All England Law Reports/1987/Volume 1 /Taylor v Chief Constable of Cheshire –  1 All ER 225
 1 All ER 225
Taylor v Chief Constable of Cheshire
¬†QUEEN’S BENCH DIVISION
¬†RALPH GIBSON LJ AND MCNEILL J
¬†27 OCTOBER 1986
Criminal evidence – Video recording – Offence viewed on visual display unit – Admissibility of what was seen on visual display unit or video recording – Recording not available at trial – Whether evidence of contents of video recording inadmissible as hearsay – Whether evidence of what was seen on visual display unit or video recorder admissible as direct evidence of what was seen to be happening.
The appellant was charged with the theft of a packet of batteries from a shop. The prosecution evidence rested in part on what three police officers had seen in a video recording which allegedly showed the appellant committing the offence. The video recording was mistakenly erased before the trial and was therefore not available to be viewed by the justices, who nevertheless regarded the officers’ evidence of what they had seen on the video recording as admissible and convicted the appellant. The appellant appealed, contending that the officers’ evidence should have been excluded as hearsay.
Held – There was no effective distinction, for the purpose of admissibility, between a direct view of the actions of an alleged offender by a witness and a view of those actions on a visual display unit of a camera or on a video recording of what the camera recorded, provided that what was seen on the visual display unit or video recording was connected by sufficient evidence to the alleged actions of the accused at the time and place in question. Evidence as to the contents of a film or video recording was not inadmissible because of the hearsay principle, but was direct evidence of what was seen to be happening in a particular place at a particular time. The fact that the video recording was not available at the trial did not of itself render the evidence of the police officers inadmissible, although the court had carefully to assess the weight and reliability of that evidence. Since the evidence of the police officers had been rightly admitted and since the justices had correctly directed themselves as to its weight and reliability, the appeal would be dismissed (see p 227 e f, p 228 h, p 230 b to g, p 231 e and p 232 a e to g, post).
R v Kajala (1982) 75 Cr App R 149, R v Maqsud Ali  2 All ER 464, R v Fowden and White  Crim LR 588 and R v Grimer  Crim LR 674 considered.
Per McNeill J. Where the identification of an offender depends wholly or largely on the evidence of a witness describing what he saw on a visual display unit contemporaneously with the events which he describes or on a video recording of that display, or on what the tribunal of fact sees from such a recording, that evidence is necessarily subject to the appropriate directions as to identification evidence (see p 232 b c, post); R v Turnbull  3 All ER 549 applied.
For the hearsay rule and exceptions to it, see 11 Halsbury’s Laws (4th edn) paras 437-438, and for cases on the subject, see 14(2) Digest (Reissue) 596-598, 4841-4862.
Cases referred to in judgments
Garton v Hunter  1 All ER 451,  2 QB 37,  2 WLR 86, CA.
Morgan v Lee  RTR 409, DC.
Owen v Chesters  RTR 191, DC.
R v Fowden and White  Crim LR 588, CA.
R v Grimer  Crim LR 674, CA.
R v Kajala (1982) 75 Cr App R 149, CA.
R v Maqsud Ali  2 All ER 464,  1 QB 688,  3 WLR 229, CA.
R v Turnbull  3 All ER 549,  QB 224,  3 WLR 445, CA.
 1 All ER 225 at¬† 226
Douglas Andrew Taylor appealed by way of case stated by the justices for the county of Cheshire acting in and for the petty sessional division of Halton in respect of their adjudication as a juvenile court sitting at Runcorn on 11 March 1986 whereby they convicted the appellant of theft of a packet of batteries, contrary to s 1 of the Theft Act 1968, and fined him ¬£50. The facts are set out in the judgment of Ralph Gibson LJ.
Timothy King for the appellant.
Jane Hayward for the prosecutor.
27 October 1986. The following judgments were delivered.
¬†RALPH GIBSON LJ.
¬†This is an appeal by case stated from a decision of justices for the county of Cheshire in the petty sessional division of Halton, in respect of their decision whereby they convicted the appellant of theft contrary to s 1 of the Theft Act 1968. The information alleged that the appellant on 3 December 1985 at Runcorn stole one packet of Duracell batteries to the value of ¬£1¬∑4389, the property of W H Smith Ltd.
The evidence for the prosecution rested in part on what witnesses had seen in a video recording. At the trial a copy of that video recording was not available to be viewed by the justices. Objection was therefore taken that the evidence which was to be tendered by the prosecution witnesses as to what they had seen was not admissible. The matter was argued, and the justices made a preliminary ruling that the evidence was not on the grounds put forward inadmissible. The trial proceeded.
