Davies, R v [2011] EWCA Crim 871

[2011] EWCA Crim 871

Case No 201002571 C5

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CRIMINAL DIVISION)

Venue ON APPEAL FROM THE CROWN COURT AT CARDIFF

His honour JUDGE NICHOLAS COOKE QC,

Venue the recorder of cardiff

T20097519

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 07/04/2011

Before

LORD JUSTICE AIKENS

MR JUSTICE KENNETH PARKER

SIR GEOFFREY GRIGSON

Between

RRespondent

AARON LEE DAVIESAppellant

Mr Patrick Harrington QC for Appellant

Mr David Aubrey QC (who did not appear below) and Mr Leighton Hughes for Crown

Hearing Hearing dates : 11 th March 2011

Judgment

[1]This is our reserved judgment concerning an appeal against conviction by Aaron lee Davies, who is now aged 25. The appeal is made with the leave of the single judge.

[2]On 12 April 2010, after a 3 week trial before the Recorder of Cardiff, HHJ Nicholas Cooke QC, and a jury in the Crown Court at Cardiff, Aaron Lee Davies was convicted of the manslaughter of Gareth Davies, aged 26. On 6 May 2010 the Recorder of Cardiff sentenced the appellant to 3 years imprisonment less 24 days spent in custody on remand.

[3]We heard the oral argument of Mr Patrick Harrington QC on behalf of the appellant and Mr David Aubrey QC on behalf of the Crown (who did not appear in the court below) on Friday 11 March 2011. Having considered the matter most anxiously we have concluded that the appeal must be allowed and the conviction quashed, for the reasons we set out below.

The Facts

[4]The case arises out of events shortly after 1am on Sunday, 28 October 2007, outside a pub called “The John Fielding”, which is also known as “Wetherspoons” and which is in the centre of Cwmbran. In the evening of 27 October 2007 Gareth Davies and a number of friends celebrated Halloween by visiting bars and pubs in Cwmbran. They were dressed in fancy dress outfits. Gareth Davies was wearing a white “Ghostbusters” suit. He carried a backpack and was carrying a wand or sprayer in the manner of the ghost-buster characters in the film “Ghostbusters”. Also in this group was Matthew Ballam. He wore a white “Buzz Lightyear” suit. It had a green band on the front of the top part of the suit in the manner of the character of “Toy Story”. Another member of the group, Scott Evans, wore a Hannibal Lecter costume which consisted of a pair of orange overalls. There were two other young men in the group. Sam Hoskings was wearing a lumberjack shirt and mask. Daniel Davies wore a “Sylvester the cat” outfit. With them were several young women also dressed in fancy dress outfits.

[5]The appellant had been at the John Fielding pub throughout the evening of 27 October. He was in the company of a number of young women and also a young man called Dariush Naserayan.

[6]The appellant is of medium height, and has a muscled physique. He has ginger hair. On 27/28 October he wore his hair very short and it was brushed slightly forward. On that evening he was wearing jeans and a brown, short sleeved t-shirt with a distinctive tree profile motif in black across the front of it. At the left breast of the t-shirt there were a number of small badges, but they were not themselves conspicuous. There was an inner white lining to the t-shirt which meant that there was an external border of white at the neckline and at the edges of the short sleeves of the shirt.

[7]Dariush Naserayan is distinguishable by his olive coloured skin, (his father being Iranian) and a distinctive mis-shapen nose. On 27/28 October 2007 Mr Naserayan was wearing jeans and a long sleeved white top.

[8]The evidence at the trial was that the group in fancy dress outfits were having a good time at the John Fielding. Some of them were undoubtedly drunk. Evidence from one of the doormen was that the members of this group were, however, very well behaved and caused no problems.

[9]The John Fielding pub has main doors at the front of the premises. It also has side doors. It is the practice of the pub to close the main front doors late each evening before closing time. Thereafter, the side doors are used for entering and leaving the premises. Immediately outside the side doors is a small courtyard area. On the left of the doors (if one faces out with the premises behind) there is a set of steps which leads up to a “smoking area” where there are tables and chairs. Straight ahead of the side doors is another set of steps which leads towards a car park. The premises have CCTV. This covers the inside of the pub, the courtyard outside and, from separate cameras, parts of the car park and its curtilage in the raised areas beyond the exit steps. CCTV recorded some, but by no means all of the events just outside the pub. They did not record what occurred in the external car park. None of the crucial, later, events which we are about to describe were recorded on any CCTV cameras.

[10]Closing time for the John Fielding on 27/28 October was 1am. It is agreed that the sequence of events leading to Gareth Davies’ death started after 1 am, in the area at the top of the steps. One of the fancy dress outfit group, Sam Hoskings, elbowed or slapped the appellant in the back of the neck or head. It was probably not a hard blow, but, in the circumstances, it might have appeared to be provocative and, as events turned out, it was certainly foolish. The appellant was surprised by the blow. His reaction, as recorded on the CCTV images, was to turn round and confront Sam Hoskings. After a tussle between the two of them others intervened and parted them. The appellant and Sam Hoskings were then escorted from the premises by the licence holder, Mr Andrew Kempson.

