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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Newman v Commissioner of the Police of the Metropolis [2009] EWHC 1642 (Admin) (25 March 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/1642.html Cite as: [2009] EWHC 1642 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		25 March 2009

1. .1. LORD JUSTICE RICHARDS: This is an appeal by way of case stated in respect of rulings made by the Highbury Corner Magistrates' Court on 27 June 2008, in the course of an application by the Metropolitan Police Commissioner for a football banning order under section 14B of the Football Spectators Act 1989, as amended, against the appellant and a number of other individuals. An application may be made under section 14B for a banning order in respect of persons who have "at any time caused or contributed to any violence or disorder in the United Kingdom or elsewhere".

The proceedings before the Justices

2. The ruling under challenge related to two items of evidence that the Commissioner sought to adduce in support of the application, namely (i) a witness statement by a police officer, a PC Davies, and (ii) compilation disc of CCTV footage.
3. The witness statement of PC Davies purported to present a 'profile' of the appellant, based on information gathered from intelligence documents, informants and police spotters, relating to some thirteen occasions when, as was alleged, he had been seen to be close to, or involved in, violence or disorder or in the presence of persons known to be 'risk supporters' and associated in such violence or disorder. By way of example, the first occasion referred to is described in these terms in the statement: "On 05.11.2006, Arsenal played away at West Ham. Pre and post match, Jack Newman was seen in company with the Arsenal risk group and first identified by the police." There was specific disclosure of underlying material relating to two of the incidents referred to in the statements, but not in relation to the other eleven.
4. The compilation disc of CCTV footage was prepared by a different officer, PC Harrison, but it was covered by a second witness statement of PC Davies. It consisted of short clips of a total length of about 5 minutes, showing various incidents in which the appellant, as was alleged, was seen to be involved in or contributing to violence or disorder. The identification of the appellant in the clips was done by PC Davies using his own knowledge and also the profile already mentioned. The justices did not look at the compilation before making their ruling.
5. The rival submissions made to the justices in respect of the evidence in question were, in summary, as follows.
6. The submission on behalf of the appellant was that it would be unfair to admit the first witness statement of PC Davies into evidence, in the absence of disclosure of the disclosure of the material on which it was based. Without disclosure he would be unable to challenge properly the contents of the statement. For example, if he denied presence and wished to challenge the allegations made on a particular date, PC Davies would be in no position to respond properly to cross examination. Whilst comment could be made and explanations provided if and when the appellant gave evidence, this did not rectify the fundamental inability to challenge the evidence relied upon against him.
7. As to the compilation disc, the submission of the appellant was that all the footage making up the compilation disc should be disclosed, as there might be other parts of the footage which showed surrounding events leading to actions by the appellant or putting his actions into context. It was submitted to be fundamentally unfair to adduce such a compilation without disclosure of the source material: the compilation amounted to cherry picking so as to present the best evidence to support the application against him.
8. For the Commissioner, it was submitted that the appellant was not entitled to the intelligence reports, since they would otherwise be covered by public interest immunity and their disclosure would severely impact their value as intelligence and would frustrate the legislative intention by placing an onerous burden on the Commissioner. The appellant could cross-examine PC Davies. In addition, a number of other police officers were in attendance to give evidence of matters going towards the appellant's profile and the appellant's conduct during some of the incidents shown on the compilation disc, and those officers were in a position to give direct first hand evidence in relation to some of those incidents. The appellant was not deprived of his opportunity to challenge the evidence given in relation to those matters. The fact that the original footage or source information may have shown that he was not engaged in violent disorder at other times, or was not in the company of risk supporters at other times, did not diminish the ability of the court to place appropriate weight on the evidence actually relied on, in the context of the evidence as a whole, in order to determine whether the Commissioner had established the statutory criteria to the required standard. It was said that the original information and footage did not undermine the Commissioner's case or assist the appellant's case. The appellant had not raised any issue as to identification, whether in relation to profile or the compilation disc, which might, had it been raised, have called for further disclosure of the underlying information or footage.
10. The justices ruled in favour of admitting the evidence, for reasons given in paragraph 12 of the case stated as follows:

"Neither the appellant nor the respondent was able to draw our attention to any statutory or common law authority to assist in determining the relevant principles of disclosure in the civil proceedings before this Magistrates' Court, and in the absence of any legislation or rulings we decided that the evidence was admissible and that there could be no unfairness to the appellant in admitting it, because:

(a) we were able to give appropriate weight to statements made as a compilation of hearsay intelligence documents; and the appellant would have an opportunity to cross examine the police witnesses, who attend today, on this evidence.

