Toole, R v [1997] EWCA Crim 2163 (2 September 1997)

LORD JUSTICE OTTON: In the Crown Court at Woolwich this appellant, Melanie Toole, was convicted of arson being reckless as to whether life was endangered. She was sentenced to five years' imprisonment. Her co-accused, Anthony Smith, was similarly convicted. Melanie Toole now appeals against conviction by leave of the single judge.

The case against her was that on the evening of 24th September 1995 she and her co-defendant set fire to their council flat, which comprised the ground and lower ground floors of a property situated in Cathnor Road W14. The defence was one of alibi. It was undisputed that the fire was deliberately set in her flat. The scene was examined by experts, who concluded that there were at least five, and possibly seven, seats to the fire and that the forensic evidence indicated an explosion, possibly caused by a build up of petrol vapour.

It was suggested by the Crown that the appellant had a motive for committing this offence. She became the council tenant of the premises in July 1995. She complained immediately to the housing officer that the flat was not fit to live in because its walls were damp and crumbling and that the windows were defective. Officials duly visited the property. They discovered that wallpaper had been striped off the wall in the living room and that there was a hole in the wall adjoining an air brick. They considered that the tenant had damaged the flat and no recommendations were made for repair. On 23rd September a brick was thrown in through a basement window of the flat. The following day the appellant went to see the officials again and asked for alternative accommodation.

Mrs Betty Booth also lives in Cathnor Road. On Saturday 23rd September, that is the same day on which the appellant had visited the local offices, she saw at about 11.15 pm her son and his girlfriend leaving after they had visited her. She stood at her front window and she noticed a small red car double parked with its back open. Her son had to drive round it. She had seen this car before. She saw the girl from No 57 sitting in the passenger seat. One of the twins (the co-defendant was one of a pair) whom she had seen before was putting things into the back of the car. The appellant said that she and Smith had left the car double parked at about 10.30, having loaded some washing, photographs and a television set into it. She was later to deny sitting in the passenger seat.

Mr Raymond Forde was perhaps the most important witness. He was sitting in the driver's seat of his car, which was parked on the wrong side of the road outside No 74. He heard breaking glass and saw an explosion. He then saw a girl running in the direction of his car. When she drew level with him on the opposite side of the road, he got out of his car and she stopped and looked at him. He described it as "a good stare". She was about 12 or 13 feet away from him. She then beckoned to a man who was walking in her direction. They then ran off towards Goodwin Road. He gave a description of her clothing and appearance and said that the light was fairly good. Four months after the fire he was able to pick out the appellant on an identification parade.

Miss Merline Felix was sitting in the front passenger seat of Mr Forde's jeep. She knew the appellant, having seen her in the flat with her baby over a period of some two months. She heard the explosion. She saw the young woman and a young man whom she recognised. She saw the woman beckon to the man in a similar fashion to that described by Mr Forde.

The prosecution evidence from the cinema's security video allegedly showed the appellant and her co-defendant going into the cinema to buy tickets at about 10.20 pm, leaving and then returning at 11.39 pm and going into screen 3. Five minutes later they left the cinema complex and did not return.

Twelve cameras were positioned in different places around the foyer, the ticket kiosk and the corridors of the cinema. A computer, called a 'multiplex', selected cameras at random for differing amounts of time from less than 1 to 17 seconds and recorded from the selected camera on to a video recorder. The recording was black and white. The time of the recording was superimposed on the recorded film.

The relevant period of 23rd to 24th September 1995 was studied by Detective Constable Walker at the police forensic laboratory on a large screen. As a result he made what was known as a compilation tape of the parts that he regarded as relevant. He purported to identify the defendants from the large screen having interviewed them, and, accordingly, he had a good picture in his mind of what they looked like.

The jury watched the video prepared by the officer on two occasions: first in silence, and secondly with a commentary by Detective Constable Walker, including his opinion as to whether the accused were shown on the video. He said that he identified them by facial features and not by their clothing.

The judge carried out his own calculation, showing that it was possible, on the basis of a sample of film shown to the jury, to leave a screen and make the journey to the exit without being filmed by cameras numbers 2 or 6, which were the ones placed in the foyer and near the ticket counter.

