However in my view there is insufficient evidence to justify a charge of arson with intent to endanger life. If, as the evidence tends to suggest, this was a ‘grudge’ attack, the only person whose life it is likely the defendant intended to endanger is V. Yet the words of the arsonist ‘ I wish you were here to burn, you witch’ tend to negative any intent to endanger her life. If the arsonist was G, he apparently believed she was not in the shop at the time. There is no other evidence from which the jury could infer the specific intent to endanger life, and so I think this charge should not be pursued.
C was with two friends on the evening in question, namely k and A. I am particularly interested in any evidence that k might be able to give as it would appear that she was much closer to the kebab van than her friends when the wounding actually took place. Having said that, I feel that both of them should be contacted and proofs of evidence obtained.
Please do not hesitate to contact me if you have any queries on this matter.
The effect of Mr. H’s interview also needs to be considered. The fact that he refused to answer questions relating to the assault could potentially lead to inferences which might strengthen the case against him. In order to confirm this, it is necessary to know whether he was cautioned prior to interview about the effect of the refusal to mention matters which he might later wish to make use of in his defence. For this and other reasons, I need to listen to the tape of interview (M).
The strength of the case: attempted robbery
In addition, there is the question of the words which H is alleged to have uttered when arrested: ‘I only tried to rob the place’. Its admissibility ought to be challenged, both under s76 fo the Police and Criminal Evidence Act 1984 (reliability) and s78 (fairness). It is also remarkable that the custody record entry for 2110 hours states that these words were uttered on arrest. Yet H had been arrested shortly after 1930 hours by PC; and was booked in by PS Waller at 1945 hours. This anomaly needs explanation at the least, and is likely to undermine the admission it contains, even if the judge rules that it is admissible.
In my view it is necessary to obtain expert evidence on the likely effect of the combination of prozac and alcohol upon his mental state(M).
Action to be taken:
It will be apparent from the points made above that there are a number of actions which I advise my instructing solicitors to take. IN particular, I would ask that:
a) statements be taken from B and anyone else who may be able to establish H’s presence in the various public houses in question on the afternoon in question;
b) an early conference be arranged in order to obtain H’s instructions on various of the matters canvassed above, and advise him more fully;
c) the CPS be asked for the schedule of unused material, a copy of H’s tape of interview, summaries of the interviews of the co-accused, copies of the criminal records of the co-accused and any witnesses, the crime report sheets and any relevant radio/ telephone messages;
d) a map of the estate be agreed;
e) a schedule of the descriptions of the co-accused put forward by the various witnesses be prepared for use as a working document by the defence at trial;
f) expert evidence be sought as to the effect of combining prozac and alcohol in the way in which H did(M).
Subject to the additional evidence requested and to the advice given below, the prosecution has a reasonable prospect of establishing an offence of aggravated arson by recklessness, and a good prospect of establishing an offence of simple arson. The main issue in this case is identity.
As the evidence presently stands, the prosecution must seek to establish identity by a fairly lengthy chain of circumstantial evidence:
a) Attack was at 11.30 pm on 24/11/02, just before G seen in High Street
b) G was running down High Street at 11. 45 pm.
c) G got into a Ford car
d) Rag found at scene was used tolight petrol
The gap that needs to be plugged is between (4 and (5: it must be shown that the blue rag could not have been left in the car by anyone else hiring it. Further inquiries need to be made and if appropriate further evidence taken from Thomas.(G)
I shall deal with these matters, and all other matters with regard to evidence, witness by witness.
A further statement is required from V in which she should deal with the following matters:
a) the voice shouting ‘I wish you were here to burn, you witch’. Did she recognize this voice? If not can she at least say whether it was a make voice? How far away was she from the window? Close enough to hear clearly?
b) ‘I noticed a strong smell of petrol’. She may not be allowed to say this unless she can show that she is familiar with the smell of petrol. In any event forensic evidence as to the presence of petrol in the blue rag will be required.
The sentence beginning ‘if the fire had taken hold’ is a mixture of non-expert opinion and hearsay and will be inadmissible.
Ms V’s second statement dated 4th December is wholly inadmissible hearsay, J should be traced and a full statement taken from her as to any admissions made by G. (G)
A further statement from T is required, dealing with three matters:
a) what were the circumstances in which he made the observation: how far was he from G when he first saw him and how far from the car when he observed the registration number? What was the duration of these observations?
b) Did he see G running towards or away from ‘The Real Feel’? this evidence is obviously stronger if G was running away.
c) How soon after the sighting did he write down the registration number of the Ford? Only if it was relatively quickly will he be allowed to refresh his memory from the piece of paper.
