BAILII Citation Number: [2000] EWCA Crim 3535
Case No: 99/6732/Z4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2

Date: Thursday 22nd June 2000

B E F O R E :

LORD JUSTICE OTTON

MR JUSTICE BRIAN SMEDLEY

and

HIS HONOUR JUDGE RIVLIN QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
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R E G I N A

‑ v ‑

MAAME BARBARA OSEI‑BONSU

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HG
Tel No: 020 7421 4040   Fax No: 020 7831 8838
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MS C CHESTERS appeared on behalf of the APPLICANT
MR D JEREMY appeared on behalf of the CROWN

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JUDGMENT

1.	LORD JUSTICE OTTON:  On 11th October 1999 at the Crown Court at Kingston upon Thames before Mr Recorder Bean QC the applicant, Maame Barbara Osei‑Bonsu, was convicted of one count of assault occasioning actual bodily harm on Christine Galbraith. She was acquitted on count 2 of a similar offence against Karen Jacques. She renews her application for leave to appeal against conviction following refusal by the single judge.
2.	We propose to give leave and to treat the application as the hearing of the appeal.
3.	The facts of the case are quite complex. On 17th July all the parties concerned were at an institution known as the All Sewn Up Centre. The appellant and Mrs Galbraith had met earlier in the day in a supermarket. There had been some form of unpleasantness or altercation between them. There were two incidents at the centre, separated by the appellant going outside into the garden, before being brought back into the building. Mrs Galbraith gave evidence that, as they queued for a glass of wine, the appellant approached and asked her whether she had been talking about her. The appellant then went to talk to the Lady Mayoress and referred to Mrs Galbraith as “that woman’s a lunatic”. Mrs Galbraith then recognised the appellant from  Sainsbury’s earlier that day. She went up to the appellant and asked her what she had said, whereupon it was said the appellant threw her wine in Mrs Galbraith’s face. Mrs Galbraith reacted by throwing her wine over the appellant. She then turned around and was hit on the side of the face by the appellant. She did not realise it at the time, but the appellant had taken off her shoe and hit the side of her face. She did not retaliate. The appellant was taken away and Mrs Galbraith asked for some ice for her face.
4.	There was other evidence from Mrs Jacques (who was the subject matter of the allegation in count 2) who gave a description of what occurred to her. However, it is obvious from the jury’s verdict they were not satisfied so that they were that the appellant had committed that offence.
5.	Also present was a Mrs Nicholls, the course tutor. She did not see the first incident, but she did take care of the appellant after the incident when her face was still wet from the wine incident.
6.	Another witness was called, Henrietta Kennedy, who was a friend of Mrs Galbraith. She gave evidence of what she heard pass between the Lady Mayoress and the appellant. She described the wine throwing. She saw a fight develop and the appellant holding up a shoe. She tried to comfort Mrs Galbraith. The incident continued in some acrimony and unpleasantness.
7.	Two police officers were called to the scene. One was a PC Davis, who spoke to Mrs Nicholls and to the complainants. He made notes in his pocketbook which, in circumstances which will emerge hereafter, he had with him at the scene. The other officer was Police Constable Blackall. He was the officer in the case and the arresting officer. He saw Mrs Jacques. He observed the bruising and reddening around the side of Mrs Galbraith’s face. He said that he obtained the details of four witnesses. No one else came forward. He thought that Miss Kennedy had left by the time the police arrived. They got her address later from Mrs Nicholls. The police officer, however, did not produce his notebook. Therefore his recollection of how many witnesses were there and their identity were not to be established from a contemporaneous record.
8.	The appellant, after she had been arrested, was interviewed. She admitted slapping Mrs Galbraith on the face. She maintained that she was quite shocked to be arrested because she (Mrs Osei‑Bonsu) was the victim and not the aggressor. She could not say how the two victims had sustained their injuries. There were many women involved and anything could have happened.
9.	Not surprisingly at the close of the prosecution case, defence counsel, Miss Chesters, sought to raise a point of abuse of process. It arose in this way. Before the trial the defence solicitors wrote to the Crown requesting, among other things, the names and addresses of any witnesses on whom the Crown did not intend to rely. No details were supplied, and the defence assumed that all relevant documents had been involved and that there was no such detail.
10.	The defence solicitors do not appear to have had the courtesy of a proper reply to their courteous letters of request. Counsel contended that, from the evidence of the police officers, it had become abundantly clear that the officer, the police as a whole (and indeed the Crown Prosecution Service) had not dealt with the defence request. The learned Recorder took the point and ordered that the notebooks of the arresting officers were to be brought to court on the following day.