[11]The subsequent events were very much in dispute at the trial. The case for the prosecution was that the appellant, who, it claimed, was already in an aggressive mood that evening, then behaved aggressively towards others in the fancy dress group apart from Sam Hoskings. The prosecution alleged that the appellant aimed a blow towards at least one person, aimed a head butt at another and ended up grappling on the ground with Daniel Davies, who was dressed as “Sylvester the cat”. The prosecution alleged that the appellant then stood up and made his way towards Gareth Davies.

[12]The prosecution case was that the appellant used his right fist to strike Gareth Davies on the left hand side of his face, which caused Gareth Davies to fall over backwards and slightly to the right, hitting his head on the tarmac surface of the car park. It was not in dispute that Gareth Davies lost consciousness immediately but came round quite soon thereafter. He refused to go to hospital and went to the house of Natalie Richards, a witness who had been in the group he was with that evening. Gareth Davies went up to bed, having been sick. Later the same morning Miss Richards tried to wake him but he could not be roused. He was taken to hospital but he never regained consciousness. On 30 October 2007, Gareth Davies died. The cause of death was severe brain damage resulting from fractures to his skull. At the trial the pathologist’s evidence suggested that the fatal impact leading to brain damage was to the right hand side of the back of Mr Davies’ head. The pathologist stated that, at the post mortem, he found injury to the left side of the face consisting of deep bruising in the tissues which was consistent with a punch.

The crucial identification evidence at the trial

[13]The principal issue at the trial was that of identification. There were three witnesses whose identification evidence was of crucial importance. Two were taxi drivers called Janet Edwards and Mark Brennan. They were in their taxis outside the pub and witnessed the assault on Gareth Davies. They subsequently identified the appellant at “Promat” identification procedures which took place in early November 2007. We will have to return to that procedure.

[14]The third identification witness was Andrew Kempson. He described seeing a man fall to the ground following an assault by a man who fitted the description of Dariush Naserayan. It was the prosecution’s case that what Mr Kempson witnessed was a separate, earlier assault on Matthew Ballam, another person in the fancy dress outfit group. Andrew Kempson’s evidence at the trial is of key importance to this appeal.

Events leading to the trial: the decision not to prosecute the appellant in December 2007

[15]The appellant was arrested and interviewed on 29 October 2007. He was re-arrested on suspicion of manslaughter following the death of Gareth Davies. He was interviewed at length and in the course of the interview he placed himself at some distance from the incident involving the deceased. He also said that he had been attacked during the disturbances and had suffered injuries to his ribs and head.

[16]The case was considered by the Crown Prosecution service. The advice of counsel was sought on whether the appellant should be prosecuted for manslaughter. There was a conference with counsel and he produced a short written advice the day after the conference. The advice confirmed his view that a successful prosecution could not be brought. The Senior Crown Prosecutor accepted this advice and endorsed it in a summary of four lines only. The appellant’s solicitors were informed of this in a formal CPS letter dated 18 December 2007. The principal and bizarre reason for the decision not to prosecute was that a defence of self-defence could not be negated. However, that defence had never been raised by the appellant in interview and was never an issue.

Events leading to the trial: the Inquest and the aftermath

[17]Because the CPS had decided that there would be no prosecution of the appellant, the papers were handed to HM Coroner for Cardiff and the Vale of Glamorgan, Miss Mary Hassell. On 23 May 2008, obviously as a result of the Coroner’s examination of the papers, including counsel’s advice, the Coroner’s officer requested a copy of the form MG3 which is the charging decision document in which the Senior Crown Prosecutor’s decision was recorded. The CPS refused to provide the Coroner with the form, but instead wrote to her and, in Judge Cooke’s words “…[rewrote] the original counsel’s advice in more intelligible terms demoting the clearly misconceived… “critical” self defence point to a secondary consideration appearing after the word “furthermore” and describing all of it as having been a consideration by the “reviewing lawyer”: see page 6G of the judge’s ruling at the start of the trial, hereafter “the abuse ruling”.

[18]Despite what must have been an obvious inconsistency between the terms of counsel’s advice to the CPS and the letter sent by the CPS to the Coroner, the Coroner decided that the main hearing of the Inquest into the death of Gareth Davies, which was fixed for 28 and 29 May 2008, should go ahead. But before the substantive hearing of the Inquest of Gareth Davies resumed, the Coroner saw in private two police officers who were involved in the investigation of Gareth Davies’ death. She must have been concerned at the evidence and the decision not to prosecute. The judge said (at 7C-D of his abuse ruling): “What is of some significance is that, to put it at its lowest, Her Majesty’s Coroner certainly indicated [to the two officers] that there was a very real possibility of an unlawful killing verdict and that she felt, as a preliminary paper-based view, that this case was one better suited to determination by a criminal court than by herself. Here alarm bells were sounding, an opportunity to put things right may well have been missed”.