The appellant gave evidence. She said that she told Miss Nartey, the council official, that she was unhappy with the flat because the wall crumbled when she started to strip off the wallpaper. She denied saying to Miss Nartey that the flat was unfit to live in; she merely wanted it repaired to make it suitable for her accommodation. Since the end of July she had been trying to arrange a mutual exchange of flats with another council tenant. She had a potential exchange lined up, but the other person pulled out in about early September. However, at the time of the fire, she said, she had two other possibilities in mind.

She told the jury that on the evening in question she was collected from her mother's home in Lakeside Road by Smith at about 10 pm. They drove to the cinema at Kings Street and bought tickets for a film. They then drove to her flat to collect various things which they loaded into Smith's car. She denied that these were the possessions which she did not want damaged in the fire. They then left the car double parked and walked off on foot to the George public house in Hammersmith for a drink before going to the cinema in Kings Street. They arrived at the cinema between 11.25 and 11.35 pm and missed the first part of the main film. They left the film early, at about 1 am, and walked back to her mother's.

The appeal concerns rulings made by the judge in the course of the trial: first, a ruling on 10th July 1996 when the judge ruled against a submission on behalf of the appellant that the video evidence and the evidence of Detective Constable Walker of identification was inadmissible; and second, on 18th July when the judge ruled that evidence about other fires which were said to have occurred in Cathnor Road between 1990 to 1995 was irrelevant.

In this appeal Mr Laurence Kench, a solicitor/ advocate, who appeared at trial, advances three grounds. First, it is said that the judge was wrong to admit the evidence of the edited or compilation video film and the opinion evidence of Detective Constable Walker. Mr Kench acknowledges that in certain circumstances such evidence is admissible. He cited for our consideration the case of Clare and Peach [1995] 2 Cr App R 333.

In that case the appellants were football supporters who were seen on video with others as they arrived at a football ground. After the match the defendants went to the town centre where there were two public houses frequented by the football supporters. A fracas flared up between rival supporters which was recorded by video cameras. The prosecution alleged that the appellants were involved in the incident which amounted to violent disorder. At the trial the prosecution obtained leave to adduce evidence of a police officer who had studied the video films closely and analytically. The films from the football ground were of good quality, but those from the town centre required careful study, involving repeated examination in slow motion frame by frame. The officer identified the appellants on the video of the film as those committing acts of violence. The appellants were convicted of violent disorder and appealed on the ground that the officer's evidence was inadmissible since he could not be regarded as an 'expert witness' and was therefore in no better position than the jury to decide whether those committing violent acts on the film were the appellants.

The Court of Appeal, presided over by Lord Taylor CJ, dismissed the appeal and held that the police officer had acquired knowledge by lengthy and studious application to material which was itself admissible evidence; that to afford the jury the time and facilities to conduct similar research would be impracticable; and that, accordingly, it was legitimate to allow the officer to assist the jury as he did since he was open to cross-examination and the jury were free to accept or reject his assertions after proper direction and warnings.

However, Mr Kench, in a persuasive argument, seeks to distinguish that decision from the present case. He says, first of all, that Detective Constable Walker did not satisfy the relevant criteria to qualify as an ad hoc expert. Secondly, in the case cited the prosecution case was that a brief fracas flared up and there was a confused scene and what was actually done and who was doing it could only be discerned by close study. He submits that in the present case there was no such brief or confused scene: the film purported to show the two defendants entering and leaving the cinema. The exhibit was not the original film taken in the cinema but an edited or compiled version lasting some 8 minutes compiled from the original film over a 24-hour period. Moreover, the original 24-hour tapes were an incomplete record of the movements of people entering and leaving the cinema, and, by reason of the random selection by the computer, had gaps in the action of sufficient length for persons to enter and leave unobserved by the foyer cameras. Thus it is submitted that the original tape was not a satisfactory source as it was an incomplete record. The edited tape was no more than a device upon which to base Detective Constable Walker's opinion that two persons entering, purchasing tickets and leaving immediately were the defendants, that they never returned and that there were no images on the original tape which more closely resembled the defendants.

We have considered this submission with the greatest of care, but we have come to the conclusion that we cannot accede to Mr Kench's argument. The learned judge, having considered the previous decision in Clare and Peach , concluded that the video evidence was real evidence; that it was relevant to the issue of alibi and admissible. In giving his ruling, he said as follows:

"I am satisfied that Detective Constable Walker can be regarded as an expert ad hoc in giving evidence to the jury of who, in his view, the people going in and coming out of the cinema are at the times given on the video tape. He, in my view, is in a position to do that because he had a comparator in the sense. Before viewing this tape he had interviewed both defendants under caution and therefore saw them both on that occasion."