11.	On the following day the notebooks were not forthcoming. Somebody must have told prosecuting counsel that it was not practicable to retrieve the notebooks because they were archived or in storage and therefore not available some year after the incident had occurred.
12.	Miss Chesters contended that the combined effect of the non‑disclosure of the computer‑aided dispatch messages (known as CADMs) and the police officers’ notebooks had denied the appellant a fair trial, guaranteed by Article 6 of the European Convention on Human Rights. The judge was asked to find that there had been an abuse of process, to discharge the jury and order a retrial, whereupon these defects could be addressed. The learned Recorder refused the application. He gave as the principal ground for his decision was that the application was, as he put it, entirely speculative, and there was no good reason to suppose that the notebooks in storage would weaken the prosecution case or assist the defence. Pausing there, we have today seen the notebook of Police Constable Davis. It is abundantly clear that, if the notebook had been available, the judge would not have expressed himself in the manner that he did that the contents were entirely speculative. There was material in the notebook which was of considerable importance to the defence.
13.	Returning to the trial, the appellant gave evidence. She described how Mrs Galbraith pushed her out of the way and grabbed some of the items on the reduced price food stand. This precipitated renewed  hostility between the two ladies. However, there was a conversation between herself and the Lady Mayoress which provoked some sarcasm from Mrs Galbraith, who adopted a confrontational attitude towards her. She described how wine was thrown at her. Mrs Galbraith threw wine back at the appellant. She took off her shoe, but she could not remember whether it was during that incident or the second one that her shoe came off. There was a scuffle and the whole thing deteriorated into a most unseemly melee.
14.	On her behalf two lay witnesses were called, a Mrs Cook and a Mrs Crutchlow. Mrs Cook was the manager of the project and said that the appellant was a friend of hers. She described seeing the appellant in a distressed state with her face wet with wine. She did not hear or see anything memorable and she certainly did not see the appellant strike Mrs Galbraith with her shoe. She took the appellant into the garden and said that she had been assaulted and asked her (Mrs Cook) to call the police. She arranged for someone else to look after her and called the police.
15.	Mrs Crutchlow said that a black lady came rushing towards them. When she turned round she saw that the appellant was wet with wine. She did not see what was happening, but this lady was very angry and a white lady  was standing up straight, neither excited nor smiling as if she was satisfied with something that had happened. By inference the white lady who was looking satisfied was the alleged victim, Mrs Galbraith.
16.	A Dr Steadman, a consultant psychiatrist, was called, but that does not affect the prosecution of this appeal.
17.	In the event the jury convicted on count 1 and acquitted on count 2. Miss Chesters, prepared the appeal on a pro bono basis, but she was so interested and disturbed by the way that the prosecution had failed to comply with the request of her solicitors for the disclosure of relevant information that the solicitors conducted further correspondence with the CPS requesting the very evidence which they had failed to produce at the Crown Court. It is a matter of considerable regret, and indeed we are very disturbed by the fact, that the CPS, for reasons best known to themselves, chose not to enter into that correspondence. It is quite clear that little or nothing was done to help the defence in the prosecution of this appeal. We will say from the outset that the information that was requested was an entirely proper request and that the information was clearly discloseable information, which, in the normal course of events, the prosecution would have recognised it was  their duty to disclose.
18.	Miss Chesters further submits that the prosecution’s failure to comply with their obligations of disclosure under the Criminal Procedure Investigations Act resulted in a material non‑disclosure with the result that the appellant did not have a fair trial. This related to the computer‑aided dispatch messages. Counsel maintained that there was material contained in the CADMs which could have impacted upon the credibility of the prosecution witnesses, in particular as to who had complained to the police and had made the first contact with the police. Clearly if it was Mrs Galbraith, then that would give some credence to her story that she was the victim. On the other hand, if the complaint was made by or on behalf of the appellant herself, this would not merely impact upon the credibility of the complainant, but also give support the appellant’s assertion that she herself was the victim of the attack by Mrs Galbraith. Hence the need to establish this sequence of events which could only be done if the appropriate records had been disclosed.
