Sad as it may be, we all have 'favourite' judges. Whether it's because we particularly like them or whether it's because it is simply better to appear before them than their colleagues, I'm not sure. Either way, I appeared before one of my favourites recently. He's a favourite because I am yet to lose a trial in front of him. I have no doubt that it's just a coincidence but it's a coincidence that I happen to like.
Recently, however, I thought the game was up. Some months prior I had attended the Crown Court to represent a gentlemen at his PCMH. The charge was one of dangerous driving. The evidence appeared overwhelming. The story goes like this- it was about 23:30 and a police car was making its way along a (not very busy) main road. The occupants comprised the driver and his colleague who was sitting in the front passenger seat. Their "attention was drawn" to "two flashy sports cars" that were travelling, one just behind the other, in the opposite direction to the police car. As the cars passed the police car, the police officers both noticed that the drivers "seemed very young to be driving such expensive cars" (one was a Porsche which was being driven by my client, the other was a BMW being driven by the Co-Defendant). The police car turned around in order "to follow them to see what they were up to". The suggestion then was that both officers witnessed the BMW pull up alongside the Porsche (the BMW now being on the wrong side of the road) and the two cars "began to race". The officers said that the police car was doing "at least 60mph" at one stage along the main road but was unable to catch up with the cars. One officer alleged that there was "a near fatal" collision with a bus at one point. (There was no evidence from the bus driver). The police radioed their colleagues and fortunately for them there were two police cars nearby. One was parked at the top of the main road near a roundabout. The other was travelling down another road which led on to the roundabout (from the opposite direction of the main road). There were two officers sitting in the car which was parked near the roundabout. They both said in their statements that the Porsche and the BMW approached the roundabout at "excessive speeds" (the speed limit being 30mph) and that the BMW went the wrong way around the roundabout. The Porsche "went over the top of it" and stopped (as did the BMW) when they was "flashed" by the third police car that was approaching the roundabout from the opposite direction. Both of the drivers were arrested and both denied driving dangerously in their respective interviews. They said that they were observing the speed limit at all times, they were not racing, there was no driving on the wrong side of the road, they did not pass a bus, and they stopped when required to do so by the police.
At the PCMH, I gave fairly strong advice to my client. In short, there were 5 police officers who were going to give damaging evidence against him at trial. They all alleged that he was travelling over the speed limit, two alleged that he was "clearly racing" on a main road where there were other road users, one alleged that he nearly collided with a bus, and another two said he approached the roundabout at an excessive speed (one added "in a dangerous manner"). Believe me when I say that the totality of what was contained within the witness statements was far from good. However, the client was adamant that he had done nothing wrong. That was good enough for me. A not guilty plea would be entered and we would let the jury decide who was right.
The following weekend I decided to go and have a look at the road in question, it being not too far away from where I live. I went at night in order to get a realistic impression of what it must have looked like to the participants involved. Two things were of interest- (i) there were CCTV cameras at various points along the road- I'd already made a request in my Defence Statement for any footage but now at least I knew that the area was 'covered'- and (ii) The road was littered with moderately high speed bumps- they were of the sort that you had to go over, there was no getting round them. How, I thought to myself, was my client supposed to have driven a Porsche of all cars at the speeds alleged without destroying the front of his car? I took some photographs, knowing that I wouldn't be able to use them in evidence, as an aide memoir. I would later ask my solicitor to take some more so that I could use them in evidence.
The trial was listed for three days. I shall not rehearse the entire evidence. On day one the two officers from car number one gave evidence. An extract from the cross examination of officer number one (the driver) is as follows-
Me- You said in your evidence that you were travelling at about 60mph?
Officer- Yes.
Me- How do you know that?
Officer- I looked at my speedometer.
Me- And you did that all the way along the main road?
Officer- Yes
Me- If you're correct about that, the Porsche and the Mercedes were travelling much faster?
Officer- I am correct about that and yes they were.
Me- Did you have them under constant observation along the main road?
Officer- Yes
Me- How did they manage to navigate the speed bumps at that speed?
Officer- Sorry?
Me- The speed bumps. How did the drivers manage to navigate them at such speeds?
Officer- There aren't any speed bumps on that road.
Me- Really? Are you sure about that?
Officer- 100% sure
Me- Take a look at these photographs please. That's the main road isn't it?
Officer- Yes
Me- What are all these (pointing at the speed bumps)?
Officer- They are obviously speed bumps.
Me- That's funny isn't it, because you just told the jury that there weren't any?
Officer- Sorry, I got that wrong.
