Nico Brown [2019] EWCA Crim 1143
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R v Nico Brown [2019] EWCA Crim 1143 concerned an appeal against conviction for wounding with intent to cause grievous bodily harm and possessing an offensive weapon, where the sole ground advanced was that the judge erred in admitting hearsay evidence of a statement made at the scene of the crime by a person who could not afterwards be identified or traced.
Mr Brown was convicted by majority verdicts of 11:1 of both offences and sentenced to a total of eight years’ imprisonment. The victim, Mr Brian Odour, was stabbed as he sat in his car waiting to turn from a side street onto Goldhawk Road near Shepherd’s Bush Green in West London on 11 June 2017 shortly before 1pm. The assailant was witnessed by many members of the public getting out of a car stopped behind the victim’s vehicle, attempting to pull open the driver’s door and making repeated downward thrusts with a knife through the opening before running back to his own car and reversing away at speed. Mr Odour drove immediately to Charing Cross Hospital, where he was treated for a severe wound to his right wrist. He refused to make a statement or assist the police. None of the eyewitnesses could give more than a general description of the assailant as a black male of slim build, and two witnesses shown an identity parade including the appellant did not identify him.
The prosecution case was accordingly based entirely on circumstantial evidence. A witness, Ms Ghani, made a 999 call immediately after the incident in which she gave what she said was the registration number of the car driven by the assailant. That number matched the number of a black Audi car of which Mr Brown was the registered keeper. Another eyewitness made a note of a slightly different registration number, and a further witness identified the assailant’s car as a black Audi with a registration number beginning with the letters “PF”. Automatic Number Plate Recognition camera data was consistent with the appellant’s Audi being in the area when the stabbing occurred. Cell site data showed that the appellant’s mobile telephone was in the Shepherd’s Bush Green area at the relevant time. DNA from the appellant was found on the window of the driver’s door of Mr Odour’s car.
The trial took place before His Honour Judge Cole and a jury at the Crown Court at Harrow over five days in June 2018. The appellant gave evidence, accepting that he owned the black Audi with the registration number given but denying that he was the person who attacked and stabbed Mr Odour. He said he had lived all his life in the West Kensington – Shepherd’s Bush area, knew the victim and had spoken to him from time to time. He could not remember exactly where he was on the day in question but said his normal daily routine was to visit a disabled friend called Mr Daryl Haynes between 11am and 1pm at his house near Shepherd’s Bush Green. Mr Haynes gave evidence that the appellant visited him between 11am and 1pm on most days, although he could not recall whether the appellant was with him on the day in question.
Ms Ghani gave evidence that she was a passenger on a bus travelling along Goldhawk Road at the time of the stabbing, sitting on the top deck near the front with her mother and five year old son. She saw a man trying to stab someone in the driver’s seat of a car but immediately rushed to her child to cover his eyes. She had seen another black saloon car behind the victim’s car but did not herself note its registration number. Within 40 seconds of the incident she made a 999 call, the recording of which captured her reporting the stabbing and giving a car registration number which she said was that of the car driven by the assailant. Ms Ghani said in evidence that she read this number from the mobile telephone of a woman who was sitting behind her on the bus. Ms Ghani did not know this person and recalled that she had a South African accent. On the recording a woman’s voice could be heard in the background helping Ms Ghani with the phonetic spelling of the registration number. CCTV footage from inside the bus showed a female passenger sitting behind Ms Ghani who, when the bus began to move immediately after the stabbing, could be seen retrieving her phone and then, during the 999 call, holding it out towards Ms Ghani so that Ms Ghani could see the screen.
The police made extensive efforts to trace this passenger by checking Oyster card records and with a witness appeal on the bus route and in the local area, but these efforts were unsuccessful. It was not suggested that there was any further step which the police could reasonably have taken but did not take.
The prosecution contended that the statement made to Ms Ghani by the unidentified passenger was admissible hearsay evidence both as part of the res gestae under section 118 of the Criminal Justice Act 2003 and under section 114(1)(d) of that Act as being in the interests of justice. The judge ruled that the evidence was admissible on both bases. He was satisfied that there was no possibility of concoction of the information given to Ms Ghani by the unidentified passenger, which was recorded and relayed spontaneously as the incident was unfolding or in the immediate aftermath, and described the evidence as classic res gestae material. He went through the list of factors set out in section 114(2) of the 2003 Act and concluded that the interests of justice test was satisfied. He also concluded that there was nothing so unfair about admitting the evidence as to justify excluding it under section 78 of the Police and Criminal Evidence Act 1984.