19.	She further contends that the prosecution failed to verify whether the defence were provided with the names and addresses of possible witnesses. The failure of the prosecution to inspect documents in which these  names and addresses would be recorded presented a real risk that the trial was unfair and amounted to a denial of natural justice. She recognises that the learned Recorder had a discretion in these matters, but she says the full picture was not made available to the learned Recorder, who, if he had, he might well have come to a different conclusion. After PC Davis had given his evidence and indeed PC Blackall. Neither of their notebooks was produced, despite the judge’s request that they should be. That part of the judge’s ruling seems just not to been upon acted at all.
20.	PC Davis gave evidence today to the effect that he was the officer who attended the scene, and, as one would expect, he made a record there and then in his pocketbook. He has taken us through the various entries. He described how he arrived on the day in question. He spoke first to Mrs Karen Jacques. He took her address and telephone number. He noted the injury on the left side of her face. He also spoke to Mrs Galbraith, from whom he took her address and telephone number. He noted some injury to the side of the face. Immediately after those two crucial entries, because they were the victims upon whose evidence the charges were brought, appears as follows ‑ on one line: “Pearl 0171 771 2838”. Immediately under the word  “Pearl” is the name “Woode. Off 12.30 am.” That entry, the officer acknowledged, probably is the identity of a witness to this event who gave her particulars to that officer. That lady did not give evidence. Her existence was not disclosed to the defence, and, to put it bluntly, her presence and her existence have only come to light this afternoon in this Court. Certainly it was not disclosed in answer to the requests made by the defence either before the trial began or, following the conviction, during the prosecution preparation of this appeal.
21.	We take a very serious view of that, particularly as the police officer told us that he found this document on his desk when he went back to the station having given evidence in court. He did not hand it over to anyone in authority and it has remained in his possession since that time. This was in complete contrast to what the judge was told on the Monday morning when he wanted to know what was the position. There seems to be no excuse or proper explanation as to how that situation occurred.
22.	More disturbing is that the judge ordered the production of all notebooks, which would have included that of Police Constable Blackall. Police Constable Blackall has now gone on leave and is unable to attend  court today, this is in spite of this Court last week ordering that these books be produced and that the officers should attend. It may well be that it was too late to stop Police Constable Blackall going on his leave or he was already on leave and he could not be traced and recalled. There is no excuse whatsoever for not producing his notebook. If he was the officer who dealt with the Osei‑Bonsu witnesses, which is likely as he was the officer who was arresting Mrs Osei‑Bonsu, then it may well be ‑‑ and we do not regard this as extremely speculative ‑‑ we think that there is a distinct possibility that in his notebook there will exist the names, addresses and telephone numbers of other witnesses who might have been of assistance to the defence.
23.	In these circumstances we have to consider whether this conviction is still safe. We have been taken through a great deal of authority on this matter. We are obliged to say that we consider that the facts as disclosed do amount to an abuse of process the defendant has not had a fair trial.
24.	It is well established that the defence is entitled to all the material facts and matters and documents material to the case and which may be of importance to the defence. It is abundantly clear that  at some stage the documents requested or the contents of them or the information contained in those documents could and, indeed, should have been extracted and made available to the defence. We are told today that there was a phone call made to the police station which did originate from or on behalf of the appellant which rather substantiates exactly the point that was sought to be made at trial and which it was impossible to make in the absence of those documents.
25.	Miss Chesters when referring us to the domestic law cited, for example, in R v Birmingham [1992] Crim LR 117. The position is conveniently summarised in the current edition of Archbold 4‑63b at 323 as follows:
“... the failure of the police to disclose to the Crown Prosecution Service or the defence (despite specific requests for unused information) a video film which showed aspects of an incident that formed the subject‑matter of the case, and the disappearance before trial of that film, resulted in a stay of the proceedings.” 
26.	She also referred to parts of the Codes of Practice and it is clear that there were breaches of those obligations.