(b) regarding the CCTV, that although the appellant would not have had the opportunity to view the footage in its entirety, that he would have the opportunity to provide a context to the footage through giving evidence and cross examining the witnesses, that we would then decide what weight to give to this evidence."

11. Having so ruled, the justices adjourned the case to enable their ruling to be challenged by these proceedings. They posed the following questions for the opinion of the High Court:

"(1) Were we correct in admitting the compilation video evidence in the absence of the available full video footage being disclosed to the defence?

(2) Were we correct to admit a compilation statement in the absence of the intelligence reports, from which the statement was compiled, being made available to the defence?

(3) Were we correct to conclude that there are no directly applicable disclosure requirements applicable to the respondent under section 14B of the Football Spectators Act 1989 (deciding the matter as we did on general principles of fairness in all the circumstances)?"

Legislative framework

12. It is helpful to set out first both section 14B and section 14C of the 1989 Act:

"14B.(1) An application for a banning order in respect of any person may be made by the chief officer of police for the area in which the person resides or appears to reside, if it appears to the officer that the condition in subsection (2) below is met.

(2) That condition is that the respondent has at any time caused or contributed to any violence or disorder in the United Kingdom or elsewhere.

(3) The application is to be made by complaint to a magistrates' court.

(4) If:

(a) it is proved on the application that the condition in subsection (2) above is met, and

(b) the court is satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder at or in connection with any regulated football matches,

the court must make a banning order in respect of the respondent.

14C.(1) In this Part, "violence" means violence against persons or property and includes threatening violence and doing anything which endangers the life of any person.

(2) In this Part, "disorder" includes -

(a) stirring up hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins, or against an individual as a member of such a group;

(b) using threatening, abusive or insulting words or behaviour or disorderly behaviour;

(c) displaying any writing or other thing which is threatening, abusive or insulting.

(3) In this Part, "violence" and "disorder" are not limited to violence or disorder in connection with football.

(4) The magistrates' court may take into account the following matters (among others), so far as they consider it appropriate to do so, in determining whether to make an order under section 14B above -

(a) any decision of a court or a tribunal outside the United Kingdom;

(b) deportation or exclusion from a country outside the United Kingdom;

(c) removal or exclusion from premises used for playing football matches, whether in the United Kingdom or elsewhere;

(d) conduct recorded on video or by any other means.

(5) In determining whether to make such an order -

(a) the magistrates' court may not take into account anything done by the respondent before the beginning of the period of ten years ending with the application under section 14B(1) above, except circumstances ancillary to a conviction;

(b) before taking into account any conviction for a relevant offence, where a court made a statement under section 14A(3) above or section 15(2A) below or section 30(3) of the Public Order Act 1986, the magistrates' court must consider the reasons given in the statement,

and in this subsection "circumstances ancillary to a conviction" has the same meaning as it has for the purposes of section 4 of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation).

(6) Subsection (5) does not prejudice anything in the Rehabilitation of Offenders Act 1974."

13. The legislation was the subject of detailed consideration in Gough v Chief Constable of the Derbyshire Constabulary, both in the Divisional Court [2002] QB 459 and in the Court of Appeal [2002] QB 1213. The case was concerned essentially with the compatibility of the legislation with the European Convention on Human Rights, but the judgment did touch on a number of points relevant to the present case. In the Court of Appeal, at paragraph 29 of the judgment of the court, Lord Phillips MR referred to the kind of intelligence information which is in issue in the present case, stating:

"The tactics of the police have had to respond to this developing phenomenon. There is a football intelligence system co-ordinated by NCIS. Each club has a Football Intelligence Officer, who is known to the prominents as they are known to him. In relation to each match ... information is collected by the police 'spotters' who watch the prominents. The information is collated in an information/intelligence report. The profiles are prepared in reliance on the contents of such reports, and consist in short notes, each giving an outline description of the particular prominent's involvement in actual or threatened trouble in relation to any given match."