The sole ground of appeal was that the hearsay evidence given by Ms Ghani was wrongly admitted because the name of the person who made the statement to her was not known. The appellant relied on R v Mayers [2008] EWCA Crim 2989, [2009] 1 WLR 1915, in which the Court of Appeal held that section 116 of the 2003 Act requires the relevant person to be identified not just to the court but to the defence, and that this requires at least the name of the witness to be provided to the defence. Where the name of the witness is unknown, it is impossible to fulfil that requirement. The parties were agreed that the evidence was not admissible under section 116.
The appellant also relied on R v Ford [2010] EWCA Crim 2250, in which the Court of Appeal held that a statement which is sought to be adduced in evidence in circumstances where the anonymity of its maker is sought to be preserved can only be so adduced if it falls within the provisions of the Criminal Evidence (Witness Anonymity) Act 2008 or its successor, the Coroners and Justice Act 2009. In that case an unknown female had handed a police officer a piece of paper bearing a vehicle registration number and a note saying she did not want to get involved, and the Court of Appeal held that the evidence was not admissible under section 114(1)(d) of the 2003 Act. The appellant contended that similar reasoning applied in the present case.
The Court of Appeal rejected these arguments. Lord Justice Leggatt, giving the judgment of the court, held that there is a difference of principle between a witness who cannot be called to give evidence because, for instance, he is dead or untraceable, and a witness who is able and available to give evidence but not willing to do so. The witness anonymity provisions of the 2009 Act, like those of the 2008 Act, are concerned with cases where a witness is able and available to give evidence but is not willing to do so unless their identity is withheld. The Ford case indicated that the Act is also relevant to a case in which there is reason to think that a person’s unavailability to give evidence is the result of unwillingness to do so. However, even on the broadest view of their purpose and scope, the statutory provisions for securing the anonymity of witnesses are not concerned with cases where a potential witness has not expressed any unwillingness to be identified or to give evidence, but the name of the witness cannot be provided to the defence because the witness cannot be traced. The present case fell squarely in that category, as there was nothing to suggest that the passenger who recorded the registration number was seeking to remain anonymous or would not have been willing to assist the police unless her name or other identifying details were withheld.
The court held that it is only the 2003 Act which governs such cases, and that under that Act there is no general rule that a statement made out of court cannot be admitted as hearsay evidence unless the maker of the statement is identified. The requirement in section 116 exists because, if the identity of the person who made the statement is not disclosed to the defence, the defence is deprived of the opportunity that it would otherwise have under section 124 of the Act to adduce evidence bearing on that person’s credibility as a witness. Where the provision relied upon is section 114(1)(d), the fact that the protection afforded by section 124 would be ineffective may in many cases be a powerful or decisive reason why the court cannot be satisfied that it is in the interests of justice for the statement to be admissible. However, that is not a relevant consideration where it is clear from the circumstances in which the statement was made that there would be no realistic scope for questioning the credibility of its maker in any event. In such a case there is no principled reason to treat the question of admissibility any differently from a case where the name of the person who made the statement is known but she cannot afterwards be found despite taking all reasonably practicable steps to do so.
The court emphasised that the very fact that the requirements for admitting a statement as part of the res gestae are satisfied demonstrates that the inability to adduce evidence bearing on the credibility of the maker cannot be said to have caused prejudice, because the res gestae doctrine only applies where the possibility of concoction or distortion by the maker of the statement can safely be disregarded. In the present case, the conduct of the unidentified passenger in recording the registration number and explaining what she had done occurred immediately after and in what was obviously a spontaneous reaction to witnessing a shocking event, and any possibility that the information might have been concocted or deliberately distorted could safely be excluded.
The court acknowledged that it was necessary to consider the possibility that the unidentified passenger did not record the registration number accurately, but held that this possibility of error was a matter which the jury was well able to evaluate. The jury had the evidence of Ms Ghani and the CCTV footage from which to assess how good a view the unidentified passenger had of the car number plate, the length of time for which it was in her sight and how soon after seeing it she entered the number on her phone. Ms Ghani could be, and was, cross-examined about those matters. The jury could also fairly judge the probability that the registration number, if recorded incorrectly, happened to match the number of a car which was also a black Audi, was in the vicinity at the relevant time, and belonged to an individual who was also in that area, whose description was consistent with that of the assailant and whose DNA was found on the driver’s door of the victim’s car.
The Court of Appeal was satisfied that the hearsay evidence given by Ms Ghani was admissible and was properly admitted by the judge. In short, hearsay evidence of a statement made at the scene of a crime by an unidentified person who could not be traced was held admissible under the res gestae rule and section 114(1)(d) of the 2003 Act where there was no suggestion that the person was unwilling to be identified and the circumstances excluded any possibility of concoction or distortion.