In the case of Clare and Peach the then Lord Chief Justice referred to an earlier decision of R v Howe (1982) 1 NZLR 618, a decision of the Court of Appeal of New Zealand. At page 337 he cited a helpful passage from the decision of that Court concerning the circumstances which occurred during a Springbok Rugby Tour of New Zealand where there was a demonstration which ended in violence. Various video tapes and photographs were taken. When the films were shown to the jury, a detective identified individuals accused by giving a commentary from the witness box. The detective had not personally known any of the appellants save one before the day of the match and he was not present when any of the incidents were recorded on film. However, he had viewed the edited version of the tapes many times and he was allowed both to describe what was being done at a particular time whilst the video was being played and to identify who was doing it. At page 627 of the judgment of the Court of Appeal there is the following passage:

"Here, the evidence was needed to make the tapes and film and even the still photographs more readily understandable. The action was complicated and confused. Important details could easily be missed without prolonged viewing or guidance from someone closely familiar with the material. Having viewed the pictures ourselves, we are satisfied that the commentary by Detective Parsons was legitimately required as an aid to the jury. Economy, convenience and despatch would commend the admission of such a commentary and we see no fundamental principle in the law of evidence which would be infringed. The original tapes, films and photographs had been properly proved and the identification made from them by Detective Parsons was no more secondary evidence than was any oral identification made from a photograph.

It was argued however, that Detective Parsons was not an expert. Whether a person is an expert in a particular field is not always easy to define. A witness need not embark on a course of scientific study to qualify as an expert; he may acquire his knowledge merely from experience; it is not necessary for him to acquire it professionally: Silverlock [1894] 2 QB 766, 771; Menzies [1982] 1 NZLR 40. There seems no reason in principle why a person who has seen tapes and the like as many times as Detective Parsons saw this material and has made a study of them and compared them with other still photographs with the purpose of reliably identifying individuals, should not be regarded as sufficiently expert ad hoc to give identification evidence."

"The phrase 'expert ad hoc' seeks to put witnesses like Detective Parsons and PC Fitzpatrick into the traditional category of those qualified to give opinion evidence. Whether or not the tag is appropriate, we are clearly of the view that PC Fitzpatrick had 'special knowledge that the Court did not possess', to quote the Canadian judgment cited above. PC Fitzpatrick had acquired the knowledge by lengthy and studious application to material which was itself admissible evidence. To afford the jury the time and facilities to conduct the same research would be utterly impracticable. Accordingly, it was in our judgment legitimate to allow the officer to assist the jury by pointing to what he asserted was happening in the crowded scenes on the film. He was open to cross-examination, and the jury, after proper direction and warnings, were free either to accept or reject his assertions."

This Court, having viewed the video tape ourselves and applying the above dicta, is satisfied that Detective Constable Walker did satisfy the criteria for an "expert ad hoc", or, perhaps to be more precise, by virtue of his prolonged study of the 24-hour multiplex tape he had acquired "a special knowledge" of the movements within the cinema foyer on the evening in question which "the court did not possess". The commentary by the officer was legitimately required as an aid to the jury. To have offered this jury the time and facilities to conduct the same exercise with the 24-hour multiplex master film would have been utterly impracticable. It was thus legitimate for the officer to assist the jury by pointing out what he asserted happened in the foyer and to advance his opinion that the persons shown arriving and leaving the foyer were the defendants. He had had the benefit of interviewing both defendants for a period of about half an hour before examining the film. Accordingly, we are satisfied that the judge did not err in principle in admitting this evidence. We agree with his conclusion that the evidence was real evidence; that it was relevant and admissible.

We have also considered whether the learned judge should have exercised his discretion to exclude the evidence. We are satisfied that the judge did not fall into error in this regard. From our observations of the film, the quality of the video, although not perfect, was of sufficient quality for the jury to assess whether or not they could safely accept the police officer's assertion that he recognised the defendants. Although there were gaps of 17 seconds or so, it is in our view unrealistic to suppose that both defendants could have been missed re-entering and leaving the cinema during those few seconds.

In considering the exercise of the judge's discretion, we consider it of particular importance that the defendants were afforded the opportunity to examine the original tape and to require other highlights or sequences from the multiplex master film to be shown to the jury. They did not do so either before the application to adduce the evidence was made or even after the judge's ruling. Thus the exercise of the judge's discretion cannot be faulted.