The facts found by the justices were as follows. On 3 December 1985 Brian Hitchmough, a security officer at W H Smith, was on duty at this shop. He was observing customers in the store on two television screens, which were in turn linked to two remote control cameras which he could control. One of those screens was linked to a video recording. The recorder was switched on, and a recording was made of an incident which lasted for a few seconds only and showed the back view of a person who, it was alleged, picked up a pack of batteries in his right hand and placed them inside his jacket. He then glanced up at the camera full face and walked out of camera range.
That recording was seen by Mr Glen Denson, the manager of the store, within a few minutes of it being made. About half an hour after the recording was made, Wpc Jennings and Det Con Holian viewed the recording and identified the appellant as the person who was shown in it.
Some time after Christmas 1985 that recording was viewed by Det Con Baker and again by Det Con Holian, and Det Con Baker also identified the appellant. The recording was later taken to Runcorn police station to be viewed by Mr Brian de Haas, who was then the appellant’s solicitor. In the event it could not be played on the police video, so it was returned to W H Smith and later arrangements were made for it to be viewed by Mr de Haas.
The case next records the following, that after viewing the recording Mr de Haas formed the opinion that no offence was disclosed, and also that he could not be sure that it was the appellant who was depicted. I break off reciting the facts to say that that is in fact a reference to evidence which Mr de Haas gave at the trial.
Returning to the findings, the video recording was left at W H Smith’s for safe keeping, as it was intended that the justices should view the recording. Shortly before the hearing on 11 March 1986, it was discovered that the recording had been erased from the video cassette by new security officers who had used the cassette.
As I have said, objection was taken to the admissibility of that evidence in advance, and the grounds on which the objection was argued are recorded as follows. It was said for the appellant that, although the video recording itself would have been admissible evidence, the evidence of the three police officers as to what they had seen depicted by the video recording was hearsay evidence and therefore inadmissible; the reason being that they would not be giving evidence of what they had seen directly.
It was also contended that, although previously the evidence of a police officer as to
 1 All ER 225 at¬† 227
what he had seen displayed on the screen of a Lion intoximeter had been held not to be hearsay evidence, that could be distinguished from the present case in that the intoximeter was an approved device, whereas here no device had been approved. I have read that now to put it out of the case. The cases referred to before the magistrates were Morgan v Lee  RTR 409 and Owen v Chesters  RTR 191, and neither side has in the hearing before this court submitted that any assistance can be derived from those authorities.
Returning to the contentions for the appellant before the justices, it was next alleged that to allow such evidence to be given made the prosecution evidence stronger, since each police officer would positively identify the appellant and say that he had committed an offence, whereas it should be for the court, after viewing a video recording, to determine whether or not an offence had been committed, and if so, whether it was the appellant who had committed such offence. It will be necessary to return to these aspects of the submission later in this judgment.
The submissions made by counsel for the appellant have been in summary as follows. Without production of the original recording, or of a proven copy, no evidence, he said, could be given of what any witness says he saw on the recording. Where evidence is given by production of a recording for viewing by the court, a witness, it was conceded, may give evidence to supplement it by giving evidence of identification, but such evidence of identification is inadmissible if the recording is not produced and viewed by the court. Finally, it was submitted that, even if there is no demonstrably applicable principle of law by reference to which evidence of what is seen on a recording can be treated as inadmissible if the recording is not produced, this court should nevertheless as a matter of policy pronounce such a principle because, if the recording is not produced, there is no possibility of the court assessing what counsel referred to as the only real evidence, which was the recording itself.
I for my part am unable to accept those submissions. In my judgment the evidence tendered was not inadmissible in law, whether by reference to the hearsay rule or any other principle in law. I would start with R v Kajala (1982) 75 Cr App R 149. The nature of that case was that there had been a public disturbance in Southall. Parts of what occurred were filmed by BBC cameras. A prosecution witness saw the BBC broadcast and recognised the appellant as one taking part in the disturbance. That witness gave evidence of what he saw on the recording and said that he confidently recognised the appellant. There was evidence to prove that the film depicted some of the events of the disturbance at the time and place at which it had occurred. In that case a copy of the original recording which had been seen by the witness was shown to the court. Because what was tendered was not the original, objection was taken to it, and to evidence given by reference to it. In rejection the submission that the evidence was inadmissible, Ackner LJ, giving the judgment of the court, said (at 152):
‘The old rule, that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to be excluded, has gone by the board long ago. The only remaining instance of it is that, if an original document is available on one’s hands, one must produce it; that one cannot give secondary evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility. Garton v. Hunter ( 1 All ER 451,  2 QB 37), per Lord Denning. See also Archbold, Criminal Pleading, Evidence and Practice ((40th edn, 1979) para 1001).’
