No: 2007/01055/B4 
Neutral Citation Number: [2007] EWCA Crim 3035
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date:Thursday, 22nd November 2007
 
B E F O R E:
 
LORD JUSTICE KEENE 
MR JUSTICE OPENSHAW
MR JUSTICE IRWIN 

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R E G I N A 

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WILLIAM STEWART LYNCH
 
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Mr R Pawson appeared on behalf of the Appellant 
Miss J Brennan appeared on behalf of the Crown 
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Judgment

1.	LORD JUSTICE KEENE:  This appeal raises a point about hearsay evidence under the Criminal Justice Act 2003.  It arises out of events in Aldershot on 1st July 2005, when there were two separate but linked incidents of violent disorder starting at about 10.30pm.  It began when a man in his forties, Patrick Desmond, went to the top of a street called Redan Road.  He did so in order to speak to the appellant about alleged bullying by the latter of Mr Desmond's son, Kieron, and Kieron's friend, Aiesha Cartwright.  That location, the top of Redan Road, known as the Rec, was a known gathering place for youngsters and there was on this occasion a large group of youths present.  Mr Desmond took the appellant to one side to speak to him.
2.	However, putting it very shortly, two other youths then arrived and an attack on Mr Desmond developed.  He was punched to the ground, and then kicked and punched by a number of those present.  He managed in due course to get up and eventually he made off down the hill.  But some of the youths caught up with him near some cemetery gates, and he was attacked again.  One person actually used a hammer on him.  He went to the ground once again and he was ultimately rendered unconscious.
3.	These unpleasant events eventually led to 15 youths facing charges at Winchester Crown Court, before His Honour Judge Boney QC.  In all, 12 of the defendants either pleaded guilty or were convicted offences of violent disorder or unlawful wounding, or both.  The appellant was one of those convicted of violent disorder, that being on 2nd February 2007, this trial having lasted a considerable time.  He was acquitted of section 18 wounding, and the jury failed to reach a verdict on the alternative offence under section 20.
4.	He now appeals against conviction by leave of the single judge, but on one ground only relating to the admission of certain evidence.
5.	The appellant did not give evidence at trial but he had been interviewed on 3rd July 2005, only two days after these events.  In that interview he confirmed that he had been present, both at the top of the hill and at the bottom, and that Mr Desmond had spoken to him at the top.  But he denied getting involved in the attacks.  Hence the issue at trial in respect of him was whether he had participated either by words or by conduct.
6.	One of those who gave evidence for the Crown was Aiesha Cartwright.  She had taken part in an identification procedure on 6th October 2005, about one year before the trial began.  At that identification parade four witnesses, including Miss Cartwright, had picked out the appellant and they were then asked the next question on the form used by the Hampshire Constabulary.  The question was: "What exactly did you see this person do?"  Her reply was recorded as: "When another boy knocked Patrick [i.e. Mr Desmond] to the ground Billy [i.e. the appellant] was swearing at him."
7.	When she gave evidence in chief at trial, Miss Cartwright was asked by counsel for the prosecution about the identification parade and she said that she had told the police which young men she recognised and what she remembered them doing.  She was not cross‑examined about what she had told the police the appellant had done, but she was cross‑examined about the events themselves.  The transcript of that cross‑examination contains the following passage:
"Q. And I also suggest, Aiesha, that as Pat Desmond walked back up to right by the entrance to the rec and Billy is talking to his mates, Billy swore at Pat Desmond and said words to the effect of 'I haven't fucking done anything'.  Do you remember that?
A.  No, I don't remember.
Q.  And that he also swore at Kieron Desmond, saying, 'What have you fucking told them?'  He was protesting his innocence.  Do you remember that?
A.  No."
8.	Her evidence at trial was given on 27th and 28th November 2006.  On 4th January 2007 the judge gave a ruling, as the result of an application the previous day, on the admissibility of what Miss Cartwright had said at the identification parade.  The admission of that evidence was objected to by the defence for the appellant, on the basis that what she had said was hearsay and consequently was inadmissible at law.  The judge, however, ruled that it was admissible and it is that ruling which forms the sole basis of this appeal.
