R v Clare; R. v. Peach (1995) 159 JP 412, Court of Appeal

A police constable who studied video recordings some 40 times of a brief incident which was the aftermath of a football match in September 1991, was an expert ad hoc in the traditional category of those qualified to give opinion evidence and had special knowledge that the court did not possess, so that his evidence identifying two men engaged in violent disorder was properly admissible. The Court of Appeal so held when dismissing appeals by Clare, and Peach, of violent disorder contrary to s.2 of the Public Order Act 1986.

The Lord Chief Justice, giving the judgment of the court, said that Clare and Peach were West Bromwich Albion supporters. After the match at Bolton, a brief fracas flared up between supporters of the two clubs amounting to violent disorder. The incident was brief and recorded in black and white by three video cameras affixed to buildings nearby.

The Crown relied on black and white video recording. The incident was brief and there were many supporters and other members of the public milling about and creating a confused scene; what was actually being done and who was doing it could only be discerned by close study.

PC Fitzpatrick had studied the film closely and analytically. He, together with a colleague, had filmed supporters in good quality colour arriving at the football ground, when they were in the stadium and as they left. PC Fitzpatrick had viewed the recording of the incident about 40 times. He had been able to examine it in slow motion, frame by frame, rewinding and playing as frequently as he needed. By so studying the film he was able to follow the movements of individuals and see what actions they took. By comparing the individuals performing violent acts with the colour pictures, he claimed to be able to identify not only the violent acts in the street but who was committing them.

The Crown sought to adduce his evidence in order to elucidate for the benefit of the jury what could be seen on the video recording. Neither appellant gave evidence. The main ground of appeal related to PC Fitzpatrick's evidence. He did not know Clare and Peach before that day.

His Lordship considered R. v. Leaney (1987) 38 CCC 3d 263; R. v. Steele (1992) SLT 847; and R. v. Howe (1983) 1 NZLR 618 and said that the phrase from Howe "expert ad hoc" sought to put witnesses like PC Fitzpatrick into the traditional category of those qualified to give expert opinion evidence. Whether or not the tag was appropriate, their Lordships were clearly of the view that PC Fitzpatrick had, as stated in Leaney "special knowledge that the court did not possess". Accordingly, it was legitimate to allow him to assist the jury. He was open to cross-examination and the jury, after a proper direction and warnings, were free either to accept or reject his assertions. His identifications were, their Lordships agreed with Howe, "no more secondary evidence than any oral identification made from a photograph".

If admitting such evidence seemed unfamiliar and an extension of established evidential practice, the answer had to be that, as technology developed, evidential practice would need to be evolved to accommodate it. While the courts had to be vigilant to ensure that no unfairness resulted, they should not block steps which enabled the jury to gain full assistance from the technology.

It was reported, (1995) The Times, January 9, that vicious attacks were captured on video and handed to the police by security guards; as a result some of the attackers were identified. Incidents such as this reinforce the importance of new technology.

In R. v. Coshall (reported sub nom R. v. C. (RE) (1995) 159 JP 521), it was held that a jury should not usually be permitted to take a transcript of the videotape evidence of a complainant with them when they retire unless it was with the agreement of both the prosecution and defence and the jury were reminded of the other evidence and the status of the transcript. We see here the court being vigilant in the application of technology.

Since we live in a "multi media" society with most homes having a personal computer, we cannot ignore the advance of science. Cross on Evidence (p. 493) quotes some old cases to prove that experts have been accustomed to give opinion. As long ago as 1553 Saunders, J said:

"If matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns. This is a commendable thing in our law. For thereby it appears that we do not dismiss all other sciences but our own, but we approve of them and encourage them as things worthy of commendation."

Sometimes a field may not have developed sufficiently for the courts to recognize it as one of appropriate expertise. Clearly the thing must be sufficiently established to have gained general acceptance in a particular field to which it belongs. Videos are now well established and some officers will have been familiar with them for a decade.