The officer's credibility had been annihilated. There was no way that the cars could have been travelling at the speed he alleged. I knew it, he knew it, the judge knew it and the jury knew it. My Co-Defendant's Counsel, in preparation of officer number 2 coming along (who alleged the near collision with the bus), asked as follows-
Co-Def- Tell the jury please about the near collision with the bus?
Officer- I'm sorry?
Co-Def- You know, there was nearly a big accident between the cars and an on-coming bus.
Officer- No there wasn't.
Co-Def- Are you sure about that?
Officer- Yes. I would have remembered if there had been a near collision with a bus.
We were now able to sit back and relax while officer two gave his evidence. He of course talked about the "in excess of 60mph" speed and the "near collision with a bus". The members of the jury could not have looked less impressed. Neither, for that matter, could the Judge.
The two officers who were waiting near the roundabout did not take the Crown's case much further. They were stationary and could give no realistic estimate as to how fast the cars were travelling. One officer clarified that when she said the Porsche went "over the top" of the roundabout, she meant that it took the "straight ahead exit", not that it literally went over the top of it. My Co-Defendant still had some difficulties because two officers gave evidence that he had gone the wrong way round the roundabout.
What did the jury make of it all? I don't know. In relation to my client the Judge upheld a submission of no case to answer and so the case was withdrawn from the jury. The Co-Defendant remained and I'm not sure yet what has happened to him.
So the simple point to take from this tale is that sometimes witness statements can be deceptive. A case can look overwhelming on paper but that is not always borne out in court. And, this Judge still remains one of my favourites.
Nice work.
ReplyDeleteWere you legally aided? The quality defence that you describe will be well beyond the capability of the unrep defendant who is becoming the norm.
On the face of it, we have here two Police officers whose sworn evidence cannot possibly have been true. It is difficult, under the circumstances, to understand how the officers might have believed it to be true. If they were where they say they were on the evening in question, they will, after all, have had to negotiate the same speed bumps which the Judge accepted impeded the progress of your client.
ReplyDeleteI am no lawyer, but might it be reasonable to suggest that consideration should be given as to the question of whether the offence of perjury has been committed in this case?
Will this be done, do you know? And if not, why not?
Thank you for the comments.
ReplyDeleteIn answer to BT, on this occasion I was being paid privately (which was nice).
As to the second comment, all that you say is true. In my experience, however, even where a witness admits to telling a lie (which was not the case here), it is very unusual to see that witness subsequently charged with perjury. Not unheard of, but unusual. In the present case, the officers have not admitted to telling a lie although, as you rightly point out, it is difficult to see how they might have believed what they were saying to be true. I suspect that what will happen here is that the prosecutor will give them a good talking to and may, depending on how annoyed he is, inform their superior at the police station. It is unlikely to go any further than that. Why? I don't know. But if I were guessing, I would say that if the Crown prosecuted every witness who admitted to telling a lie (or, irrespective of the admission, the evidence proved that they did) there would be an awful lot more prosecutions than there are at the moment. They generally save them for very serious cases and, even then, usually opt for attempting to pervert the course of justice charges (a good example is where an alleged victim to a sexual offence admits to making it up- I imagine that these cases are always prosecuted unless there is an exceptionally good reason not to).
I must say I was appalled by this tale. The idea that policemen might cook up a phony charge and then get a rap on the knuckles if and only if the prosecutor could be arsed to have a moan back at the policestation. Absolutely dreadful. I might expect civilian witnesses to lie - that is the name of the game - but policepersons (and lawyers) must be held to a higher standard.
ReplyDeleteThe there are the incentives. I can imagine a CPS prosecutor is hardly likely to stir it up with the police.
Then there is the procedural matter - I should expect the judge to raise a formal complaint in such a case - does this not happen as a matter of course? Probably not, otherwise the police would not dare to try it on. All seems very slack and sloppy.
I was about to say that maybe 'very slack and sloppy' sums up the criminal justice system but that wouldn't be fair. I like to think that cases such as these are the exception and not the rule. Not that that justifies them of course. The problem with a case such as this is that there may have been an element of truth to what was being asserted (there may, on the other hand, have not)- the problem is that people, police included, can't always help but to exaggerate their evidence and it is that which will lead to their downfall. I can't be sure where this case falls. In answer to your question, where there is no other conclusion than that the officer has deliberately attempted to mislead the court, the Judge will no doubt have something to say about it. This case, I think, fell short of that. Perhaps not by much but there we are.
ReplyDeleteQuite similar to the Mitchell case, is it not?
ReplyDelete