9.	The judge in his ruling noted that it was accepted by the defence that the Code of Practice issued under section 66 and section 67 of the Police and Criminal Evidence Act 1984 ("PACE") had been observed at the identification parade.  He went on to rule that the evidence was admissible on three alternative bases.  The first was that it fell within the authority of R v McCay [1990] 1 WLR 645; secondly, that there was statutory authority for its admission, since the identification parade had been conducted under sections 66 and 67 of PACE and so section 114(1)(a) of the Criminal Justice Act 2003 applied; and thirdly, that it was in the interests of justice for it to be admitted, and so was admissible under section 114(1)(d) and section 126 of the 2003 Act.
10.	The judge went on to add (and we do emphasise this) that if counsel for the appellant wanted to put further matters to Miss Cartwright as a result of his ruling, he was willing to allow her to be recalled for further cross‑examination.
11.	It is convenient to set out at this stage the relevant provisions of the 2003 Act.  Section 114(1) provides:
"(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if— 
 (a) any provision of this Chapter or any other statutory provision makes it admissible,
 (b) any rule of law preserved by section 118 makes it admissible, 
 (c) all parties to the proceedings agree to it being admissible, or 
 (d) the court is satisfied that it is in the interests of justice for it to be admissible."
12.	Section 114(2) sets out a number of matters which the court must have regard to in deciding whether a statement should be admitted under subsection (1)(d).
13.	Section 118, referred to in section 114, states at subsection (1) that "the following rules of law are preserved."  Rule 4 reads as follows:
"Any rule of law under which in criminal proceedings a statement is admissible as evidence of any matter stated if—
 (a) ...  
 (b) the statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement, ..."
That rule appears under the textual heading in the Act of "Res gestae".
14.	The case of McCay was one where a witness had previously identified the appellant from behind a screen at an identity parade, saying, "It is number 8."  At trial he could not recall the number of the person he had identified, but the judge allowed a police inspector, who had been present at the parade, to give evidence as to what the witness had said.  This court, presided over by Russell LJ, upheld that ruling.  The reasoning can be seen from the headnote in the Weekly Law Reports report:
"Held, dismissing the appeal, that although the words spoken by the licensee at the identification parade were said in the absence of the appellant, they accompanied the relevant act of identification of the person suspected of having committed the assault and those words were contemporary with, and necessary to explain, the act of identification; that, accordingly, they were so much part of the res gestae that the inspector's evidence was admissible either as being original evidence or as an exception to the hearsay rule; and that further, the identification parade having been conducted in accordance with the code of practice issued under sections 66 and 67 of the Police and Criminal Evidence Act 1984, there was statutory authority for the words used by the licensee in identifying the suspect to be admitted in evidence ..."
15.	So there were really two bases there in that case for the admission of that evidence: first, because it was necessary to explain the act of identification and, secondly, because it had statutory authority under PACE.
16.	On behalf of the appellant, Mr Pawson submits that the present case goes well beyond McCay, which was merely dealing with the identification of the suspect, not with what he had done at the scene of the alleged offence.  To allow in the answer by Miss Cartwright would, it is said, enable any detailed statement made by a witness immediately after an identity parade to go in.  It is, says Mr Pawson, no more admissible than if she had made a free‑standing additional statement at that time.  As to sections 66 and 67 of PACE, it is submitted that those were not intended to make such hearsay evidence admissible and nor do they do so.
17.	Finally, it is submitted that the judge erred in so far as he relied on section 114(1)(d), the interests of justice limb.  Miss Cartwright had not referred in her earlier videoed statement to the appellant swearing at Patrick Desmond.  If the Crown wished to use this document to refresh Miss Cartwright's memory, the proper process would have been to apply under section 139.  That, says and indeed acknowledges Mr Pawson, would have been the proper method and he accepts that that could have been used to get this evidence in before the jury.  But he stresses that this was important evidence.  When the judge came to rule on whether there was a case to answer, he had concluded that the only real difference between one of the defendants, called Leech, and this appellant was that in the case of the latter there was this statement made at the identification parade by Miss Cartwright.  The other co‑defendant, Leech, was found to have no case to answer.