[19]The two police officers reported the Coroner’s statements to their superiors but no one seems to have sought legal advice or contacted the CPS about the matter. The only action of the police was to contact the press office so it could prepare a press-release for use in the event that a verdict of unlawful killing was returned.

[20]The Inquest hearing went ahead. The appellant gave evidence. Having received the usual warning against self-incrimination he refused to answer questions that might incriminate him. It appears that two of the identification witnesses, Miss Janet Edwards and Mr Mark Brennan, were invited by the Coroner to make a “dock identification” of the appellant and did so.

[21]Mr Kempson, the manager of the pub, gave evidence after Miss Edwards and Mr Brennan. He had been present in court when they had given evidence. Mr Kempson had made a very long and detailed statement to the police on 31 October 2007, that is three days after the incident. His statement to the police was that a young man who had on a “white boiler suit” was hit by another young man with a tanned complexion, short straight black hair and distinctive flat nose; a perfect description of Mr Naserayan. Mr Kempson’s statement was that the blow had been delivered with the left hand and although he did not see the punch connect, he did see the person it was aimed at falling backwards in a “rigid” manner and hitting his head hard on the ground. His statement also said that the person in the white boiler suit had been holding a pint glass with a dark liquid in it, which Mr Kempson thought was blackcurrant.

[22]Mr Kempson had also attended the identification procedure also and he picked out Mr Naserayan’s image as being that of the person who delivered the blow he had seen. There is no criticism of that ID procedure.

[23]At the Inquest Mr Kempson was not given the opportunity, before giving evidence, to refresh his memory of his long statement given some 6 months previously. As a result, Mr Kempson had some difficulty in recalling details and he gave evidence that was significantly inconsistent with his statement. In particular he referred to the person who had been struck by Mr Naserayan as a person wearing the “Buzz Lightyear” outfit. Despite the difference between the statement Mr Kempson had previously given and the oral evidence to the Coroner, she did not give him any opportunity to refresh his memory nor did she point out that his evidence was, in important respects, different from his previous statement.

[24]The Coroner returned a finding of “unlawful killing” of Mr Davies. As is normal, the finding did not specify the person against whom the finding was made. The Coroner sent the papers back to the CPS and Gwent police. There was a review by Gwent Constabulary of the original investigation into the circumstances of the death of Gareth Davies. The review was critical of the original inquiry, although (slightly oddly in view of the letter of 18 December 2007 to the appellant’s solicitors), the police maintained that the inquiry had never actually been closed.

[25]The CPS became involved again on 3 October 2008. In July 2009 the appellant was re-arrested and charged with the manslaughter of Gareth Davies.

The trial: the application to stay the proceedings for abuse of process

[26]At the start of the trial in March 2010, that is 2 ½ years after the incident, there was an application to stay the proceedings for abuse of process. The submission of Mr Harrington QC on behalf of the appellant was that, given the sequence of events, it would be unfair to try the appellant of the offence charged, such that the proceedings should be stayed. Mr Harrington relied on:(a) the unequivocal statement by the CPS that the appellant would not be prosecuted;

(b) the way in which the inquest had been conducted and

[27]The Recorder of Cardiff rejected those submissions. In our view it is important to note some of the specific findings of the judge made in the course of his abuse ruling. First, he reviewed the facts leading to the decision of the CPS in December 2007 not to prosecute. He concluded:(1) the advice of counsel that there should be no prosecution was a “shoddy piece of work” which should have been immediately recognised as “not competent”: page 4F. Another counsel should have been instructed to advise.

(2) The decision taken not to prosecute was “both incomprehensible and indefensible”: page 3G.

(3) That decision was “plainly and seriously wrong”: page 10E.

[28]Secondly, the judge found that the appellant had been given an unequivocal assurance that he was not to be prosecuted. Thirdly, he found that there had been unreasonable delay on the part of the prosecution in reversing its decision not to prosecute. However, fourthly, he found that the decision to re-prosecute was “within the ambit of a reasonable Chief Crown Prosecutor” although it was a decision that was “irregularly taken” because it was, in fact, taken at a lower level, contrary to CPS legal guidance.

[29]Despite these findings, The Recorder of Cardiff concluded overall that it was still possible to have a fair trial and it was fair to have a trial. He rejected the submission that the fact of an Inquest having taken place or “anything about the way the Inquest was conducted or anything related thereto dictates that there cannot be a fair trial now”: page 11F. We point out at this stage that the judge did not address specifically the possible detriment to the appellant at a subsequent trial that might result from the fact that Mr Kempson had not been permitted to refresh his memory of his statement before he gave oral evidence at the Inquest, and that (possibly as a result of this) his evidence had been inconsistent with his written statement made only 3 days after the fatal incident.

[30]The judge recognised that the trial must incorporate strong safeguards to the defendant/appellant in relation to the effect of delay and other potentially adverse consequences of the history of the case. He also said that, in the event of a conviction, a “reasonable observer” would expect recognisable mitigation of sentence to reflect the delay and the fact that this appellant had been prosecuted after an assurance of no prosecution.