There is at present insufficient evidence as to the quality of street lighting, or lights from shop windows in the High Street. This may well be crucial, and should be dealt with by Inspector Green in a further statement. The recognition of G by T is disputed, and judge will have to give the jury a Turnbull direction; therefore any evidence to support the quality of the identification will be helpful. It would also be desirable to have a plan showing the layout of the High Street in Avebury.(G).
Where the arrested suspect refuses to cooperate in any way and refuses to be put on an identification parade; where ‘the prosecution may only be able to get their case going by revealing the fact that the witness was able to pick out the defendant from photographs’.
There was no identification parade in the case of L, and the papers do not say why. The argument against producing the collator’s photograph is a strong one under R v. Lamb, particularly as H had no opportunity to see L’s face save during the chase, which took place at night. W, however, is in a better position, as he picked out a photograph which was in an ordinary family album, and he in fact went up to the driver in Baker Road. No doubt it can be said, though, that as he went to the flat intending to find L, it is not surprising that he picked out a photograph of S’s boyfriend.
In short, the evidence against L rests almost entirely on the identification by photographs. True, inside the mini was an envelope addressed to him at his old address. There is no direct evidence of whose car it was or who had permission to drive it. Whoever was driving the car undoubtedly possessed such a large amount of cannabis that it could only have been intended for supply. Can it be proved that that person was L? this is doubtful, having regard to the photograph evidence and the inevitable Turnbull direction.
A further statement is required to produce photographs of the shop, a plan of the shop and street plan (see paragraphs 14 and 22 above). Has the burnt carpet been retained? If so, Inspector Green should take possession of this as an exhibit and mention it in her further statement.
A considerable amount of forensic evidence is required to support Inspector Green. It is not sufficient that she says the plastic container (SG/1) and milk bottle (SG/2) contained or smelt of petrol: this must be established by expert evidence.
Any evidence that inspector Green is able to give following her investigations into a threats made against Jim (see paragraph 15 above) should be dealt with in a second further statement.
In addition to the matters raised above in relation to the witnesses, the defendant’s alibi should be investigated and statements taken from Sidney and Paul, as well as any other witness discovered in the course of the investigation. Evidence should be obtained to show how far from the scene of the crime the ‘Green Baize’ Club is , whether it is ‘members only’, and if so whether G is a member. I would then like to see this further evidence, so that I can advise further if necessary(G).
It may be helpful to the CPS if I now list all the numerous pieces of evidence that I have advised should be sought.
a) Additional statement from V dealing with
The voice – 11(1)
Details of damage to shop-11(3)
Facts behind the alleged grudge-11(4)
b) trace and take a statement from Julie B –13
c) take a statement from M
d) Peters to have the piece of paper with the Escort registration number available
e) Additional statement from Thomas dealing with
How exhibit TY/1 was created-24
The hire history of R347
f) exper evidence from a fire officer who attended the scene, dealing with
did the fire create a risk to life?
Was petrol used to start fire?
The nature and extent of the damage
g) inspector Green and/or Peter to give further evidence re street lighting –22- and producing as exhibits
photographs and plan of shop
plan of street
the damaged carpet
h)evidence following investigation of G’s alibi-32-including
statements from the Larkhalls
evidence from the snooker club
h) forensic evidence from appropriate experts:
petrol on blue rag
petrol in plastic container
check plastic container and milk bottle for fingerprints-29
When all the further evidence suggested in this Advice is to hand I would like the opportunity to review it once again, in particular with a view to advising whether the prosecution should proceed with a charge of aggravated arson.(G)
Given the location of the incident I wonder whether enquiries have been made to establish whether there were any CCTV recordings made that evening that might assist in the identification of the man running from the train: no mention of this is made in my instructions.
D describes he assailant as a white make, in his forties with short dark hair, and wearing dark clothes. She does not provide any more detail, but indicates that she picked out .
There are two problems with the evidence of them, apart from the brevity of their cescriptions. Firstly, after pursuing the assailant from the train they both lost sight of him, which increases the risk of an erroneous identification; secondly, both men had been out celebrating, and had what A describes as ‘a successful evening’. This again may cause problems in proving the reliability of their evidence. Secondly, it appears that neither man was invited to participate in the identification parade as witnesses. Those instructing me will appreciate that failure to do so now constitutes a breach of Code D para 3.12. The prosecution is therefore heavily dependent on the Court in seeking to dissuade it from exercising its discretion under s. 78 PACE to exclude the identification evidence of these two men, despite the breach. However, it seems that A will be unavailable as a live witness: I address this point at paragraphs 15 and 16 below.