18.	Mr Pawson accepts that the judge showed that he was willing to have Miss Cartwright recalled after his ruling, and accepts that he could then, had he availed himself of that opportunity, put any questions which he wished to her about what had happened at the identification parade or indeed about what she had observed at the scene.  But he frankly concedes that for tactical reasons he chose not to seek her recall.  He says he was concerned that to do so at that stage of the trial might merely have emphasised the importance of this piece of evidence.  Equally, he accepts that he could have sought a ruling about the admissibility of this evidence at the time when Miss Cartwright first gave evidence, because it had been clearly flagged up, he acknowledges, that this was the course of action which the Crown ultimately proposed to take.  Again for tactical reasons, he thought it preferable not to do so.  Nonetheless, Mr Pawson adheres to his submission that it was not in the interests of justice for this piece of evidence to go before the jury.
19.	For the Crown, Miss Brennan submits that the evidence certainly went in properly under section 114(1)(d).  As for the authorisation under PACE, she accepts that the Code does not expressly authorise the admission of an answer to this sort of question in evidence.  The form used by this constabulary is one which it regularly uses, but Miss Brennan acknowledges that this particular question and answer does not have any origin in the Code of Practice itself.  She also emphasises the practical value of such an answer, where one has a number of people involved in an incident and where one needs, she says, to know more than merely whether a person was present at the scene.  This no doubt is why the question and answer forms part of this standard form used by this constabulary at identification parades.
20.	We take, first, the argument that paragraph (a) of section 114(1) of the 2003 Act authorises the admission of this evidence because it is made admissible by statutory authority, namely the Police and Criminal Evidence Act, sections 66 and 67.
21.	Despite what was said in McCay, we do not find this persuasive.  With all due respect to the court there, sections 66 and 67 of PACE give the Secretary of State the power to issue Codes of Practice, and section 67(1) renders the Code itself admissible in evidence.  Breaches of the Code will also of course be relevant to the admissibility of evidence.  But that is a very long way from regarding those statutory provisions about the Codes as rendering admissible something which would otherwise be hearsay, merely because the statement is made during processes which were properly conducted in accordance with the relevant Code.  Professor Birch in her commentary on McCay at [1990] Crim LR 340 says perfectly accurately that the codes do not alter the rules on the admissibility of evidence.
22.	It seems to us that what section 114(1)(a) of the 2003 Act was intended to cover are such instances as statements and depositions admitted at the committal stage and expert reports which, for example, have statutory authority under the Criminal Justice Act 1988, section 30.  It does not authorise the admission of anything said by a witness at an identification parade merely because the parade procedures are conducted in accordance with Code D.
23.	What McCay is authority for is the proposition that some statements made at the time of the identification may be so bound up with the identification as to form part of it.  This does reflect the long‑established exception to the hearsay rule, which forms part of the group of exceptions arising under the res gestae principle.  A statement accompanying a relevant act and necessary to explain that act will be admissible on that basis, and this was how Russell LJ principally explained this court's decision in McCay.  It is a principle which goes back at least as far as the early 19th century: see Walter v Lewis (1836) 7 C & P 344.  In the present case the relevant act was the identification of the appellant.  This exception to the hearsay rule is now preserved by section 118(1), Rule 4(b) of the 2003 Act.
24.	We see some, but only some, force in the Crown's submission that where one has an alleged offence involving a number of people, the sort of question and answer which took place in this case may be necessary to explain what the identification meant.  A witness does not merely identify somebody, as it were, in a vacuum.  He or she identifies a person as being present, as someone relevant to the alleged offence, and perhaps as having played some role.  It may merely be presence at the scene, but it may go beyond that and so it does not take place in a complete vacuum.