The trial: the evidence of the identification witnesses

[31]Janet Edwards described the struggles she saw whilst waiting in her taxi. She saw a person who was stockily built, had fair hair and was wearing a brownish t-Shirt. That person aimed a punch at Sam Hoskings but he ducked and so it missed him. She saw Scott Evans (in the Hannibal Lecter orange boiler suit) being punched in the face by a man with an orange t-shirt on. She believed that Dan Davies (Sylvester the Cat) was “involved” with the person in a brown t-shirt.

[32]Judge Cooke summarised her evidence about who hit Gareth Davies as follows, at page 62C-D of his summing up: “The guy with the orange t-shirt got up and punched Gareth Davies. It was a lad wearing an orange t-shirt. Gareth Davies was innocently standing there. He was in a white Ghostbusters suit, she saw it; it was right in front of her. The punch was with the right hand, she saw the contact. Yes, the contact was to the left side of the cheek near the mouth. The effect was to knock him to the floor. He went straight down and she radioed through seeking police an ambulance. He did nothing to stop himself falling, he just hit the floor”.

[33]The judge recorded that she remained adamant in cross – examination that it was the man in the orange t-shirt who had punched Mr Davies. She had seen this at about 10 feet; in lighting that was good but dim but she had no difficulty in discerning different colours: page 68A of the summing up.

[34]The jury heard the call that Ms Edwards made to Ms George at the taxi radio control, which Ms George relayed to the emergency services. In the course of the call Ms Edwards described the person who delivered the fatal punch as wearing an orange shirt and said he was still there. She also referred to a person in a brown shirt, but the attacker was in an orange shirt.

[35]We note at this point that the judge said in his summing up that although the matter was for them, the jury might think that pale shirts and white shirts can acquire the colour of the street lighting, if, as here, it is sodium lighting, whereas dark coloured shirts cannot. He said that no one had actually said so in evidence but “circling round some of the evidence that had been given” was the notion that a pale white shirt in one of the more orange pools of lights might look orange and that might confuse the situation, but a brown shirt is not going to take on an orange hue under an orange light: page 48B.

[36]Ms Edwards said that she had approached Gareth Davies, who gained consciousness whilst she was there, but she then left the scene and did not speak to the police at the time. We will deal with her evidence about her participation in the identification process below.

[37]Ms Edwards also gave about an incident when the appellant had been a fare in her taxi some 9 to 12 months before October 2007, when she had been encouraged by someone in the back of the taxi to drive over a dog which was eating a kebab on the side of the road and she had told the passenger to get out. The young man had in fact been the appellant, although she said that she could not recall the young man’s face: summing up: page 66H. The appellant hotly disputed that he had urged her to run over the dog.

[38]The second key identification witness, Mark Brennan, said that he saw a man in his early twenties, powerfully built, with long arms, who was wearing a brown t-shirt with white somewhere, attempt to head-butt another young man, who was Daniel Davies (“Sylvester the cat”) but the head-butt missed. He said that he saw a blow that led to someone being knocked to the ground; that boy was dressed in white as a Ghostbuster: page 79D of the summing up. Mr Brennan said that the punch was with the right hand and struck the victim square on the left side of the cheek at the side of the mouth and he heard the impact of the head hitting the ground, which was a really loud crack. He said that the boy with the brown t-shirt and a friend appeared to leave in the direction of McDonalds. He said that he had a full view of the person who had hit the boy who went down.

The identification procedures

[39]The Promat identification procedure uses images on a computer screen showing a full face view and a side face view. There is no view of clothing of the persons whose faces are seen by those taking part. A suspect will, in consultation with his solicitor, choose images from a computer maintained data base of others of a similar appearance to him so that there is a collection of 8 images of people who are similar to the suspect plus his own. Those images are then viewed by witnesses.

[40]The judge set out for the jury the precise words used by the lady who was conducting the Promat process at pages 64H to 65D of the summing up. When Ms Edwards was performing the procedure that lady said:

“Just to make you further aware, you are trying to identify the person who hit the male in the white suit, causing him to fall to the floor; not identifying that they were there at the scene”

. Ms Edwards acknowledged that statement. Ms Edwards demanded to see certain of the images again, more than once. She then said: “I believe in my opinion it is number six”, which was the image of the appellant. The judge’s comment in summing up was that the words were “perhaps not the most certain in how it is expressed, although the intention to identify number six is clear”.

[41]In relation to Mr Brennan’s part in the identification procedure, the judge first set out what was said to Mr Brennan by the person conducting the procedure, which was read from a pre-prepared script. The judge described the procedure as follows:

“…. “You have been asked here today to see if you can,” and then the word has to be inserted because it is not in the script, “identify one of two males who you saw outside the John Fielding public house, Wetherspoons, in Cwmbran during the early hours of Sunday 28th of October 2007. You state that you saw this male arguing with another male whom he tried to head butt. You also state that this male then began to fight with another male who had a ripped t-shirt.”