14. At paragraphs 89 ff the Court held that proceedings under section 14B are civil in character and that, whilst the standard of proof is the civil standard, it falls to be applied in a way that is in practice hard to distinguish from the criminal standard. In paragraph 91 it was said that this is true in relation to the requirement in section 14B(4)(a) that the respondent has caused or contributed to violence or disorder. The judgment continued in paragraphs 92 and 93 as follows:

"The same is true of the next requirement, that imposed by section 14B(4)(b), although this is less easily derived from the language of the statute. The court must be "satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder at, or in connection with any regulated football matches". In practice, the "reasonable grounds" will almost inevitably consist of evidence of past conduct. That conduct must be such as to make it reasonable to conclude that if the respondent is not made subject to a banning order he is likely to contribute to football violence or disorder in the future. The past conduct may or may not consist of or include the causing or contributing to violence or disorder that has to be proved under 14B(4)(a), for that violence or disorder is not required to be football related. It must, however, be proved to the same strict standard of proof. Furthermore, it must be conduct that gives rise to the likelihood that, if the respondent is not banned from attending prescribed football matches, he will attend such matches, or the environs of them, and take part in violence or disorder.

These matters are not readily susceptible of proof. We can well understand the practice that is evidenced by this case of using a football intelligence service to build up profiles of "football prominents". Such a practice may well be the only way of assembling evidence sufficiently cogent to satisfy the requirements of section 14B(4)(b). Those requirements, if properly applied in the manner described above, will provide a satisfactory threshold for the making of a banning order. The banning order, in its turn, will be a satisfactory basis for the conclusion that the individual subject to it should not be permitted to go to prescribed overseas matches."

15. It is apparent from paragraph 20 of the judgment of the Divisional Court in Gough that there was no challenge to the admissibility of the profile evidence relied on in that case but there was specific challenge to certain of the incidents described in the profile evidence. At paragraphs 101 and 102 of the judgment of the Court of Appeal, one sees the profile evidence being relied on by the court in this way:

"... In any event we are in no doubt that the "profile" of each appellant would have justified the making of a banning order had that strict standard been applied. In each case the cumulative effect of the individual observations points unequivocally to the appellant being one of the Derby Country football "prominents."

Mr Thompson complained that the appellants had not had the opportunity of cross-examining those who prepared the profiles. Mr Pannick riposted that they had not sought to do so. Had they given notice that they wished to cross-examine, the witnesses could have been made available. We do not need to consider the accuracy of that last contention, nor are we in a position to do so. Cross-examination would have been likely to be an arid exercise. The witnesses responsible for preparing profiles could not have been expected to retain a clear recollection of the individual events that they had recorded. The appellants gave evidence challenging some of the inferences that the Chief Constable suggested should have been drawn from the evidence. This seems to us to have been the sensible way to challenge the profiles. It was much more likely to be effective than cross-examination. It placed the judge in a position to form a reliable conclusion about whether or not the profiles were accurate. In the event the judge was not impressed by the appellants' evidence."