The judge reminded the jury of the evidence with considerable clarity and care; in particular he directed them on the need for caution and that it was for the jury to decide whether to accept or reject the officer's opinion and as to the quality of the film itself. At page 57 of the summing-up he said as follows:

"Now I must give you some legal directions about this. First, when Detective Constable Walker claims that these are the defendants on the film, that is only his opinion; the matter is one for you to decide. You are free to accept or reject what he says. He has been allowed to give his opinion because he had previously seen the two defendants at close quarters in interview and elsewhere in the police station on 24th September and because he had studied the video film in the laboratory. But you must make up your minds about it, accepting or rejecting his opinion as you will. Secondly, you are being asked in effect to carry out your own identification exercise and therefore the need for special caution which I mentioned earlier applies with full force here. Consider the quality of the film, how well or how badly it shows the features of the two people and for how long, consider the lighting conditions and so on. Guard always against the danger of making a ghastly mistake. Consider whether in giving his opinion Detective Constable Walker had enough evidence of facial features to go on. He says he was sure of it, by seeing the facial features as they bought tickets at the kiosk and that was on camera 1."

"Now if you are sure that it is them on those shots at the booking counter, you are also entitled to take into account what they were wearing then in deciding whether the succeeding clips in the compilation are them too. If having exercised the special caution to which I have referred you, you are sure it is them and are sure in particular that it is them coming out at 23.44, then that effectively destroys the defendants' alibi, does it not? You are also entitled to ask yourself, 'Well, if that is not them on the compilation then where are they on the video? Where are they coming in to buy their tickets between 10.00 and 10.30? Where are they coming back in for the performance between 11.30 and 11.40, and where are they going out again as they claim about 1 o'clock?' Now you must exercise both care and common sense in this...."

Mr Kench advanced a second line of argument that in asking him in the presence of the jury whether he had had the opportunity to view the whole of the original tape there was a danger that the jury may have perceived a shift in the burden of proof from the Crown; that the judge fell into error by asking this question in the presence of the jury and he should have asked the jury to retire and that this was particularly relevant in the light of the detailed cross-examination of Detective Constable Walker concerning the gaps in the tape.

In the course of argument Mr Kench appeared to lose some enthusiasm for this particular ground of appeal. Suffice it to say, we cannot see that any possible criticism can be levelled against the judge in asking the question that he did in the presence of the jury. There is no substance in that ground.

A subsidiary ground advanced relates to the learned judge's refusal to allow the admission of evidence of the large number of fires, it is said, that took place in Cathnor Road in the preceding years. The prosecution's case was that the appellant had a motive for setting fire to her own flat and destroying a large amount of her own property: she wanted to be rehoused by the local housing authority. This was the only motive suggested, Mr Kench submits, and if accepted by the jury would have made the defendant the only person who had a motive for so doing. However, there was evidence available from the fire officer which showed that there had been fourteen fires in the road since 1990 and evidence was adduced to show that there was a remand centre in the road parallel. The appellant's case was that the jury could assess for themselves from their own knowledge and experience whether the number of fires reported to the fire authorities was unusually high. The value of this evidence would have been to demonstrate to the jury the possibility of the existence of another unknown perpetrator with an unknown motive.

"That fourteen or fifteen other fires have occurred in Cathnor Road from 1990 to 1995 in not in my judgment probative of any issue in the case: it would be irrelevant and inadmissible. Even if the causes of any of those fires were suspected as being malicious by the fire service, or the police, or both, that again would not in my judgment be probative of any issue in this case including, of course, the issue as to whether or not it was these defendants, or either of them, who set fire to No 57A on the night of 23rd/24th September last year. I can see no basis, having listened to Mr Kench and Mr Grayson, for the defendants on which it can legitimately be said to be probative of any issue."

We agree with the learned judge. This was evidence which was wholly extraneous. It was irrelevant to any of the issues which the jury had to consider and we cannot see any error in principle in the judge ruling as he did. Accordingly, there is no substance in that ground. We are satisfied that there is no basis for considering this conviction to be in any manner unsafe. The appeal is therefore dismissed.

England and Wales Court of Appeal (Criminal Division) Decisions

MELANIE TOOLE, R v. [1997] EWCA Crim 2163 (2nd September, 1997)

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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Toole, R v [1997] EWCA Crim 2163 (2 September 1997) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1997/2163.html Cite as: [1997] EWCA Crim 2163