LJ and Teare J
B Irwin (instructed by Punatar & Co) for N; S Sharghy (instructed by Director of Legal Services, New Scotland Yard) for the Commissioner
Whether, on an application for a football banning order, the Commissioner was entitled to rely on (a) hearsay evidence without providing the underlying source material and (b) a compilation of clips from CCTV footage without providing the unedited footage
The Commissioner sought a football banning order against N under s14B Football Spectators Act 1989 and, in support of the application, relied on a statement of PC D and a compilation of CCTV footage. The statement of PC D purported to present a 'profile' of N based on information gathered from intelligence documents, informants and police spotters, relating to some 13 occasions when it was alleged he had been seen to be close to, or involved in, violence or disorder or in the presence of persons known to be 'risk supporters' and associated in such violence or disorder. Disclosure was given of the underlying information in relation to only 2 of the incidents. The CCTV footage consisted of short clips of a total length of about 5 minutes, showing various incidents in which it was alleged that N was seen to be involved in or contributing to violence or disorder.
N submitted that it would be unfair to admit the statement of PC D into evidence in the absence of disclosure of the material on which it was based, since he would be unable to challenge properly the contents of the statement. He also submitted that it was unfair to admit the CCTV without disclosure of the footage which showed surrounding events so as to put N's conduct into context.
The Commissioner contended that N was not entitled to the intelligence reports, since they were covered by public interest immunity, disclosure would severely impact their value as intelligence and would frustrate the legislative intention by placing an onerous burden on the Commissioner. It was noted that N could cross examine PC D and other officers who were in attendance to give evidence of matters going towards N's profile and his conduct during some of the incidents shown on the compilation disc, and those officers were in a position to give direct first hand evidence in relation to some of those incidents. It was argued that the fact that the original footage or source information may have shown that N was not engaged in violent disorder at other times, or was not in the company of risk supporters at other times, did not diminish the ability of the court to place appropriate weight on the evidence actually relied on, in the context of the evidence as a whole, in order to determine whether the Commissioner had established the statutory criteria to the required standard.
The justices ruled in favour of admitting the evidence, holding that they would be able to give appropriate weight to statements made as a compilation of hearsay intelligence documents, and noting that N would have an opportunity to cross examine the police witnesses on the evidence and would have the opportunity to provide a context to the footage through giving evidence and cross examining the witnesses. The ruling was challenged by way of case stated, in which 3 questions were posed, namely whether the justices had been correct (1) to admit the video evidence, (2) to admit the statement of PC D and (3) to conclude that there were no directly applicable disclosure requirements applicable to the Commissioner under s14B Football Spectators Act 1989.
Richards LJ:
1. This is an appeal by way of case stated in respect of rulings made by the Highbury Corner Magistrates' Court on 27 June 2008, in the course of an application by the Metropolitan Police Commissioner for a football banning order under s14B of the Football Spectators Act 1989, as amended, against the appellant and a number of other individuals. An application may be made under s14B for a banning order in respect of persons who have "at any time caused or contributed to any violence or disorder in the United Kingdom or elsewhere".
The proceedings before the Justices
2. The ruling under challenge related to 2 items of evidence that the Commissioner sought to adduce in support of the application, namely (i) a witness statement by a police officer, a PC Davies, and (ii) compilation disc of CCTV footage.
3. The witness statement of PC Davies purported to present a 'profile' of the appellant, based on information gathered from intelligence documents, informants and police spotters, relating to some 13 occasions when, as was alleged, he had been seen to be close to, or involved in, violence or disorder or in the presence of persons known to be 'risk supporters' and associated in such violence or disorder. By way of example, the first occasion referred to is described in these terms in the statement:
"On 05.11.2006, Arsenal played away at West Ham. Pre and post match, Jack Newman was seen in company with the Arsenal risk group and first identified by the police."
There was specific disclosure of underlying material relating to 2 of the incidents referred to in the statements, but not in relation to the other 11.
4. The compilation disc of CCTV footage was prepared by a different officer, PC Harrison, but it was covered by a second witness statement of PC Davies. It consisted of short clips of a total length of about 5 minutes, showing various incidents in which the appellant, as was alleged, was seen to be involved in or contributing to violence or disorder. The identification of the appellant in the clips was done by PC Davies using his own knowledge and also the profile already mentioned. The justices did not look at the compilation before making their ruling.
5. The rival submissions made to the justices in respect of the evidence in question were, in summary, as follows.
6. The submission on behalf of the appellant was that it would be unfair to admit the first witness statement of PC Davies into evidence, in the absence of disclosure of the disclosure of the material on which it was based. Without disclosure he would be unable to challenge properly the contents of the statement. For example, if he denied presence and wished to challenge the allegations made on a particular date, PC Davies would be in no position to respond properly to cross examination. Whilst comment could be made and explanations provided if and when the appellant gave evidence, this did not rectify the fundamental inability to challenge the evidence relied upon against him.
7. As to the compilation disc, the submission of the appellant was that all the footage making up the compilation disc should be disclosed, as there might be other parts of the footage which showed surrounding events leading to actions by the appellant or putting his actions into context. It was submitted to be fundamentally unfair to adduce such a compilation without disclosure of the source material: the compilation amounted to cherry picking so as to present the best evidence to support the application against him.
8. For the Commissioner, it was submitted that the appellant was not entitled to the intelligence reports, since they would otherwise be covered by public interest immunity and their disclosure would severely impact their value as intelligence and would frustrate the legislative intention by placing an onerous burden on the Commissioner. The appellant could cross examine PC Davies. In addition, a number of other police officers were in attendance to give evidence of matters going towards the appellant's profile and the appellant's conduct during some of the incidents shown on the compilation disc, and those officers were in a position to give direct first hand evidence in relation to some of those incidents. The appellant was not deprived of his opportunity to challenge the evidence given in relation to those matters. The fact that the original footage or source information may have shown that he was not engaged in violent disorder at other times, or was not in the company of risk supporters at other times, did not diminish the ability of the court to place appropriate weight on the evidence actually relied on, in the context of the evidence as a whole, in order to determine whether the Commissioner had established the statutory criteria to the required standard. It was said that the original information and footage did not undermine the Commissioner's case or assist the appellant's case. The appellant had not raised any issue as to identification, whether in relation to profile or the compilation disc, which might, had it been raised, have called for further disclosure of the underlying information or footage.
9-10. The justices ruled in favour of admitting the evidence, for reasons given in para 12 of the case stated as...
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