16. In McCann v Crown Court at Manchester [2003] 1 AC 787, the House of Lords was concerned with the legislative provisions governing the making of anti-social behaviour orders, again a civil rather than criminal procedure, and one having certain parallels with the making of football banning orders. Their Lordships held in that context that hearsay evidence, even of anonymous complaints, could be admitted in such proceedings pursuant to the Civil Evidence Act 1995 and the rules relating to the admission of hearsay evidence in civil proceedings in the magistrates' court, though the weight of such evidence would depend on the particular circumstances: see especially paragraphs 35-36 per Lord Steyne, and paragraphs 112 -113 per Lord Hutton.
17. Our attention has also been drawn to a decision of the Divisional Court in relation to hearsay evidence and disclosure in the context of closure orders pursuant to section 2 of the Anti-social Behaviour Act 2003: R (Cleary) v Highbury Corner Magistrates' Court [2007] 1 WLR 1272. At paragraph 22, May LJ referred to the legislative intention that closure orders should be dealt with speedily. In that context, it was obviously important that the police provide affected persons with all the information that they should fairly have, in sufficient time for the hearing to be completed within the period contemplated. In paragraph 23 he referred to fairness requiring that the police normally serve written evidence. At paragraphs 27 ff he dealt with the admissibility of hearsay evidence under the Civil Evidence Act 1995 and the Magistrates' Court (Hearsay Evidence in Civil Proceedings) Rules 1999, the evidence in question in that case comprising information from anonymous sources about drug dealing. He said at paragraph 28 that "to adduce, as hearsay, evidence of a person who is not identified offends the spirit if not the letter of section 3 [of the 1995 Act] since a defendant cannot seek leave to call and cross-examine a witness whose identity is not revealed". But he observed at paragraph 31 that hearsay evidence of this kind is technically admissible under the 1995 Act whatever its deficiencies, but that a magistrates' court is much more likely to be satisfied of the matters in section 2(3) of the 2003 Act if the application is supported by direct evidence of witnesses available for cross-examination and if what is served and adduced is first hand and complete save for omission of details of identity. Then at paragraphs 33-34 he dealt with disclosure, saying:

"I have said that the police should serve in advance written versions of the evidence that they propose to adduce. The claimant in the present proceedings maintains that the police should also, on request, make further wide-ranging disclosure of material which they may not wish to adduce, but which may be generally relevant. This, in my view, is generally too broad and would tend to frustrate the statutory expectation that applications for closure orders should be dealt with expeditiously.

The Civil Procedure Rules do not specifically apply in magistrates' courts. But CPR r 31(6) seems to me to be a good guide to what is necessary and proportionate. This provides that standard disclosure requires a party to disclose only the documents on which he relies and documents which adversely affect his own case or support another party's case. The Commissioner is concerned that a requirement such as this would be imprecise so as to frustrate the statutory purpose. He suggests that there should be no initial duty to disclose in advance of a written statement on behalf of the defendant of the nature of his defence and a specific request for particular admissible documents relevant to that defence. I have some general sympathy with this, in that disclosure under the CPR supposes that the parties have exchanged pleadings crystallizing the issues. Requests for documents should certainly be for specific relevant documents and not a fishing expedition. But applications for closure orders threaten to trample on defendant's article 8 rights and defendants may be vulnerable and unrepresented. I think, therefore, that the police should disclose documents which clearly and materially affect their case adversely or support the defendant's case."

