Donovan & Anor v R. [2012] EWCA Crim 2749

[2012] EWCA Crim 2749Case No 2012/01943B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOD GREEN CROWN COURT
His Honour Judge Patrick
T2011/7400
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/12/2012
Before
THE LORD CHIEF JUSTICE OF ENGLAND AND WALESMR JUSTICE FULFORDMR JUSTICE BEAN
Between
Reece DonovanAppellantJohn KafundaAppellantRRespondent
G Cammerman for DonovanI Fessal for KafundaMark Dennis QC and Christopher Hehir for CrownHearing Hearing date: 29 th November 2012
Judgment

The Lord Chief Justice of England and Wales:

[1]Reece Donovan and John Kafunda were convicted at Wood Green Crown Court on 2 March 2012 of robbery and violent disorder committed on 8 August 2011. Donovan was also convicted of burglary on the same date. These offences formed part of serious incidents of public disorder in London and other cities in August 2011. They attracted considerable notoriety because filmed footage of the robbery was widely played on news programmes in the days and weeks following the disturbances.[2]The convictions depended on the evidence of anonymous witnesses, that is, witnesses whose true identity was not known to the defendants before or at any stage of the trial. They were never seen by the defendants giving their evidence, and their voices were disguised. This was quite deliberate. The purpose of the anonymity orders was indeed to ensure that the defendants did not know and could not know the identity of their accusers. Therefore they could not confront the witnesses who incriminated them. From their point of view the crucial evidence against them was given secretly.[3]The process is permitted by ss.86-90 of the Coroners and Justice Act 2009, in effect repeating s.4 of the Criminal Evidence (Witness Anonymity) Act 2008. Nevertheless, as this court has made clear, a witness anonymity order is to be regarded as a special measure of the last practicable resort, (R v Mayers [2009] 1 Cr. App. R 30) and, in accordance with long established common law principles, such an order cannot be made or upheld if, in the result, the trial would be or was unfair.[4]The only ground of appeal in this case challenged the anonymity orders, effectively on the basis that in a case in which the convictions depended on the evidence of anonymous witnesses, the orders caused irredeemable prejudice to the defendants. In effect, because of the asserted fears for their safety by the witnesses their identity or anything which might enable them to be identified could not be revealed. This ground of appeal required us to undertake precisely the same exercise conducted by the trial judge, and involved an examination of all the relevant material in conditions to which public interest immunity principles applied. Having done so we concluded that the orders should not have been made and on 29 November this year the convictions were quashed. These are our reasons.