The next case to which I would refer is the case of R v Fowden and White  Crim LR 588. There two persons, the appellants, were alleged to have been photographed on a video film carrying out acts of theft. At their trial the Crown sought to call evidence from a police officer and a store detective who knew Fowden and White to say that the persons on the film were the accused. The judge admitted that evidence of identity,
 1 All ER 225 at¬† 228
against the contention for the defence that it was purely a matter for the jury, looking at the film, to determine the question of identity. On appeal it was held (at 589)–
‘there was no difference in principle between a video film and a photograph or tape recording. Although it was not strictly necessary to decide the point the Court was of the opinion there was no reason in principle why the Crown should not be able to call a witness who knows someone to look at a photograph and give evidence to the effect that he knows the person, and it is the accused.’
However, in the circumstances of that particular case the court held (at 589):
‘… the evidence should not have been admitted as the prejudicial value outweighed its probative effect, because the identifying witnesses knew the accused from a similar shoplifting case a week later, and accordingly the defence were deprived from testing the accuracy of the identification without causing prejudice and embarrassment.’
It is to be noted therefore, in my judgment, that the court was proceeding on the basis that the evidence called was admissible in law, but subject to the discretionary power of the court to exclude it on well-known principles.
I would now go back to the case to which we were referred of R v Maqsud Ali  2 All ER 464,  1 QB 688. There evidence of murder was tendered against two accused based on admissions recorded in Punjabi dialect on a tape recorder concealed in a room in a police station. The evidence tendered was of translators who had listened to the tape and a transcript of their translations in translation. The evidence was ruled to be admissible. Marshall J, giving the judgment of the Court of Criminal Appeal, said ( 2 All ER 464 at 469,  1 QB 688 at 701):
‘For many years now photographs have been admissible in evidence on proof that they are relevant to the issues involved in the case and that the prints are taken from negatives that are untouched. The prints as seen represent situations that have been reproduced by means of mechanical and chemical devices. Evidence of things seen through telescopes or binoculars which otherwise could not be picked up by the naked eye have been admitted, and now there are devices for picking up, transmitting, and recording, conversations. We can see no difference in principle between a tape recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged.’
In my judgment that passage indicates that the evidence of the tape recording is to be viewed as any other evidence and subject to all other considerations of weight etc. I refer to another passage in this judgment because of reliance placed on it by counsel for the appellant. The passage in the judgment is as follows ( 2 All ER 464 at 469-470,  1 QB 688 at 702):
‘It is next said that the recording was a bad one, overlaid in places by street and other noises. This obviously was so and, as a result much of the conversation was inaudible or undecipherable. In so far as that was so, much of the conversation was never transcribed, but there still remained much that was transcribed, and the judge after full argument ruled that what was deciphered should be left for the jury to assess. We think that he was right. Lastly, it was said that the difficulties of language
 1 All ER 225 at¬† 229
were such as to make any transcription unreliable and misleading. This argument the judge treated with great care and circumspection. [Marshall J then referred to the warning given by the trial judge in his summing up and set out the facts in respect of those passages common to the translations and continued:] The court does not feel it necessary to go in detail into the common passages. Suffice it to say that, if they are accurate, there are phrases on the tape recording in which words said by both of these appellants on their face value amount to, or come very near to, a confession of guilt in this particular case. In the matter of the transcripts the court desires only to say this. Having a transcript of a tape recording is, on any view, a most obvious convenience and a great aid to the jury, otherwise a recording would have to be played over and over again. Provided that a jury is guided by what they hear themselves and on that they base their ultimate decision, we see no objection to a copy of a transcript, properly proved, being put before them. Here all the translations [I think that must be ‘translators’] were submitted to detailed and searching cross-examination, and it should be stated also that one of the translators called on behalf of the defence in the final part of his evidence came very close to agreeing with Rahmet Khan’s translation and Changuz’s translation, particularly on the one sentence that involved the appellant Maqsud.’