The rival submissions before us

18. On behalf of the appellant, Mr Irwin submits that the justices were in error in proceeding on the basis that the Commissioner was not under a duty to disclose anything beyond what was contained in the witness statement of PC Davies. Concentrating first on that witness statement, he says that applying the approach in paragraph 34 of Cleary, which I have read, an application for a football banning order must disclose the original source material on which the application is based, and to require disclosure of such material is simply to require the provision of particulars of the incidents relied upon as supporting the making of an order. He submits, too, the witness statement of PC Davies offends against the principles identified at paragraphs 27 ff of Cleary concerning hearsay statements.
19. He refers to the provisions of the Civil Evidence Act 1999 and the Magistrates' Court (Hearsay Evidence in Civil Proceedings) Rules 1999. As regards the rules, he draws particular attention to rule 3, paragraph 4, which provides, amongst other things that a hearsay notice must identify the hearsay evidence, identify the person who made the statement to be given in evidence, and state why that person will not be called to give oral evidence. He submits that the reliance on hearsay evidence in compliance with the rules presupposes a degree of disclosure of underlying information. He accepts that hearsay issues were not argued as such before the justices but he relies on the hearsay provisions as reinforcing the arguments made in this court in support of the contention that the underlying material should here have been disclosed. He says that the appellant should have had the opportunity to cross-examine the persons who had first hand evidence of the matters covered, and that such cross-examination would not have been a futile exercise. As it was, an effective challenge was not possible and the withholding of the source material underlying the witness statement resulted in real unfairness. In relation to the point that the hearsay issue was not raised as such before the justices, he says that consideration of the hearsay character of the evidence and the problems arising for the appellant out of that hearsay character formed, or should have formed, part and parcel of the assessment of fairness that the justices were required to make.
20. As regards the compilation disc, Mr Irwin submits that the Commissioners should not be entitled to rely upon evidence devoid of context (for example, a 10 second clip from a 10 minute CCTV observation) in circumstances where the evidence providing that context has not been disclosed to the person against whom an order is sought. Failure to disclose the underlying video evidence, in particular evidence relating to periods immediately before and after the clips relied on, risks causing unfairness - a risk that is not ameliorated by the contention that a respondent would be entitled himself to give evidence. Mr Irwin submits that the appellant is entitled, as a matter of fairness, to have the case against him heard with proper evidence and proper disclosure of underlying material, and that it should not be incumbent upon him to be forced into giving evidence to challenge the material, rather than having the opportunity to examine the underlying material and, if necessary, to cross-examine on the basis that of examination.
21. In conclusion, it is submitted that what happened in this case prevented any effective examination of the evidence relied on by the Commissioner and risked unfairness, and that the justices were therefore in error in proceeding as they did.
22. For the Commissioner, Mr Sharghy advances six propositions.
23. First, he submits that the evidence was admissible even in the absence of disclosure of source material.
24. Second, as to the compilation disc of CCTV footage from different sources relating to different occasions, that was equally admissible, whether there was present an officer who took the relevant footage and was available to give evidence or whether one has to treat the relevant clips simply as hearsay.
25. In relation to the appellant's rhetorical question, "how can we challenge that material?", Mr Sharghy submits that unless the Commissioner is provided with a positive scenario or case calling for disclosure of additional material or the giving of additional evidence (for example, unless a case is advanced as to mistaken identification or that the appellant was not present at an incident shown), it is not unfair to proceed by reliance on the compilation without disclosing the underlying material. It is only in response to a specific case that additional disclosure may be called for.
26. Third, he submits that hearsay evidence is generally admissible, subject to the safeguards contained in the Civil Evidence Act 1995 and the procedural rules to which I have referred. He says that such evidence is admissible even if there is non-compliance with the rules, though that will go, of course, to the question of weight. With all hearsay evidence an issue arises as to weight, but that is something that the justices can properly determine.
27. Fourth, he says that if fairness did call for the equivalent of a prosecutor's statement in criminal proceedings in respect of unused material, then such a statement was provided, at least in part, in the third witness statement of PC Davies, in which he said that he had viewed the tapes and discs in their entirety and had used the best evidence to support the application. On the tapes and discs, the appellant was seen on several other occasions, not, however, committing acts of disorder or violence. At no time on the discs was it apparent that the appellant was a victim of crime. Inherent in that is a concession that on the rest of the video material the appellant was not committing any acts of disorder or violence. But the statement is also relied on in support, although it can only be partial support, of the proposition that the Commissioner was satisfied that there was nothing in the underlying material that adversely affected the Commissioner's case or assisted the appellant's case.
28. Fifth, Mr Sharghy submits that the determination of the weight to be placed on the profile evidence and the compilation is for the court, and that there is clear guidance on how to approach hearsay evidence. He refers to section 4 of the Civil Evidence Act 1995 and to passages in McCann, especially the speech of Lord Hutton at paragraphs 112-113 to which I have already referred. He also submits that the passages in the Court of Appeal judgment in Gough which I have cited, concerning the admissibility of, and the weight given to, the profile evidence in that case provide important guidance.
29. Sixth, and finally, he submits that taking into account all those matters the decision of the justices was fair and cannot be faulted.