These errors must be rectified; the inspector’s evidence is of little use as it stands. I presume that the forms completed as part of the procedure will contain the necessary information, and that this officer produced her statement in a hurry. I would ask for sight of the forms and for inspector stern to make a more detailed statement dealing properly with the procedure. If the state of the evidence relating to the identification cannot be improved I advise that this count should be dropped.
There is little evidence to justify this charge.
I would ask those who instruct me to contact me again once the further enquiries I suggest have been made, so that I may have the opportunity to review the state of the evidence. If it cannot be improved I do not think that there is a realistic prospect of conviction on any count, and the matter should not be pursued. If I can assist further please feel free to contact me by telephone at a mutually convenient date.
The defendants appear jointly on the same indictment. L is charged (counts 1 and 2) with possession with intent to supply (alternatively simple possession of ) 1,000 grammes of cannabis resin, which, according to the statement of DC dated 28 Feb 2003, has a street value of $ 4,080. he is charged (count 3) with possessing 440 mg of amphetmine sulphate. S is charged (Counts 4 and 5) with possession with intent to supply (alternatively simple possession of ) 179 grammes of cannabis resin, with a street value of $600.
The driver decamped before either officer could get a good look at his face. Their descriptions of him are fairly vague.
After an unsuccessful search for the driver, police officers returned to the mini. Found a plastic carrier-bag in the front driver’s well. It contained two slabs of what he took to be cannabis and which indeed was 999 grammes of cannabis resin.
Ps found, on the floor in front of the passenger’s seat, an insurance cover note in the name of k of 11 B Milton (MC/1), an envelope bearing the name of L of 36 A Brick (MC/2) and five keys on a ring (MC/3). Although the documents are exhibits, there are no copies of them in my brief. I should be grateful if these could be provided. Copies must also be sent to the defence and sufficient made to distribute, in due course, to the jury.
The door was answered by S. on entering the flat, the three officers went into the lounge. On a coffee table they found a number of bank notes (TW/1) and cheques (TW/2). W refers to a ‘sum of money’; the other two officers say $300. I should be grateful if W would make a further statement saying what happened to the money throughout and exhibiting it and stating how much was there and in what denominations. Photocopies of the cheques should be provided for the defence and, in due course, for the jury.
W also found, on the floor behind the door to the junk room, a plastic bag containing what appeared to be cannabis resin: TW/3. the bag in fact contained 179 grammes of cannabis resin. As soon as he looked at the bag, W (rightly) suspected that it was cannabis, and asked S what it was. He did not caution her and her answer to his question about it is therefore probably inadmissible under Code C (para C 10.1). she was then arrested.
C searched the vehicle. They found a tobacco tin with cannabis (DH/2 –later sealed in C306510) and two reefer-type cigarettes (DH/3-C306509). DH/2 was sent to the lab and analysed, and was found to contain qq grammes of cannabis resin. At the lab, it was found also to contain a folded piece of paper with 44 mg of amphetamine sulphate. That was seen by neither officer, and they naturally never refer to it. This is the entire subject matter of count 3. in the circumstances there is a strong probability that the jury will acquit on count 3. the defence are bound to suggest that the lack of continuity enables the jury to draw the inference that the amphetamine may have been added to the tin, either by the police or by the lab, either by accident or design. In the circumstances it may be difficult for them to be sure about the reliability of other evidence.
S admitted that the substances found in the flat were hers. She knew what they were worth. She insisted that they were for her sole use. She gave an excuse for having the $300 (to buy a car) although she does not say why it was on the floor or why it was mixed up with cheques made out to L. she said that she buys and sells cars, but they are obviously of small value. She owes Barclays bank $700, plus rent of $33.75 per week, and obviously has no means by which to buy cannabis of the quantity found. At the same time, no one asked her how much she smokes herself or how she uses it or how she breaks down a block of 170 grammes or whether she had already used any of it or how long she expected it to last.
If the interview is not admitted, then the evidence against her is that $600 worth of cannabis was found in her flat along with $300 loose on the floor and two cheques which did not belong to her. None of the tools of the trade was found: no scales, no small plastic bags, no cling film, no knives with stains, nothing packaged. At best it can be suggested that she was about to go into the drugs business but had not yet bought the necessary kit, or that she was somehow a wholesaler herself. The Crown cannot point to any evidence that she has benefited from the proceeds of drug trafficking: apparently some Abbey national Building society books were seized in the flat, but the officers do not say so in their statements and I have seen copies of none of them, but in the interview it is said that the total credits amount to some $255.