That is the Sam Hoskin point, that was how he described him. “You further state that you saw this same male throwing punches and that one of these punches connected with another male wearing white clothing, causing him to fall to the ground.” …..”

[42]Mr Brennan looked at all 9 images and then asked to see No 7 again. That was an image of the appellant. Then he said:

“Number 7 is the one. I certainly think I saw him there that night”

. Then Mr Brennan was then asked another question by the person conducting the procedure. This was recorded by

the judge at page 81E of his summing up:

“I further asked the witness whether he was confirming that he had seen male number seven at the John Fielding public house and that this male had thrown a punch which had connected with a male in a white suit”

. The judge rightly described that as a compound question because it was asking whether he saw a man at the pub and whether that man had thrown the punch which connected with the male in a white suit. Mr Brennan replied:

“He punched a male who was dressed in white”

. The judge’s comment was:

“so the answer at least was clear”

The submission of no case to answer at the end of the prosecution case

[43]At the close of the prosecution case, the defence submitted that the case should be withdrawn from the jury. It was argued, correctly, that this was, in essence, an identification case and that, in accordance with the principles set out in the well-known case of Turnbull, the case should be withdrawn from the jury because the identification evidence was insufficiently strong for them to reach a verdict that would be safe. In his ruling the judge considered carefully the evidence of the two taxi drivers, Mark Brennan and Janet Edwards, which constituted the foundation of the prosecution’s identification evidence. He concluded that Mark Brenan’s evidence of identification could properly be described as “poor evidence of identification”: ruling page 3F. He concluded that if Mr Brennan’s evidence were unsupported, that evidence “might not be enough to be left to a jury”: ruling page 4A.

[44]The judge then considered the evidence of Janet Edwards, the other taxi driver. He said that, having carefully considered her evidence, he concluded that a “reasonable jury properly directed could come to the conclusion that they are sure of Janet Edwards’ facial identification of the defendant and therefore [would be] able to conclude that it provides some support for Mark Brennan’s identification”: ruling page 4E. That is hardly a ringing endorsement of the strength of her evidence. The judge accepted that there were flaws in her evidence, in particular her evidence that the assailant had been wearing an orange shirt, but the jury, properly directed, could “glean some support” from her identification via the Promat system. The judge also accepted that there was other support for the identification witnesses, in particular, the “pathology-related” evidence and also that of the eye witness Natalie Richards concerning the proximity of the appellant to the deceased when the latter was on the ground.

The judge therefore rejected the submission of no case to answer.

The evidence for the defence

[46]The trial then proceeded and the appellant gave evidence. He said that Sam Hosking (in the lumberjack shirt and mask) had hit him across the back of the head, which he had not expected and his head jolted forward. He said he thought he was being attacked so he grabbed Sam, but they were split up and he was escorted up the steps. He said that at the top of the steps he was approached by Sam Hoskings, Scott Evans (Hannibal Lecter outfit), Daniel Davies (“Sylvester the Cat” outfit) and Matthew Ballam (“Buzz Lightyear” outfit). He said that he was attacked, dragged to the ground and “given a shoeing” on the top of his head and in the ribs. His assailants were pulled off by Darius Naserayan and Rowan Nodwell. Darius had hold of a boy in orange. At some stage Darius did not have his top on. They walked up past two shops. They saw Gareth Davies on the ground in the middle of the car park but he did not go near him. He said that Natalie Richards, who had given evidence that the appellant was immediately by Gareth Davies when he was on the ground, was quite wrong in her recollection.

[47]Andrew Kempson, the licence holder of the pub, gave evidence for the defence. At quite an early stage in his evidence in chief, he said that the passage of time made it more difficult to remember details and he was permitted to refresh his memory by looking at his statement of 31 October 2007. His evidence was that he separated two people fighting, one of whom was the “ginger-headed boy” who was quite aggressive “in a shocked manner”. He said that he viewed quite a lot of the fighting from a distance of some 20 to 30 yards. The critical part of his evidence is set out by

the judge in his summing up as follows:

“ … The man in the white boiler suit, slightly taller than me, five foot 11 inches height, to six feet, was a young boy in his early twenties. He noticed the boy with the tanned face and the distinctive nose. He started to walk towards the boy in the white boiler suit. The boy in the suit edged back, about two yards apart, so about six feet. The man with the distinctive nose pulled the arm back as though to punch, arm came forward, the boy in the white suit fell back and struck his head. He cringed, it was large or loud noise. The man who fell was holding a glass and it shattered as it hit the ground, then things went quiet. The boy with the nose turned and walked away. Others in fancy dress ran to the boy on the floor. The boy in the orange suit ran towards him and fell on top of him on the floor. “I was going to call the police or ambulance but I was told they had already been called.”

