R v Callaghan and Others
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,MR. JUDGE,LORD JUSTICE O'CONNOR |
| Judgment Date | 27 March 1991 |
| Judgment citation (vLex) | [1987] EWCA Crim J1014-1 |
| Docket Number | Nos. 378/R/87, 379/R/87, 380/R/87, 381/R/87, 382/R/87 383/R/87,Nos. 378/R/87, 379/R/87, 380/R/87, 381/R/87, 382/R/87, and 383/R/87 |
| Court | Court of Appeal (Criminal Division) |
[1987] EWCA Crim J1014-1
The Lord Chief Justice of England (Lord Lane)
Lord Justice O'Connor
and
Lord Justice Stephen Brown
Nos. 378/R/87, 379/R/87, 380/R/87, 381/R/87, 382/R/87, and 383/R/87
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
LORD GIFFORD, Q.C. and MR. J. WOOD appeared on behalf of the Appellants Hunter and McIlkenny.
MR. M. MANSFIELD and MR. N. BLAKE appeared on behalf of the Other Appellants.
MR. I. JUDGE, Q.C. and MR. S. MITCHELL, Q.C. appeared on behalf of the Crown.
This is an application made on behalf of these appellants on this pre-appeal review. The gist of the application made by Lord Gifford and Mr. Mansfield on behalf of their respective clients is that the Court should not be allowed to read or inspect, or, if you like, should debar itself from reading or inspecting, any material save that directly connected with the trial of these men at Lancaster before Mr. Justice Bridge and a jury, the material which arises from the application for leave to appeal in that case and such further material as the parties, the appellants on the one hand and the respondents on the other, see fit to put before the Court by way of documentary evidence or by tendering witnesses.
There is no need to go into any detail of the facts of the case. But it is necessary to give some indication of the sort of material which has arisen in this case, because there has been a plethora of all sorts of proceedings, all of which, in the light of the submissions made by counsel for the appellants becomes at least of potential relevance.
First of all there was a trial before Mr. Justice Swanwick and a jury of a number of prison officers at Vinson Green Prison in Birmingham, who were charged with a variety of assaults upon the appellants. That trial resulted in the acquittal of the prison officers concerned.
There was then a civil action instituted by these men on legal aid against the police, inter alia, and also some prison officers, and also the Home Office as the power behind the individual defendants, for assaulting them. That action produced a preliminary hearing before Mr. Justice Cantley, who rejected a submission that the proceedings were an abuse of the process of the Court. That in its turn was followed by a hearing in the Court of Appeal before Lord Denning, the Master of the Rolls, Lord Justice Goff and Sir George Baker, who allowed the appeal, holding, among other things, that the proceedings were an abuse of the process of the Court, and that in its turn resulted in a hearing before the House of Lords, where the main speech was delivered by Lord Diplock upholding the views of the Court of Appeal.
There was furthermore an inquiry carried out by Mr. Owen, who was a high ranking officer of the Lincolnshire Constabulary, into allegations of violence which had been made against the prison officers arising out of the present case, the Birmingham Bombing case.
Finally there was an inquiry conducted by the Devon and Cornwall Police, this time into allegations made by Mr. Thomas Clarke, who had been a police constable in the relevant constabulary in Birmingham, who had given a statement alleging that he had observed certain acts of, if not violence, harassment, committed by the police upon these appellants after their arrest.
Against that background the appellant's original request was by a letter dated 15th September, received in the office on the 18th, the material part of which reads as follows: "Counsel are concerned that should the Devon and Cornwall material be considered by the Court in advance of the appeal, a subsequent application might have to be made for those members of the Court to disqualify themselves."
That letter was delivered personally by a solicitor acting on behalf of some of the appellants. She was asked by the office whether it was truly only the Devon and Cornwall material which was the subject of the proposed embargo, and she confirmed that it was.
