Skeleton argument Colin Hammond PDF

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Skeleton argument Colin Hammond...

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IN THE CROWN COURT AT MANCHESTER

Case No ...... Regina v Colin Hammond 17.02.2021 ________________________________________________________________ Position statement for Colin Hammond to exclude evidence _______________________________________________________________________________________!

Introduction I am representing Colin Hammond in the case Regina v Hammond, my client has been accused of having stabbed Mr Whitehouse at the exit of a nightclubs the 19th of May 2020; a witness named Richard Waller identified my client through a search engine on the media, my application to the court today it’s for the court to exercise its discretion pursuing s.78 of PACE Act 1984 and exclude this evidence.! I would like to guide the Court to a bit of history in the case, the legislation and then I ll proceed through the reasons for my request to exclude evidence pursuing s. 78 of PACE guiding the court towards why the court should exercise its discretion.!

The facts: 1. On 19th May 2020 Colin Hammond went with his girlfriend Susie Ormond and his brother Martin to the “Acceleration X” nightclub in the centre of town. It appears that in the nightclub, Mr. Whitehouse started harassing Susie Ormond, trying flirtation with Susie and attempting a conversation that led to both brothers having a confrontation with Mr. Whitehouse in an effort to persuade him to desist. The Defendant had been in physical contact with Susie prior to this incident such that it would have been obvious to anyone watching that the two were a couple. Mr. Whitehouse’s actions were obviously provocative and have been described as likely a product of drink or drugs since my client alleges that cocaine it’s easily available at the nightclub and that he had

noticed Mr. Whitehouse periodically attending the gentleman’s toilets at a suspicious frequency. # #! 2. During the confrontation, Kevin Wright a bouncer, arrived, my client told the bouncer that Mr. Whitehouse was causing trouble and that he thought he was on drugs. When the defendant mentioned the drug, the bouncer throw them all out. My client’s view is that it was the open mention of drugs and not anything he said that caused this reaction. This was all witnessed by his girlfriend, Susie Ormond, from whom we have received a witness statement in evidence, Ms Ormond is a witness of a good character.! 3. The parties were ejected from the nightclub and my client with his girlfriend and his brother ordered a taxi this is exhibit No 1. Mr. Whitehouse approached the group outside looking to provoke matters/behave aggressively, approaching Susie Ormond again and predictably, both brothers remonstrated with him. While verbal abuse was exchanged, my client instructs that Mr. Whitehouse lurched towards the brothers. There was then a scuffle and a series of indistinct and sudden movements then Mr. Whitehouse bent over double with blood visible on his shirt. At the point of stabbing a third male with a brightly coloured shirt was also present. ! 4. Mr. Whitehouse attended an ID procedure and did not pick Colin Hammond which is obviously a significant point.! 5. The defendant did not stab Mr. Whitehouse nor did he see anyone doing so. For the avoidance of any doubt whatsoever, my client did not see his brother stab Mr. Whitehouse while he refers to a third male with a brightly coloured shirt who was also present at the scene.! 6. The defendant has previously been convicted and seeing what happened, fled the scene because he genuinely feared being blamed for something he did not do. He was circulated wanted and not arrested until 4th August. # # # #!

The issues : Mr Whitehouse couldn’t really see what was going on because He was bleeding a lot on the floor.! He recalls being outside the club trying to gather his thoughts when a group of men rushed him. He could not say exactly how many or where they came from, the next thing he remembers is that he felt really warm on his clothes and when he looked down he realised he was bleeding. He stated he had been stabbed but it happened so quickly that he couldn’t even say how many times. The doctors told him he received 4 stab wounds from a knife and that the police arrested a man and as stated previously, Mr Whitehouse did not recognise my client as his attacker on an ID parade.!

The matter in concern here it regards one of the witnesses statement, this is Richard Waller’s who claimed that he was just to the side of the entrance of the club at about 20 foot (or around 6 metres) away from the scene, he stated he saw my client’s face and that after the attack he looked on social media because he had a feeling he had seen his face before. He confirmed having looked at several pictures of Colin Hammond on picture apps and that he definitely recognises him.!

The Legislation: S.78 PACE create a discretion to exclude evidence: (1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all circumstances including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. This discretion to exclude a confession is likely to be exercised when deliberate impropriety or bad faith is present, resulting in unfairness.! Applying the Court of Appeal in Charlton [2016]EWCA Crim 52, it is for the accused to persuade the court that the evidence of a prosecution witness ought t be excluded under s.78 and that the burden is “no higher than the balance of probabilities”. The authorities considered at F2.12 were not cited.! Where the defendants pre trial statements are excluded under s.78, the correct approach is for the magistrate to seek the views of the parties and then consider whether the substantive hearing should be dealt with by a differently constituted bench (DPP V. Lawrence [2008]1 Cr App R 147).!

• No first description was taken at the scene as required by the code D of PACE.

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The code D of PACE deals with the Identification of a Witness, the identification of a suspect by an eye-witness and cases when the suspect's identity is not known as well as cases when the suspect is known and available.! Here it appears that the identity of he suspect was known since Waller had already seen that face, but in order to give a name to that face he made a research on the web engine precluding the authenticity of the identification itself as it is not carried out in accordance with the code D of pace.! As stated, Richard Waller had seen the picture of the defendant on the internet contaminating his subsequent positive ID at the parade. Richard Waller’s evidence is a “voire dire” and accepted seeing an image of the defendant on the internet. He refused to say exactly where on the internet he saw the image and refused to give any further information about the search, saying that this was because he believed this could endanger himself or third parties.!

The breach of code D of PACE, could be dealt with the Forbes direction:!