The man with the nose had brought his hand back and then aimed what looked like a roundhouse punch, and you have got a point about the sort of contamination or phrases or something like that in relation to that, that is how it was described, roundhouse punch, that was a phrase that had been used by someone earlier. He didn’t see it connect. The man fell in a rigid way. He had his right arm out indicating as if to back off. He fell and caught his head on the floor. … ”

[48]Mr Kempson’s said that after the punch he did not see the boy get up but later saw him standing up and talking to police with a group around him. He saw the ginger boy and the boy with the distinctive nose walk past him in the direction of Dominoes pizza shop and McDonalds. He then went inside.

[49]Mr Kempson’s evidence in chief effectively conformed with his statement of 31 October 2007.

[50]In cross-examination Mr Kempson was questioned at first about the contents of his statement. Effectively he stuck to it. Mr Spencer QC for the prosecution accepted that in his statement Mr Kempson had said that a lad in a white boiler suit had been hit with a left fist and had then fallen to the ground. But Mr Spencer suggested to Mr Kempson that he had been mistaken in so stating and that “the position became clear when you were answering questions at the Inquest”. Mr Spencer then questioned Mr Kempson closely by reference to a transcript of his evidence to the Inquest. It was put to him that this was quite inconsistent with his statement of 31 October 2007 and the evidence in chief he had just given, particularly as at the Inquest he had said that the person Darius Naserayan had struck with his left hand had been dressed in a “Buzz Lightyear” suit.

[51]In cross-examination Mr Kempson confirmed that he had not been given the chance to read his statement before he gave evidence at the Inquest. He also said that he found that process intimidating and that he had felt uncomfortable. Mr Kempson twice rejected the suggestion that his evidence to the Coroner was accurate and that in his statement (and evidence in chief) was not saying that what he said in his statement, which was made much nearer the time, was likely to be what happened because it was then much fresher in his mind.

[52]The judge reminded the jury of the parts of Mr Kempson’s statement of 31 October 2007 that had been introduced in his evidence. Effectively, the judge said that the evidence given by Mr Kempson in the witness box and that set out in his statement were the same. But, the “complicating factor” as the judge put it at page 112G of his summing up, was that Mr Kempson had given a different account at the Inquest: in particular that the man who was knocked down was wearing a “Buzz Lightyear” outfit. The judge summed up the effect of Mr Kempson’s evidence at the Inquest (page 115F), as put to him in cross-examination, as being “Darius hitting someone in the Buzz Lightyear outfit and not someone in the Ghostbusters outfit”.

[53]There is no direct criticism of the terms of the judge’s summing-up to the jury. The judge warned the jury in firm terms that if they thought that Mr Kempson might be right in saying that Mr Davies fell other than as a result of a punch by the appellant, then they could not be sure of guilt: page 106D.

The grounds of appeal and the submissions on the appeal

[54]The single

judge said, when granting leave:

“I think that the strongest way the appeal can be put is that the verdict is unsafe because of the delay and the weakness of the identification evidence”

. Mr Patrick Harrington QC, who appears for the appellant, confirms that he will confine his submissions to that ground, although he also argues that there are facts surrounding the Inquest which are relevant to the principal argument that there were flaws in the identification evidence that make this conviction unsafe.

[55]Mr Harrington points out that the judge stated, correctly in his submission, that the case against the appellant depended wholly on the correctness of two identifications of him, by Janet Edwards and Mark Brennan, which the appellant said were wrong: see summing up page 7B. It was common ground that this was a “fleeting glimpse” case, viz. the two identification witnesses only got a fleeting glimpse of the person who hit Gareth Davies and did so at night under artificial lights.

[56]Mr Harrington makes the following submissions about the identification evidence of Miss Edwards and Mr Brennan. witnesses. First, he says that Miss Edwards had seen the appellant before when the appellant was in her taxi at the time of the dog incident. So this was more akin to a recognition rather than an identification. Secondly, he submitted that it was likely, although there was no proof, that Mr Brennan had seen the appellant before because he was the former boyfriend of Mr Brennan’s niece and it was likely he had seen them walking around Cwmbran whilst he was working as a taxi driver.

[57]Those are not particularly good points, as Mr Harrington disarmingly accepted. More forceful is the fact that both witnesses must have seen the appellant in the course of the events leading up to the fatal blow and he was undoubtedly involved in some of the fighting that was going on, particularly with Sam Hosking, in the lumberjack outfit and with Scott Evans in the Hannibal Lecter outfit and then grappling on the floor with Daniel Davies (Sylvester the cat). But, at the identification procedure the indentification witnesses were not shown images of any other person who was present that night. The fact that both witnesses managed to identify the image of the one of the nine that was there that night made the force of the identification much less powerful, particularly as this was, as all agreed, a “fleeting glance” case.

[58]Judge Cooke did give the jury a careful direction, at 64A-C, that the jury must look at the identification procedure with a very critical eye. He particularly warned them of the possibility that all the images apart from that of the appellant were of strangers who had not been there that evening and so someone who the witness had seen before would be identified as the one person who was known and hence might be misidentified.