Then came a Joint Opinion by Lord Gifford, Mr. Ferguson and Mr. Mansfield. That arrived on 23rd September. It was headed "The Devon and Cornwall Constabulary Material". Paragraph 4 of that Opinion sets out the main argument, which reads as follows: "In our view this provision" – referring to section 23(1) of the Criminal Appeal Act 1968 – "does not allow the Court to receive as evidence the statements of people who are available to be called as witnesses. It deals with materials which are in themselves forms of admissible evidence, while the remaining paragraphs deal with evidence from witnesses."
On the 28th of last month the appellants were informed, on my instructions, that the Court would accede to this suggestion, that they should not read any of the Devon and Cornwall material, save in so far as it was raised by the parties.
Then came a further Joint Opinion, dated the 1st of October this year, from all the appellants' counsel extending their original proposed injunction and suggesting that the Court should only read the documents relating to the bomb trial and no more.
This pre-appeal hearing gives us the opportunity to examine that proposal after hearing very helpful argument from counsel, if we may say so.
Lord Gifford puts forward his reasons in the following way. First of all he submits that in an appeal based on an application to hear fresh evidence in which the Court must assess the credibility of witnesses giving oral testimony, the Court must decide the appeal according to the evidence it has heard, unaffected by extraneous witness statements which may not have been challenged or tested by cross-examination.
His second point is this. That proposition is an application of the general principle that Courts do not assume any investigative function. He submits that the function of this Court, Court of Appeal (Criminal Division), is to hear evidence and to receive other material which is proffered by the adversaries, the appellants on the one hand and the respondents on the other. That is in a case where the parties are properly represented, as of course they are here.
He cites in support of that contention a passage from Professor Cross's treatise on Evidence, Sixth Edition at page 238, which runs as follows: "The elucidation of facts by means of questions put by parties or their representatives to witnesses summoned, for the most part, by them, called mainly in the order of their choice, before a Judge, acting as umpire rather than inquisitor, is the essential feature of the English 'adversary' or 'accusatorial' system of justice."
His third point is based upon the provisions of section 23 of the Criminal Appeal Act 1968. His submission with regard to that is that that provision does not empower the Court to receive written statements unless the parties consent. The word "production", he submits, does not mean that the Court should read any document of its own volition. Secondly, whatever the situation may be, he suggests, about potential exhibits, witnesses are different.
He draws our attention to a decision of this Court before the Criminal Appeal Act 1968, the case of Gordon (1963) 3 All E.R. 175, which of itself perhaps is not of very great relevance, if we may say so respectfully. But it does have the effect of drawing attention to the change which has taken place in both the Act and the Rules made thereunder, because the 1907 Act, which was precursor of the 1968 Act, in its section 9 provided as follows: "For the purposes of this Act, the Court of Criminal Appeal may, if they think it necessary or expedient in the interests of justice – (a) order the production of any document, exhibit, or other thing connected with the proceedings, the production of which appears to them necessary for the determination of the case ….". That is very similar to the wording of section 23 of the present Act.
But rule 32 made under that Act reads as follows: "The Court of Criminal Appeal may, at any stage of an appeal, whenever they think it necessary or expedient in the interest of justice so to do, on the application of an appellant or respondent, order any document, exhibit, or other thing connected with the proceedings, to be produced to the registrar or before them, by any person having the custody or control thereof….".
Contrast that with section 21 of the 1968 Act, which reads as follows: "The registrar shall –…. (b) obtain and lay before the Court of Appeal in proper form all document's, exhibits and other things which appear necessary for the proper determination of the appeal or application."
Those are the principal arguments put forward by Lord Gifford to found his submission that we should not look in effect at anything except the documents in the case and such material as the parties invite us to look at.
Mr. Mansfield for his part endorses those arguments, and adds the further submission that it is dangerous to allow the Court to have an investigative role on the basis that the Court may think it has not been influenced by extraneous material when in fact it has been so influenced. He gave us a graphic example from his own experience of an occasion when just such a matter occurred. Fortunately he was there to put it right. Otherwise, if he had not been there, injustice might very well have been done.
The alternative submission put both by Lord Gifford and endorsed by Mr. Mansfield is that even if the Court is entitled to look at these matters, in its discretion it should not, in the particular circumstances of this case at least, embark upon such an...
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