R v Clare ; R v Peach
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 06 April 1995 |
| Judgment citation (vLex) | [1995] EWCA Crim J0406-16 |
| Docket Number | No. 93/4885/X3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 06 April 1995 |
[1995] EWCA Crim J0406-16
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Owen and the Recorder of London (Sir Lawrence Verney)
No. 93/4885/X3
93/4886/X3
MR ROGER J B GREEN appeared on behalf of THE APPELLANT
MR NICHOLAS H SIMMONDS appeared on behalf of THE CROWN
Thursday 6 April 1995
THE LORD CHIEF JUSTICEOn 2 July 1993, at Bolton Crown Court these appellants were convicted of violent disorder. On 30 July, Clare was sentenced to 80 hours Community Service and ordered to pay £600 towards the prosecution costs. Peach was sentenced to one months imprisonment.
A co-accused, Lee Blades, pleaded guilty to the same offence and was sentenced to three month's imprisonment. Two other co-accused, Garbett and Payne, were each acquitted.
The appellants renewed their applications for leave to appeal against conviction after refusal by the single judge. On 20 June 1994, the full court granted them leave.
The case arose from the aftermath of a football match. On 7 September 1991, Bolton Wanderers and West Bromwich Albion met in Bolton. The applicants were West Bromwich supporters. They were seen and filmed in common with others as they arrived late at the ground. After the match, together with other West Bromwich supporters, they set off towards the railway station but in fact took a wrong turning. Whether this was deliberate or accidental was not established conclusively. They proceeded on foot down a road near the town centre where there were two public houses frequented by Bolton supporters. There were three video cameras permanently fixed on buildings so that they could record the activities of those at ground level. What they filmed could be viewed at a communication centre and five video recorders registered what occurred.
The prosecution case was that a brief fracas flared up between supporters of the two clubs amounting to violent disorder and these two appellants took part in it. The incident was brief and was recorded by the video cameras. It began when a missile was thrown towards the West Bromwich supporters. The Crown alleged that the appellant Peach raised both arms two or three times signalling other West Bromwich fans to advance towards Bolton fans some 20 yards or so ahead of them. Shortly afterwards, the Crown contended that Peach kicked out at a Bolton fan and then picked up a missile and hurled it. It allegedly struck one of the Bolton fans on the back of the leg causing him to limp. The appellant Clare ran towards the Bolton fans and kicked out at one of them as he retreated. When the Bolton fans turned round and squared up, Clare allegedly waved the West Bromwich fans forward sending their Bolton opponents once again into retreat. Blades, who pleaded guilty, punched an innocent bystander who was with his girlfriend. When the incident was over, Peach again raised his hands in the air.
Essentially the evidence upon which the Crown relied was the video recording which was available to be played to the jury. However, because the incident was brief and because there were many supporters and other members of the public milling about and creating a confused scene, what was actually being done and who was doing it could only be discerned by close study.
Police Constable Fitzpatrick had studied the film closely and analytically. He it was who, together with a colleague, had filmed supporters arriving at the football ground before the match, filmed them whilst they were in the stadium and filmed them as they left. Those colour films were of good quality. The video recordings made in the street were filmed in black and white. Police Constable Fitzpatrick had viewed the recording of the incident about 40 times. He had been able to examine it in slow motion, frame by frame, rewinding and playing as frequently as he needed. By studying the film in this way, he was able to follow the movements of individuals and see what actions they took. By comparing the individuals performing violent acts with the colour pictures taken before and at the match, he claimed to be able to identify not only the violent acts in the street but who was committing them.
Accordingly, the Crown sought to adduce the evidence of PC Fitzpatrick in order to elucidate for the benefit of the jury what could be seen on the video recording.
The defence objected to PC Fitzpatrick giving such evidence. The trial judge ruled in favour of the prosecution and PC Fitzpatrick was allowed, as the video recording was played to the jury, to indicate where acts of violence were taking place. He also gave evidence that, having studied the colour film he himself took before and at the match as well as still colour photographs taken at that time by his colleague, he was able to identify those committing the violent acts as persons, including the appellants, who were clearly shown on the colour film and still photographs. There was no dispute that the appellants were shown on the colour film and photographs. Indeed, Peach identified himself on one of the photographs during an interview with the police.
Neither of the appellants gave evidence. The case for each was that the identifications of them as participants in the violent incident were mistaken. They relied upon the brevity of the incident, the number of young men in similar dress and the quality of the film. As to the latter factor, there is no doubt that the film was less clear than the video recording made earlier in colour.
The first ground of appeal advanced by Mr Green, who appeared before us on behalf of both appellants, was that the trial judge should not have allowed the video of the incident to be played to the jury at all. It was submitted that the quality of the film and the brevity of the incident were such that the jury could not properly be asked to form safe conclusions adverse to the appellants by reference only to the film. There was no eyewitness. We have seen the video recording and we agree with the trial judge, the single judge and indeed the constitution of this Court which granted leave that there is no merit in this first submission. Despite the criticisms made of it, the video recording was in our view sufficiently clear to make it fit for the jury's consideration.
The main ground of appeal, however, and that which persuaded the full Court to grant leave relates to Police Constable Fitzpatrick's evidence. Mr Green argued that if the jury were to be shown the film, it should have been shown to them without assistance from Police Constable Fitzpatrick as to the identity of those involved. Police Constable Fitzpatrick did not know the appellants before the day in question. He could not be regarded as an expert witness. He was in no better position than the jury to decide whether those committing violent acts on...
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Subject Index
.... . 124R v Patel (Trupti), Reading Crown Court, 11 June2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93–94R vPeach [1995] 2Cr App R333 . . . . . . . . . . . . 292R vPektas [1989] VR239 . . . . . . . . . . . . . . . . . . .251R vPengelly [1992] 1NZLR 545, NZCA . .200–201R ......
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Table of Cases
.... . . . . . .78R v Church of Scientology (No. 3) (1984) 47OR (2d) 90, HCJ . . . . . . . . . . . . . . . . . . . . . . . . 55R v Clare [1995] 2 Cr App R 333. . . . . . . . . . . . 230R v Clark (Nigel Paul) [2006] EWCACrim 231 . . . . . . . . . . . . . . . 226–227, 250, 253R v Clark (Sally) [......
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Authenticating ‘Things’ in English Law: Principles for Adducing Tangible Evidence in Common Law Jury Trials
...Act 2003, s. 129(1). See p. 297.151 RvCoulston, unreported, 13 February 1984.152 RvMaqsud Ali [1966] 1 QB 688 at 702.153 RvPeach [1995] 2 Cr App R 333 (ad hoc expert); RvClark [1995] 2 Cr App R 425;RvMason [2002] EWCACrim 385; RvGardner [2004] EWCA Crim 1639 at [43]–[47].154 [1972] 1 WLR 65......
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Table of Cases
...vChenia [2003] 2Cr App R6 . . . . . . . . . . . . . . .54R vChittick (2004) 24CR (6th) 228. . . . . . . . . . 273R v Clare and Peach [1995] 2 Cr App R 333; [1995]Crim LR947, CA . . . . . . . . . . . . . . . . . . . . 53–54R vClarke [1995] 2Cr App R425 . . . . . . . . . . . . . 92R vClutterh......