Given the fact that the only evidence against S is what was found in the flat and the only evidence against L relates to whether or not he was the driver of the Mini, a joint trial seems inappropriate. I therefore advise that the indictment be severed.
Once the police have interviewed S, and assuming that S supports L’s alibi, any record of that interview should be sent to the defence. It seems unlikely that there would be any material in the possession of the prosecution which would assist the case of S as disclosed in her defence statement, but those instructing should ensure that the list of unused material is checked carefully.
In the meantime , I should be grateful if the following could be dealt with:
a)sufficient photocopies of aplan or relevant page of A-Z showing the route of the chase and including Milton Road.
b)sufficient photocopies of the insurance cover note, the envelope, the two cheques, and the Abbey National books.
c)Copies of the custody record must be served. I should also like a copy. The originals must be brought to court.
Dd) all the drugs and the money must be brought to court.
d) w must make a further statement relating to the money as set out above.
e) The alibi witness P should have been interviewed.
f) Full transcripts of the tape recorded interviews must be prepared and served on the defence. The transcripts and the tapes themselves must be brought to court.
Due to the time factor, it is essential that the CPS ensures that any memo has in fact been received and is being dealt with by the officer in the case.
1. WHAT is the quality of the evidence fo identification? Turnbull (I977) QB 224
At present it seems poor (but more information is required, some of whichcan be dealt with in the conference):
At night, in dark conditions
View in garden would have been the side/back of intruder
View would have been obstructed by laurel hedge
ID in garden ‘fleeting glimpse’? some of the time w is looking at his dog.
ID at bus stop – at a distance (find out how far)
M was only person in vicinity?
2. No identification parade. Breach of PACE Code of Practice D para 2.3 ?
Where an identification parade has not been held (and the failure to hold a parade is not justified by the exceptions to the rule laid out in 2.4, 2.6, etc) then there is a breach of the Code. See R v.Forbes (2001) 2 WLR 1. However, application under s.78 PACE 1984 to exclude the identification evidence is unlikely to be successful despite the breach of Code D: it is likely that the magistrates/Judge will find that the circumstances in which the street ID was obtained ( although in breach of Code D) were not such that the admission of the evidence would have an adverse effect on the fairness of the proceedings.
As far as the attempted robbery is concerned, there are substantial gaps in the evidence, which need to be filled before H can be properly advised. In particular, according to H’ proof of evidence, there appears to be an in-store video on which he is alleged to have appeared. His further instructions on this point need to be obtained, so that I can assess its likely evidential weight. Again, there is the failure to hold an identification parade, which means that, in the absence of an admissible video, the prosecution will find it difficult to prove that it was H who attempted the robbery.
Criminal Justice and Public Order Act 1994, s34- In deciding on M’s guilt such inferences as appear proper may be drawn from his silence.
I am concerned that the provenance of the piece of wood is not properly established. C describes finding the piece of wood, but then does not deal with what he did with it: it is not exhibited and he makes no mention of handing it over to any police officer, nor do either of the police officers, to whom S was handed over, make mention of it. However, a ‘wooden club’ appears in the interview, again without any linkage by way of transmission evidence. This is a significant gap which must be filled by the people concerned.
Having an offensive weapon in a public place contrary to section 1 of the Prevention of o
PARTICULARS OF OFFENCE
GARY SIMMONS, on the 1st April 2004, without lawful authority or reasonable excuse, had with him in a public place, namely Queen’s Avenue, London N10 an offensive weapon, namely a lock-knife.
. In Rotherham Magistrates’ Court, ex p Todd, Lord Justice Simon Brown said where the evidence is discovered in the course of an unlawful search is unlikely to render admission of the evidence unfair.
Thus, an accused will ordinarily have to point to some prejudice over and above the unlawfulness of the search before a court will exclude evidence obtained during an illegal search. See Khan, Sakkaravej and pamarapa (1997
under s.32 (4), Police and Criminal Evidence Act 1984, for evidence relating to the offence he had been arrested for and any other offences, had satisfied reasonable grounds to justify the search. It further can be justified as an appropriate search under s 1 PACE in establishing that Finn had reasonable grounds for suspecting that he will find stolen goods or prohibited articles
Where the search takes place in public, the constable may only require the arrested person to remove an outer coat, jacket or gloves, but he is authorized to search a person’s mouth (s. 32 (4)). Hats, including turbans, are exempt from this requirement.