27.	Finally, she invokes Article 6 of the European Convention on Human Rights. This is not yet part of our domestic law but will be so in October. The Lord Chief Justice has made it clear in this Court that it is not inappropriate for this Court to look at what is ahead of  us and to have regard to it. In Archbold at 16‑83 there is a reference to the case of Jespers v Belgium, where the Commission, it is to be noted not the ECHJ, the European Court of Human Rights, held that:
“... ‘equality of arms’ principle imposes on prosecuting and investigating authorities an obligation to disclose any material in their possession, or to which they could gain access, the accused in exonerating himself or in obtaining a reduction in sentence. The principle extends to material which might undermine the credibility of a prosecution witness. Non disclosure of evidence relevant to credibility may also raise an issue under Article 6(3)(d) [to which we do not need to refer].” 
28.	It is to be noted that in the case of Edwards v United Kingdom undisclosed evidence was discovered in time for the hearing of the appeal. The Court of Appeal was able to assess its impact on the safety of the conviction. This assessment was held to have rectified the shortcomings in the original trial.
29.	We conclude that Article 6 does not add or extend the situation which is covered clearly by domestic, including the criminal Code of Practice. We are satisfied that the domestic law is in line with the jurisprudence with the European Commission of Human Rights. Accordingly, although we should have regard to it, but decide this case on the basis of the domestic law as it now is.
30.	We have come to the conclusion that the conduct of  the Crown’s case here through the CPS and the police has been quite deplorable. They did not give the defence a fair crack of the whip before the trial by not taking any or appropriate action on the civil request advanced by the defence team. That should have been done and we are very disturbed that the attitude of the prosecution seems to have been so lamentably slack on that occasion.
31.	The situation is compounded by the utter discourtesy of failing to respond to the perfectly proper request to explore the position for the purposes of the appeal. No doubt Miss Chesters, with the assiduous way in which she has prepared this appeal, was aware of what had happened in Edwards v United Kingdom; and she legitimately considered that it was still possible for this information to be disclosed and to be made available to this Court and that we might consider it material to the outcome of the appeal. It should have been perfectly obvious to the prosecution that that was the situation. Where the responsibility for this inactivity lies is not for this Court to determine, but it clearly lies either with the police or with the CPS or, we suspect, with both: the lack of cooperation and action between the appropriate persons in those two public institutions.
32.	In those circumstances, we have come to the conclusion that the submission made by Miss Chesters is well founded. The conduct here is so bad that we feel that it would be quite wrong to allow this conviction to stand. We are satisfied, in our own minds, that it would be unsafe to let the conviction stand. There is at least one witness who, if interviewed, might have thrown light on the situation to the advantage of the defence. We have a lurking suspicion that there are other names in the notebook of Police Constable Blackall. He said in evidence at trial that he obtained the details of four witnesses but no one else came forward. Who those four witnesses were we do not know. We know that one of them was not Miss Kennedy because she had left by the time the police arrived and they got her address later from Mrs Nicholls.
33.	At the close of submissions or towards the end of the close of submissions, Mr Jeremy, on behalf of the Crown (who, we hasten to add, was not counsel appearing for the prosecution before the Crown Court) applied for a further adjournment to allow these matters to be investigated. We declined that request. The matter was listed for 10.30 this morning. When the case was called on Mr Jeremy appeared without a solicitor, without any of the officers and with a mobile telephone, on which he  was personally conducting a conversation with the CPS as to what was happening. With that background, we could not possibly have acceded to the further request at 2.30 this afternoon, after we had adjourned the case to take further instructions and to secure the attendance of Police Constable Davis. This case demands finality. We allow this appeal. The conviction is quashed.
34.	LORD JUSTICE OTTON:  Are there any applications?
35.	MS CHESTERS:  My Lord, I would ask for a defendant’s costs order for reasonable travel expenses to all appearances at the lower court.
36.	LORD JUSTICE OTTON:  You have a legal aid certificate?
37.	MS CHESTERS:  My Lord, yes, but it would not refund the appellant the expense she has gone through in this case.
38.	LORD JUSTICE OTTON:Right. She came on the last occasion, did she?
39.	MS CHESTERS:  She did. Fortunately, although she had great mental health difficulties at the time of this case, she has progressed very well and is taking access exams today for university.
40.	LORD JUSTICE OTTON:  Very well.
41.	(The Bench conferred.)
42.	LORD JUSTICE OTTON:  Yes, there will be a defendant’s costs order. Thank you for your assistance, not least yours Mr Jeremy.