The facts

[5]A young student, Ashraf Rossli, who had no involvement in the widespread criminality which erupted on 8th August 2011, was travelling with a companion in order to provide moral support to a mutual friend who was afraid to be alone in her house because she lived close to one of the scenes of public violence. The two of them set out by bicycle, reaching the disturbances in the Queen’s Road in Barking at about 7.30pm. Mr Rossli’s bicycle was stolen by members of a group of youths wearing masks or other disguises, including hooded jackets, some of whom were armed with sticks. Attempts were made to steal his mobile telephone. An unknown male punched him in the face, breaking his jaw in two places and knocking him to the ground. The individual responsible for this was convicted of offences of causing grievous bodily harm with intent and robbery, in a separate trial which is not the subject of this appeal. This was an awful incident. It was not, however, suggested that either of these appellants was responsible for the theft of the bicycle or the serious violent assault.[6]The role attributed to the appellants was no less disturbing. They were alleged to have been among a number of youths who surrounded the helpless victim while he was sitting on the ground. A man alleged to be Kafunda created the appearance of assisting him by helping him to his feet while a man alleged to be Donovan investigated the contents of the ruck-sack. When the victim noticed what was happening, this man pushed him backwards so that he could not prevent the robbery. The man alleged to be Donovan removed a number of items from the ruck-sack, and both men then left the scene. So far as the man alleged to be Donovan was concerned, he then formed part of another group which shortly afterwards broke into and looted a nearby supermarket.[7]The victim was unable to provide a description of his assailants. The events were however filmed by local residents, and recorded on CCTV. Nevertheless the view of the faces of these perpetrators was too limited to enable any identifications to be made. Accordingly identification parades were not arranged, and the prosecution did not instruct an expert in facial mapping. The prosecution depended on the evidence of one witness who identified Donovan and another witness who identified Kafunda after the event, from the filmed footage, but without being able to recognise the faces of the assailants.[8]Throughout the proceedings these two witnesses were known by pseudonyms, “Kieran Thomas” and “Sarah Bishop”. Thomas identified Donovan and Bishop identified Kafunda.[9]In his evidence at trial Kieran Thomas said that he had known Donovan for a long time. He recognised him as the white man who rifled through the victim’s ruck-sack. He based this recognition on the clothes he was wearing (a pair of trainers with a green flash or stripe, said to be unusual, the cap and Ralph Lauren jacket), his gait, his hair and the way he smoked a cigarette. He agreed that he could not distinguish any particular physical features of this assailant from the filmed footage. He accepted that he had a number of convictions for offences of dishonesty, but denied that he had any reason to make a false allegation against Donovan. During her evidence, Sarah Bishop said she had known Kafunda for about nine years. She recognised him as the black male who helped the victim to his feet from the side profile of his face and the way he was dressed, saying that the way he appeared to help the man to his feet was characteristic of Kafunda. However one examines this identification evidence, and whether it was given anonymously or in the ordinary way, this did not provide overwhelming or compelling evidence of recognition or identification. As counsel for the prosecution was to accept at trial, on any view the identification evidence, although crucial, was not of the best.[10]The prosecution was able to indicate some additional material, independent of the identifying witnesses, which provided a measure of support. When Donovan was arrested he offered a false alibi, which was disproved by the cell site evidence directed at the whereabouts of his mobile telephone at the material time. He gave the police the wrong telephone number, in the sense that he said that the last three digits were 406 whereas the prosecution were able to prove that the mobile telephone he was using at the time ended with the numbers 405. The cell site evidence showed that he had been in the immediate area of Queen’s Road shortly before these offences and that thereafter he moved to the area close to the premises which were the subject of the burglary charge. This, of course, was unfortunately true of numerous young men. Kafunda, like Donovan, denied any involvement in the offence, and told investigating police officers that he had been at home throughout that evening, watching news coverage of the disturbances. In due course, again like Donovan, at trial he accepted that he had lied to the police about his whereabouts at the time when the offences were committed. In any event, however, it was correctly agreed on both sides that whether or not the evidence of the identifying witnesses was the only evidence against each appellant, their evidence was decisive. Without it there would have been no case for either appellant to answer.[11]The Crown applied on 30 January 2012, in advance of the trial date, pursuant to s.86 of the Coroners and Justice Act 2009 for anonymity orders in respect of Kieran Thomas and Sarah Bishop. Each had given a statement for the purposes of the application, a redacted version of which was disclosed to the defence. Thomas stated that he feared for the safety of himself and his family. He said that he felt strongly that if Donovan heard his real name or saw his face, he would be liable to suffer serious harm. If identified, he would be put in fear of death. He would not give evidence if his identity could not be concealed. Bishop’s statement was to the same effect, but in relation to Kafunda.

The anonymity orders

[12]Section 88 of the 2009 Act provides that a witness anonymity order in criminal proceedings may only be made if three conditions are satisfied. Condition A is that the proposed order is necessary—(a) in order to protect the safety of the witness or another person or to prevent any serious damage to property, or(b) in order to prevent real harm to the public interest (whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities, or otherwise). Condition B is that, having regard to all the circumstances, the effect of the proposed order would be consistent with the defendant receiving a fair trial. Condition C is that the importance of the witness's testimony is such that in the interests of justice the witness ought to testify and— (a) the witness would not testify if the proposed order were not made, or (b) there would be real harm to the public interest if the witness were to testify without the proposed order being made. In determining whether the proposed order is necessary for the purpose mentioned in [Condition A], the court must have regard (in particular) to any reasonable fear on the part of the witness— (a) that the witness or another person would suffer death or injury, or (b) that there would be serious damage to property, if the witness were to be identified.[13]Section 89 provides: 1) When deciding whether Conditions A to C in section 88 are met in the case of an application for a witness anonymity order, the court must have regard to—(a) the considerations mentioned in subsection (2) below, and(b) such other matters as the court considers relevant. (2) The considerations are— (a) the general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings; (b) the extent to which the credibility of the witness concerned would be a relevant factor when the weight of his or her evidence comes to be assessed;(c) whether evidence given by the witness might be the sole or decisive evidence implicating the defendant;(d) whether the witness's evidence could be properly tested (whether on grounds of credibility or otherwise) without his or her identity being disclosed;(e) whether there is any reason to believe that the witness— (i) has a tendency to be dishonest, or (ii) has any motive to be dishonest in the circumstances of the case, having regard (in particular) to any previous convictions of the witness and to any relationship between the witness and the defendant or any associates of the defendant;(f) whether it would be reasonably practicable to protect the witness by any means other than by making a witness anonymity order specifying the measures that are under consideration by the court.[14]The judge reflected carefully on the evidence as a whole as it applied to the case against each appellant. He accepted that “plainly the defence is handicapped by not knowing the identity of the witness” and he recorded the concession by the Crown that even if the “evidence is not the sole evidence against the defendant, it is decisive evidence”. He considered whether there was:
“… any reason to believe that a witness has a tendency to dishonesty or any reason to be motivated against each defendant. There is nothing I have seen or heard which leads me to conclude that either is motivated against the person that they have purported to identify. Both witnesses have convictions for dishonesty offences. Neither has convictions for deception or perjury.”