Discussion and conclusion

30. At paragraph 20 of his judgment in Cleary, May LJ said this about challenges by judicial review to procedural decisions of Magistrates' Courts:

"In my view, it is not appropriate for this Court to address and decide questions of disclosure at a detailed level. We should be prepared to give some general guidance. In doing so, I note and respect submissions to the effect that judicial review applications of procedural decisions of magistrates' courts should not normally be entertained. I generally agree with and endorse this. Such applications are normally unnecessary and disruptive. It is normally preferable for the proceedings to continue and for any surviving challenge to be made on appeal or otherwise after the magistrates have made a substantive decision …. "

31. In my view, what is said there about challenges to procedural decisions is applicable here. It would have been much better in this case to wait until a final decision was reached in respect of the application for a banning order, rather than adjourning pending an appeal in respect of the ruling on the admission of evidence. If the matter had proceeded to a final decision and the banning order had been refused, there would have been no need for an appeal at all. The points now raised would have become moot. If a banning order had been made, the points raised in respect of the admission of the evidence could have been considered in the context of the evidence as a whole and of the way in which the justices, having heard the entirety of the case, approached the evidence that is now in dispute. Whilst wishing for that reason strongly to discourage what may be described as interlocutory appeals of the kind that has occurred in this case, now that the matter has got this far I do not think that the court should decline to answer the questions that the justices have asked it
32. The parties have referred to the lack of structured procedural regulation in relation to the making of football banning orders under section 14B of the 1989 Act and have suggested that this court might give guidance on issues such as the type and amount of disclosure that the police are under a duty to provide pursuant to an application under that section and as the admissibility of hearsay evidence in relation to such applications.
33. For my part, I would be reluctant to try to provide any general guidance on the basis of the limited facts of this one case. Certain matters will, however, emerge from the reasons that I give in support of the conclusion I reach in relation to this case. I also note that in considering the issues arising one can derive some assistance from the guidance already given, albeit in a somewhat different context, in the case of Cleary. As I have indicated, both parties have drawn on that guidance for the purposes of their own submissions.
34. In my judgment, the justices were plainly correct to proceed on the basis that there are no directly applicable disclosure requirements in relation to an application for a football banning order under section 14B. These are civil proceedings, and the rules relating to disclosure of unused material in criminal proceedings do not apply to them. The disclosure provisions of the Civil Procedure Rules do not apply to magistrates' courts, as was observed in Cleary. There are specific statutory provisions and rules governing the admission of hearsay evidence, but there are none laying down any particular disclosure regime.
35. In those circumstances, as it seems to me, the justices were correct to approach the matter by reference to the imperative of ensuring fairness in the proceedings before them, that is to say by considering whether the evidence that the Commissioner sought to rely on which was in principle admissible was evidence that could fairly be admitted in the absence of disclosure of underlying material: in particular, whether it was unfair for the first witness statement of PC Davies to be admitted without disclosure of the source material on which it was based, and whether it was unfair for the compilation disc, with the accompanying witness statement, to be admitted without disclosure of the full CCTV videos from which the compilation clips were drawn.
36. There was a technically distinct procedural issue as to hearsay. It is evident that the issue was not addressed in submissions before the justices, which explains why it does not feature in their reasoning. They cannot be criticised for failing to deal with points not raised before them, although in another case it would plainly be necessary to look carefully at the Civil Evidence Act 1995 and the relevant rules and to consider the extent of non-compliance with those rules, together with all other relevant matters, in determining the weight to be given to any hearsay evidence relied on. The position is, however, that despite non-compliance with the rules governing hearsay the evidence in question could be admitted; and in my view the substance of the hearsay issue was wrapped up in this case in the question which the justices did ask themselves, as to whether in all the circumstances the evidence could fairly be admitted. They left for consideration after hearing all the evidence the weight to be given to the material in question. As to that, section 4 of the 1995 Act and the passages in Gough and McCann to which I have referred are plainly relevant.