In the Forbe’s trilogy ( Popat, Forbes and Popat 2) the question before the committee was whether the provision on paragraph D 2.3 of the code of practice apply where a suspect has already been positively identified. The committee was also required to determine what effect would have, if any, the failure to hold an identification parade would have on the suspect.! Code D 2.3 of the code of practice of the Police and Criminal Evidence Act 1984 provides that “ whenever a suspect disputes an identification, an identification parade should be held if the suspect consents, unless paragraph 2.4 (officer consider it will not be practicable) or 2.7 (group identification) or 2.10 (video film identification) apply. A parade may also be held if the officer in charge of the investigation considers that it would be useful, and the suspect consents.! D 2.17 provides that “ a police officer may take a witness to a particular neighbourhood or place to see whether he can identify the person whom he said he saw in the relevant occasion”. In any event the way identification should be made is up to the police to be decided according to the way the investigation is being made and not for the witness to go and try to match a name to a face though it’s own idea or someone’s advise.! Where there is a breach of the D code of PACE, it can sometimes be dealt with it by telling the jury what the breach was and highlighting any unfairness to the defendant.! The procedures in Code D are designed to test the ability of a witness to identify a suspect he claims to have seen or recognised from a previous occasion. They also require any descriptions provided by the witness to be recorded and retained in order that a comparison can be made with any subsequent identification. In 2014, a joint CPS/Police document was produced by the National Visual and Voice Identification Strategy Group (NVVIS) providing guidance of procedures to be followed where there has been an identification from social media. 1. Social media identification is admissible evidence. However, formal identification should still be considered, applying code D. 2. Each case is unique on its own facts. 3. Obtaining full details of the social media identification is essential.

If we look at the case in Regina v. McCullough, Owen McCullough and a coaccused Thomas Roberts were convicted on two counts of robbery and two counts of having an offensive weapon. McCullough appealed against the conviction; the case against the appellant was that he was one of the men involved in the offences to which we have referred. ! The main issue on the appeal is whether the judge erred in allowing certain identification evidence to be adduced against the appellant at the trial. In this case a copy of the relevant CCTV footage from The Punch Bowl was obtained by the police. Still photographs were taken from it and shown to police officers; two

officers who had viewed the stills identified both defendants as appearing on them. There was no challenge to those identifications.! Although the appellant was identified as being with Roberts in the public house, there remained the question whether he was involved in the incident when the bikes were taken. McCullough did not give evidence at the trial and Robert’s excluded him from the group that went to look at the bikes. ! The prosecution case was based entirely on the identification of McCullough by a victim-witness, Marsland, one of those whose bikes were stolen. Marsala identification was contaminated, in fact some days after the incident Marsland was told by a friend of his brother that what had happened sounded like what the appellant would do, which prompted Marsland, together with his brother and friend, to go on to the Facebook site to look for the appellant. His evidence was that he looked at a photograph of the appellant and also photographs of other individuals and groups of people, but he was satisfied from seeing a photograph of the appellant that the appellant was present at the scene and was involved in the incident and was indeed the person he saw riding the bike away. He subsequently informed the police of this. A formal video identification procedure was arranged. At that procedure Marsland saw videos of nine individuals who included the appellant. He identified the appellant as the person who had been present at the scene.! An application was made on the appellant's behalf at trial for Marsland's identification evidence to be excluded. The judge was satisfied that the evidence was admissible and that it was for the jury to decide what weight to give it. He said that there might have been an issue for the prosecution to deal with if this were the only identification of the appellant in the area. But he pointed to the unchallenged identification evidence of the police officers that the appellant was in the neighbourhood of the incident and was in the company of the co-accused Roberts.! The judge subsequently allowed the appellant's counsel to explore with Marsland in a “voir dire” the circumstances of the Facebook search. Marsland was unwilling, however, to divulge details of his brother's friend or of the Facebook account used in order to access the appellant's account and his photograph. So it was not possible to know what was on the particular Facebook page that Marsland said he had seen. There was no print-out, even in redacted form, of the material he said he had seen. Hence the uncertainty of the truthfulness of his evidence (evidence or hearsay?)! On appeal the submission on behalf of the appellant, was that the judge was wrong to allow Marsland's identification evidence to be adduced. It is said that the Facebook identification was unsatisfactory and unreliable. Indeed, the judge in summing up said the process was not the way in which the police would be happy to have evidence of identification. The further submission is that the Facebook identification contaminated the subsequent identification of the appellant by Marsland in the formal identification procedure.

How similar are those two cases? 1. In McColough’s case the evidence had also been contaminated from “ a voire dire” ; it was suggested by Marsland’s friend’s brother that that behaviour was typical of the accused, leading to Mrasland going to look for that specific person on the internet. Here very similarly, the witness was searching for “a face” and went on Facebook to look for it. Although his search on Facebook was not guided by a third party, his mind and the image he had of the attacker had been compromised by looking at pictures on social network, in fact he did not know the attacker by name and needed to search for one name on the internet in order to put a name to a face.! 2. Police ID parade, distinguishes because of the way it is conducted and pictures are shown to a certain extent in order to see if a witness can recognise the accused and not on a persistent search until a face is matched, perhaps through autosuggestion driven by the effect of having repeatedly seen that particular image on the social which does not necessarily correspond to the reality. ! My clients case distinguishes notably from McCullough’s case as follows: 1. In McCullough’s case the police recognised him from the cctv stills which evidence played a very important part in that proceedings, while in my clients case there is no evidence from the police simply because the police was not present at the time of the crime and therefore did not see it happening and could not therefore recognise him.! 2. In McCough case the police evidence was in fact never questioned.!

My Request to the Court :! For all those reasons we kindly ask the Crown to exercise its discretion under s.78 of Pace Act 1984 and exclude Richard Waller’s evidence in the case....