[59]Mr Harrington therefore submitted effectively, that their evidence is so weak that it cannot be rescued by so – called supporting evidence from other witnesses, such as that of Natalie Richards or the pathologist, so that case should not have been left to the jury and the conviction is unsafe.

[60]The other area of the identification evidence that Mr Harrington has concentrated upon is that of Mr Kempson. Mr Harrington submitted that because of the way Mr Kempson’s evidence to the Inquest was dealt with, it meant that the force of his evidence on the identification of the person who dealt the fatal blow to Mr Davies was unfairly diminished and gave an unfair advantage to the prosecution at the trial because it was able to attack the credibility of Mr Kempson’s evidence in a way it could not have done if the Inquest had not taken place and Mr Kempson had not given the evidence he did at it. The Inquest would not have taken place but for the incompetence of the CPS and the advising lawyer in concluding that there should not be a prosecution.

[61]In summary Mr Harrington’s submissions were these:(1) this was a “fleeting glance” case where the evidence of the crucial identification witnesses was uncertain and the procedure for both Ms Edwards and Mr Brennan was flawed.

(2) It should not have been left to the jury, even if the weak direct identification evidence could be supported by other evidence such as that of the pathologist or Natalie Richards or Mr Kempson – either positively or negatively.

(3) Because of the flaws in the way Mr Kempson’s evidence had been dealt with at the Inquest, that gave the prosecution an unfair advantage in being able to attack his evidence at the trial, which in fact fully accorded with what he had said in his witness statement some 2 ½ years previously and just days after the incident.

(4) As an identification case, this should have come on for trial much sooner. The fact that the trial took place some 2 ½ years after the incident meant that even more care had to be taken in deciding whether it should be left to the jury.

(5) Accordingly, despite the careful directions of the judge, this conviction is unsafe.

[62]Mr Harrington did not directly challenge the judge’s ruling that the trial should not be stayed for abuse of process. Nor did he directly challenge the ruling that the case should go to the jury. But, effectively, he is challenging both those decisions in order to say that the conviction is unsafe.

[63]Mr Aubrey QC, for the Crown, submitted that the identification evidence of Mr Brennan was strong, apart from his equivocal answer to the compound question at the procedure. We note that this submission is at odds with the judge’s view, which was given in his ruling immediately after Mr Brennan had given his evidence, that his evidence, unsupported, “might not be enough to be left to a jury”. We think it clear that, if that was the only identification evidence, the judge would have been bound to withdraw the case from the jury.

[64]There are problems about Janet Edward’s identification evidence for two reasons. First, there is the fact that she was sure that the attacker of Mr Davies was wearing an orange t-shirt and she herself drew a distinction between an orange t-shirt and a brown one. She was sure that the attacker was not wearing a brown t-shirt. We note what the judge said about it being unlikely that a t-shirt that was brown in a white light would appear orange in sodium lighting. If the attacker was wearing an orange t-shirt, then it seems to us unlikely it could have been the appellant.

[65]However, as against that, there is her answer in cross-examination when she was shown a photograph of the appellant wearing the brown t-shirt at the pub that evening that she saw that man, in that t-shirt hit Gareth Davies, adding that it looked orange.

[66]The second problem was the possibility that she recognised him because he had been in her taxi at the time of the dog incident. But she was adamant that she had not seen his face on that occasion and so it could not be a case of recognition at the time of the identification process. There is, of course, the possibility that she had recognised him as simply being someone involved in the fighting outside the pub and put two and two together. But that was for the jury to decide.

[67]Mr Aubrey submits that there was other, strong supporting evidence against the appellant. The principal facts he listed were: first, there is the evidence of the pathologist that the fatal impact leading to the brain damage was to the right hand side of the back of the head, whereas the man that Mr Kempson saw fall to the ground fell to the left. Secondly, the pathologist reported injury to the left side of Mr Davies’ face which was consistent with a right handed punch to the left side of his face, as described by the two taxi drivers, but contrary to the evidence of Mr Kempson. Thirdly, the evidence of Natalie Richards and Amanda Hughes was that they saw Matthew Ballam, who was dressed as “Buzz Lightyear” lying on the ground at a time when Mr Kempson was outside watching, which was consistent with his evidence at the Inquest. However, Mr Ballam had got up by the time Gareth Davies had been struck and had fallen. Fourthly, the CCTV showed that Gareth Davies did not have a glass or bottle in his hand immediately before walking up the steps (at about 1.20 am). He was carrying his wand in his left hand and a mobile phone in his right hand. Other photos taken earlier show that, at that stage, he was not drinking blackcurrant. Fifthly, Mr Kempson’s accuracy on identification details was reduced by his statement (in his original statement) that Mr Naserayan was wearing a short sleeved t-shirt, whereas the CCTV showed that he was wearing a white long sleeved t-shirt. In his oral evidence at the trial, Mr Kempson said that Mr Naserayan was wearing a short sleeved dark t-shirt.