37. I do not think that fairness can be said to have required wholesale disclosure of the source material underlying PC Davies' first witness statement. Fairness did require disclosure of anything known to undermine the Commissioner's case or to assist the appellant's case, but the stance adopted by the Commissioner was that the material included nothing of that character, and there is no reason, on the face of it, to doubt the correctness of that stance, even though the third witness statement of PC Davies does not fully cover the point. Beyond that, in the absence of a defence case, raising any specific issue concerning the incidents covered in the witness statement (indeed, in the absence of any indication whatsoever as to whether and to what extent the allegations made were accepted or denied), I do not think that there was any reason why further disclosure was required as a matter of fairness or, therefore, why non-disclosure of further material should be regarded as a bar to the admission of the witness statement sought to be relied on. Indeed, in those circumstances, there seems to me to be some force in the point that the generalised request for disclosure had some of the character of a fishing expedition.
38. I note, too, that there were police officers in attendance and in a position to give first hand evidence of some of the incidents covered, and that the value of the witness statement and the extent to which it was challenged, if it was challenged, could be brought out in cross-examination of the officers and in the appellant's own evidence, if he chose to give any. In my judgment, all of these considerations told in favour of the justices' decision to admit the statement whilst reserving the ultimate decision as to the weight to be placed on it.
39. I also attach some significance to the fact that this kind of intelligence based profile evidence was evidently regarded in Gough as potentially important, and that whilst points were raised in the passage at paragraph 102 of the Court of Appeal's judgment, which I have quoted, the Court does seem to have regarded the evidence as of value, even in the absence of cross-examination of police officers in respect of such material.
40. As to the compilation disc and the related witness statement, I acknowledge the potential dangers of cherry picking and of giving a misleading impression by taking clippings out of context, but it does not follow that the entirety of the videos from which the clips were drawn had necessarily, as a matter of fairness, to be made available to the appellant or his legal advisers. I have referred already to the Commissioner's stance that there was nothing in the underlying material that undermined his case or assisted the appellant's case.
41. If there had been a specific request to view one or more of the underlying videos relating to a particular clip (for example, because an issue was raised to the effect that the fuller context was needed in order to assess the specific actions revealed on the clips, or because it was suggested that the appellant was wrongly identified on the clip), then fairness would almost have certainly have required that the appellant or his advisers be given an opportunity to view the full video before any reliance could be placed on the related clip. But in the absence of any such request or suggestion that a specific clip was or might be misleading, there was nothing to trigger a requirement, as a matter of fairness, to make further disclosure.
42. It is also to be emphasised that even if, as was effectively accepted in the third witness statement of PC Davies, the appellant was not engaging in acts of violence or disorder in any other part of the video material, that is to say in the undisclosed video material, that point was not capable of advancing his defence to any significant degree. What mattered was whether there were occasions upon which he was shown to have been involved in violence or disorder, and that was the point at which the compilation was directed.
43. A further consideration is that in relation to the compilation disc, too, the officers in attendance at court were, as we were told, available to give first hand evidence of some of the incidents shown on the clips and to be cross-examined generally about the video evidence and any limitations it might have.
44. For all those reasons, I take the view that the approach adopted by the justices in this case was correct. They were entitled to decide as they did that it would not be unfair to admit the statements of PC Davies or the compilation disc. In ruling as they did they made no error of law, and they reached a decision that was reasonably open to them in the circumstances.
45. Accordingly, I would answer all three questions in the affirmative and would dismiss the appeal.
46. MR JUSTICE TEARE: I agree.
47. LORD JUSTICE RICHARDS: Is there any other order that needs to be made?
48. MR SHARGHY: My Lord, not as far as the Commissioner is concerned, no.
49. MR IRWIN: My Lord, in terms of Mr Newman, he had the benefit of a representation order in the Magistrates' Court.
50. I understand the appropriate forms have been submitted, but in any event, I raise that in open court.
51. LORD JUSTICE RICHARDS: I recall a couple of days back signing a representation order to cover him in this court. There should be no problem. If there is, you can come back to me.
52. Thank you both very much indeed.