Police – Admissibility – Compilations – Disclosure – Football banning orders

Newman v Commissioner of Police of the Metropolis: DC (Lord Justice Richards, Mr Justice Teare): 25 March 2009

The appellant (N) appealed by way of case stated against a decision of a magistrates’ court to allow the respondent police commissioner to adduce a compilation witness statement and compilation disc containing video evidence, in support of his application for a football banning order in respect of N.

The compilation witness statement comprised a statement from a police officer that related to N’s ‘profile’, which had been gathered by police officers and police ‘spotters’ on 13 occasions when N was allegedly seen to be close to or involved in football-related disorders or in the presence of those who were known to be ‘risk’ football supporters and associated with football violence. The compilation disc contained video evidence garnered from various video sources and which had been edited to show purported incidents of N being involved in, or contributing to, football violence or disorder. N opposed the admissibility of the compilation statement and the compilation disc on the grounds that the underlying evidence that formed the basis of both had not been disclosed so that it would be unfair to admit the material as N would not be able to materially challenge their material contents. In relation to the compilation disc, N further asserted that the video evidence had been ‘cherry-picked’ and that he ought to be able to see the full video footage. The magistrates’ court found that there was no directly applicable statutory regime so that it was appropriate to consider the admissibility of the evidence having regard to the principle of fairness. Having regard to that principle the magistrates’ court held that it was not unfair to N to allow the commissioner to rely on the compilation statement and compilation disc and held that it could decide what weight should be given to the evidence contained in both statements. The questions posed for the opinion of the High Court were whether the magistrates’ court was correct: (i) in admitting the compilation statement in the absence of intelligence reports from which the statement was compiled being made available to N; (ii) in admitting the compilation disc in the absence of the available full video footage being disclosed to N; (iii) in concluding that there were no directly applicable disclosure requirements of the commissioner to N under section 14B of the Football Spectators Act 1989, deciding the matter as the magistrates’ court did, on general principles of fairness in all the circumstances. N contended that the decision of the magistrates’ court to admit the compilation statement and compilation disc was unfair as the commissioner was under a duty to make proper disclosure and that in the absence of such disclosure he would not have an appropriate opportunity to effectively cross-examine witnesses. N further contended that the admission of the compilation statement and compilation disc amounted to improper admission of hearsay evidence.

Held: The magistrates’ court was correct to find that there was no statutory regime directly applicable to the issue of disclosure that was before it. Given that finding, it was appropriate for the magistrates’ court to determine the issue of disclosure on the basis of whether, in all the circumstances, it would be fair to admit the material that the commissioner sought to rely on. In relation to both the compilation statement and a compilation disc, N had not raised any specific issues as to what was accepted or denied, namely he had not contended that he was not present at a particular location on a certain date or matters of that nature. Further, the commissioner had stated that there was nothing in the background evidence to the compilation disc that supported N’s case or detracted from the commissioner’s case. The magistrates’ court had therefore in all the circumstances properly admitted both the compilation statement and the compilation disc. Accordingly, it was appropriate to answer all the questions posed for the opinion of the High Court in the positive, R (on the application of Cleary) v Highbury Corner Magistrates’ Court [2006] EWHC 1869 (Admin), [2007] 1 WLR 1272 considered.

Appeal dismissed.

Ben Irwin (instructed by Punatar & Co) for the appellant; Shahram Sharghy (instructed by in-house solicitor) for the respondent.