Analysis

[68]Because of the history of the proceedings prior to the trial this is a most unusual case. It has caused us deep concern. We have reached the following conclusions: first, there was plainly a prima facie case against the appellant and he should have been charged immediately after the identification procedures in November 2007. The fact that he was not cannot be blamed on him. It was the result of incompetence on the part of the CPS and advising counsel. As the judge said in his abuse ruling, the decision not to charge the appellant was “both incomprehensible and indefensible”. Secondly, it is obvious that if the appellant had been charged, there would have been no Inquest in May 2008. Thirdly, it is clear that the Coroner took the view that the likely verdict of the Inquest would, in the absence of a change of evidence of the main identification witnesses, a verdict of “unlawful killing”. She took the trouble to notify the police of her preliminary view, doubtless hoping that they would take the hint and charge the appellant. The police did not do so. Fourthly, we note that the Coroner did not inform the solicitors acting on behalf of the appellant of her preliminary view. In our judgment fairness demanded that she should have informed them. The judge said, in his abuse ruling, that the solicitor acting for the appellant must have appreciated that he was at risk; that is not obvious. But we have seen nothing to suggest that the interests of the appellant were safeguarded at that stage.

[69]Fithly, at the Inquest it is clear that Mr Kempson was not given the opportunity to read his statement before he gave evidence. That is normal practice at a criminal trial, particularly where there is a significant delay between the events and the trial itself as there was in this case. We would have hoped it was normal at an Inquest. It is clear that Mr Kempson gave evidence at the Inquest that was at odds with his original statement. There could have been no challenge to Mr Kempson’s honesty and independence when he gave his statement on 31 October 2007. There would have been none at the trial but for his evidence at the Inquest, even if there had been a strong challenge to the correctness of his recollection.

[70]Sixthly, we think it also obvious that this statement was likely to be much more reliable than oral evidence given seven months or 2 ½ years after the event. But the consequence of Mr Kempson not being able to refresh his memory before he gave his evidence at the Inquest was that, almost inevitably, he gave evidence that was inconsistent with his earlier statement. Yet he was not permitted the opportunity then to consider his statement or to explain himself. As he said in evidence at the trial, he found the experience of giving evidence at the Inquest both uncomfortable and intimidating.

[71]Lastly, as a consequence of Mr Kempson giving evidence at the Inquest that was inconsistent with his contemporaneous statement, that gave the prosecution the opportunity, at the appellant’s trial, of being able to cross-examine Mr Kempson in such a way as to throw considerable doubt on his overall credibility as a witness. This meant that the one eye witness, who was honest and independent of all participants and who was capable of casting real doubt on the accuracy of the other two identification witnesses, whose identification evidence had significant flaws, would inevitably appear to the jury as a witness whose credibility was seriously in doubt.

[72]The consequence of these conclusions is that we must hold that there was a very significant irregularity in the Inquest taking place in the circumstances it did. Further, the Inquest resulted in detriment to the appellant at his subsequent trial because it gave the prosecution an opportunity to undermine the credit of Mr Kempson, who was a key witness for the defence on the identification issue, in circumstances which it would not normally have had. It is clear from our reading of the cross-examination of Mr Kempson that if the prosecution had not had the Inquest material, then he would, in substance, have stuck to the evidence given in his earlier statement. The fact that the prosecution could rely on the Inquest material, means, in our judgment, that the appellant did not have a fair trial. He suffered a major disadvantage as a result of incompetence on the part of the prosecution authorities coupled with an unfortunate failure of the Coroner to give Mr Kempson an opportunity to re-read his original statement.

[73]We therefore have to ask ourselves: is this conviction unsafe? Mr Aubrey urged upon us that there was powerful evidence against the appellant. This included not just the identification evidence of Ms Edwards and Mr Brennan, but the pathology evidence of a blow to the left side of Gareth Davies’ face, the evidence of Natalie Richards that the appellant was standing near to where Gareth Davies had just fallen and the CCTV evidence to contradict Mr Kempson’s evidence that Gareth Davies had a glass or bottle in his hand when hit. In addition, there were the undoubted lies of the appellant in his interview about being attacked and kicked.

[74]Against all that, however, we must remind ourselves that

the judge correctly directed the jury, at page 106C of his summing up:

“If you think that Andrew Kempson my be correct in saying that Gareth Davies fell other than as a result of a punch by Aaron Davies, then it follows as night follows day, that you cannot be sure of guilt”

. When the jury came to consider that vital question it must have been influenced by the fact that Mr Kempson’s credibility was seriously undermined by his evidence at the Inquest. We have concluded that if that Inquest evidence had not been before them, which it would not have been if there had not been the irregularities that had occurred, then the jury might well have decided that Mr Kempson might be right. Accordingly, the conviction must be unsafe.

Conclusion

[75]For those reasons we must allow the appeal and quash the conviction. If the Crown wishes to apply for an order for a retrial, we order that there must be an exchange of written submissions within 7 days of this judgment being handed down. Given the basis on which we have allowed the appeal, the Crown will have to address carefully the precise basis on which any such retrial should take place. If necessary we will hear oral submissions on the question of whether there should be a retrial.