Discussion

[15]As we have already underlined, a witness anonymity order is to be regarded as a special measure of last practicable resort. These cases are, therefore, by their very nature exceptional, and the obligation on the Crown to comply with its duties in relation to full and frank disclosure applies with unremitting force (R v Mayers). In the somewhat different context of restraint orders, in In re Stanford International Limited [2011] Ch. 33, Hughes LJ observed:
“… in effect a prosecutor seeking an ex parte order must put on his defence hat and ask himself what, if he were representing the defendant … he would be saying to the judge …”
. These observations apply equally to witness anonymity applications. The judge requires the assistance of the prosecution to ensure that the effect of any anonymity order, made following the hearing of an application at which the defendant is neither present nor represented, will not result in proceedings which, looked at overall, would or might be unfair. It is a hallmark of our traditions, and the principle of administration of criminal justice, that an unfair trial cannot produce a safe conviction.[16]These present applications were made in formulaic and, save for the defendant’s names, in identical terms. The law was set out in some detail, but as to the facts there was a brief summary:
“The witness is in a position to give important eye witness evidence identifying (Donovan/Kafunda) as one of the people captured on film committing the offence. The witness knows the defendant well”
. In each case there was an anonymity application made by the Crown Prosecutor, a Superintendent’s Report on anonymity, a Report and Risk Assessment from the police, redacted and unredacted versions of the witnesses’ antecedents, redacted and unredacted statements from the witnesses about their fear of the respective defendants, and some handwritten statements from the witnesses.[17]In the course of our examination of the material we noted a passage on the second page of one of the handwritten statements taken from Kieran Thomas, dated 6 February 2012, and a passage on the first page of Sarah Bishop’s handwritten statement of 5 October 2011 which caused us particular concern. If we were to relate these passages in the course of the judgment, the true identity of the witnesses would be likely to be revealed. We therefore record that these passages disclosed factual matters which would have provided a source of significant cross-examination about whether the witnesses were totally credible, and whether, when assessing their credibility, the jury could assume that they were truly dispassionate and objective. These handwritten statements were included in the papers put before the judge, but it is not clear whether the relevant passages were specifically drawn to his attention. The relevant passages are not mentioned in the application, the Superintendent’s Report or in the Report and Risk Assessment by the police, in either case (although this is unsurprising as regards Kieran Thomas’s statement, given it is dated 6 February 2012). Counsel who appeared for the prosecution at trial was unable to recall whether he had specifically drawn this material to the attention of the trial judge. He may have done so, but he may not. For the purposes of these appeals Mr Dennis QC sensibly invited us to proceed on the basis that this has not happened.[18]Notwithstanding that concession, Mr Dennis submitted that the judge performed what he described as a “proper balancing exercise”. The judge was required to make a careful judgment on two considerations which potentially, at any rate, are liable to conflict. The first is proper disclosure to the defence in the context of public interest immunity considerations and the second, the potential for unfairness to the defendant whenever an anonymity order is made. That is why s.89(2)(d) enjoins the judge to reflect whether the evidence of the witness can be properly tested if his or her identity is not disclosed, and s.89(2)(e)(ii) directs the attention of the judge to consider whether the witness for whom the anonymity order is sought has any motive to be dishonest in view of any relationship between the witness and the defendant. The material we have seen suggests that the decision to grant anonymity to these two witnesses meant that in the case of each defendant the jury was prevented from hearing admissible and substantive material which was relevant to the question whether either or both witnesses may have been lying or may have had any motivation for lying. In short, material of potential value to the defence, providing grounds for believing that both witnesses may have had a motive for incriminating the defendant they purported to recognise from the filmed footage was indeed available. Nevertheless the trial judge did not allude to it, and his observations, noted at paragraph 14, suggest that, for whatever reason, he was unaware of its potential relevance. His decision was therefore flawed, and the subsequent trial was unfair.[19]Accordingly the convictions were quashed.

Cited in 3 later judgments