25.	Nonetheless, the facts of the present case do go substantially beyond what was involved in McCay, where the statement in question clearly was necessary simply to indicate who it was that the witness was identifying.  It is very difficult to see where, if a statement such as this were admissible as part of the res gestae of identification, the line could then be drawn.  The concept of words spoken being part and parcel of an act does imply a very limited scope for this exception to the hearsay rule: see the House of Lords' decision in R v Christie [1914] AC 545.
26.	However, all of this is somewhat academic, because this court is quite satisfied that the judge was entitled to conclude, as he did, that this statement was admissible "in the interests of justice" under paragraph (d) of section 114(1).
27.	First, it was a statement which was made by a person who was called to give evidence.  It may have been made out of court, but the witness could have been asked about what she had said at the identification parade.  As we have noted, the judge expressly said that he was willing for her to be recalled if the defence wanted.  That is a very important consideration.  We understand the tactical reasons which persuaded Mr Pawson to adopt the course which he did, and we do not seek to criticise that judgment which he made.  Nonetheless, the opportunity was made available to the defence and the defence chose not to avail themselves of it.
28.	In addition, this was a statement made in a formal setting, that of an identification parade, and recorded in a way which one can regard as reasonably reliable.  That also is an important consideration.  The type of concerns which historically have underlain the hearsay rule, particularly about the inaccuracy or unreliability of reporting what someone else has said, does not arise here.  In statutory terms, this evidence met section 114(2)(f).  We do not accept that Miss Cartwright's answers in cross‑examination conflicted with this out‑of‑court statement.  In essence all that she said was that she could not remember at this stage of the trial.
29.	Thirdly, it is accepted by Mr Pawson that this evidence could have gone in anyway as part of a memory‑refreshing exercise under section 139.
30.	Fourthly, it did meet the terms of section 114(2)(a), in that it was valuable for understanding Miss Cartwright's identification of the appellant.  It may not have qualified under that limb of the res gestae rule.  But nonetheless it is not irrelevant that it helped to explain what her identification amounted to.
31.	Finally, it was not the only evidence implicating the appellant in encouraging the violent disorder.  It may have been important, but there was also evidence from Thomas Harrison identifying the appellant as one of those who pointed out Patrick Desmond to two youths, Martin and Hood, who had come up shouting, and one of whom had a belt wrapped round his hand.  Martin and Hood then attacked Mr Desmond.  A girl called Charlie Cook, the daughter of Mr Desmond, gave evidence that, when the appellant and her father walked back to the main group, the appellant was upset and aggravated.  He looked angry and was shouting and swearing all sorts of things at her father, and his friends were trying to calm him down.  Miss Cartwright in her oral evidence said that when Mr Desmond ran off down the hill, they all chased him and she identified the appellant as being amongst the chasers, though she conceded that she could have been wrong about this.  But of course none of this was dealt with by the appellant, since he did not give evidence.  So while the identification statement was of some importance, it did not stand alone.  
32.	We are consequently quite satisfied that the judge was entitled to rule Miss Cartwright's statement as admissible, on the basis that it was in the interests of justice.  Indeed, it seems to this court that this is the sort of out‑of‑court statement which section 114(1)(d) was intended to cover.  The statement made at the identification process was made very much closer in time to the date of the incident than was her evidence at trial, over a year before the trial even began.  As has been said many times in this court, a trial is not, or should not be, primarily a test of memory or recollection, and when one has a reliable record of a statement made by a witness at a time much closer to the event and officially recorded, it will often be in the interests of justice for it to go before the jury.
33.	We conclude that this evidence was properly put before the jury and, furthermore, we are satisfied as to the safety of this conviction.
34.	It follows that this appeal is dismissed. 
35.	MR PAWSON:  Thank you, my Lord.
36.	LORD JUSTICE KEENE:  Thank you both very much indeed for your assistance.
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