Counsel for the appellant fastened on the words in that passage ‘provided that a jury is guided by what they hear themselves and on that they base their ultimate decision’, and submitted that that should be treated as an authority, or at least an indication, that unless the tape is available to be played, no evidence would be admissible as to what anyone had heard on the tape. For my part I do not accept that submission. The court was referring to all the evidence. As we know, the tape was in Punjabi. The jury, I am sure, would have great difficulty in assessing the validity of the translators’ text by reference to the original Punjabi, and the point in my view was that the jury had to act on the evidence of the translators as tested in cross-examination as with reference to any similar issue. They would of course be entitled to take into account the audibility of the tape played to them, even if they were unable to understand the audible parts in Punjabi. I find no foundation in that case for the submission that in the absence of a tape, evidence as to what was on the tape must be treated as inadmissible.
I go next to the last authority to which we were referred, which is R v Grimer  Crim LR 674. In that case–
‘The theft of a bottle of spray cologne from a shop was recorded on video tape. This was seen later by a security officer who recognised the thief as the appellant, a man he had known socially for a number of years. The appellant was arrested and charged with theft. The judge at the trial ruled that the security officer’s evidence was admissible. The jury also saw the video tape. The appellant was convicted. He appealed on the ground … that the judge erred in admitting the security officer’s evidence.’
The report reads that the Court of Appeal, Criminal Division, in its judgment held–
‘that there was no distinction between the evidence of a man who looked at a video tape (provided there was no challenge to the validity of the tape itself) from that of a bystander who observed the primary facts, saw someone with whom in the past he was acquainted and could say so to the jury.’
This court has obtained the transcript of the judgment of Purchas J giving the judgment of the court, and accepts that that is an accurate summary of the main part of the decision.
We were referred by counsel for the appellant to other parts of the transcript. It is clear that one of the main objections was that the evidence of the witness was in fact that of an expert witness giving opinion evidence. The court rejected that submission, and in so doing founded on the fact that he, having known this witness for many years, was doing no more than that which any witness does who claims to identify someone well known
 1 All ER 225 at¬† 230
to him on having seen him in another incident and then identifying him later. Again the fact that that was referred to in a case in which the tape was produced, in my judgment founds no basis for saying that the evidence tendered if the tape has been lost becomes inadmissible as opposed to becoming subject to the comments as to weight and persuasiveness which naturally follow from the loss of the tape.
As to the submission for the prosecutor, counsel submitted that once it is proved that a video recording was a recording of what a machine detected and reproduced at the time and place in question, evidence of witnesses of what they say they saw on the recording is not different in law in point of principle from evidence of witnesses who claim to have seen the events by direct vision. She contended that all the arguments advanced on behalf of this appellant are in truth arguments properly directed at weight and not at admissibility. I think she adds that they were present to the mind of the justices, and that they were fully taken into account. She has referred the court to no further authority.
In substance I accept the contention made for the prosecutor. For my part I can see no effective distinction so far as concerns admissibility between a direct view of the action of an alleged shoplifter by a security officer and a view of those activities by the officer on the video display unit of a camera, or a view of these activities on a recording of what the camera recorded. He who saw may describe what he saw because, as Ackner LJ said in R v Kajala, to which I have referred, it is relevant evidence provided that that which is seen on the camera or recording is connected by sufficient evidence to the alleged actions of the accused at the time and place in question. As with the witness who saw directly, so with him who viewed a display or recording, the weight and reliability of his evidence will depend on assessment of all relevant considerations, including the clarity of the recording, its length and, where identification is in issue, the witness’s prior knowledge of the person said to be identified, in accordance with well-established principles.
Where there is a recording, a witness has the opportunity to study again and again what may be a fleeting glimpse of a short incident, and that study may affect greatly both his ability to describe what he saw and his confidence in an identification. When the film or recording is shown to the court, his evidence and the validity of his increased confidence, if he has any, can be assessed in the light of what the court itself can see. When the film or recording is not available, or is not produced, the court will, and in my view must, hesitate and consider very carefully indeed before finding themselves made sure of guilt on such evidence. But if they are made sure of guilt by such evidence, having correctly directed themselves with reference to it, there is no reason in law why they should not convict. Such evidence is not, in my view, inadmissible because of the hearsay principle. It is direct evidence of what was seen to be happening in a particular place at a particular time and, like all direct evidence, may vary greatly in its weight, credibility and reliability.
One particular aspect of this case is to be noted. The lost recording was made available to the appellant’s representative before the hearing. That was Mr de Haas. In the event he gave evidence as to what he had seen. The point is made by counsel for the appellant that, where this occurs, the making available of the recording to the advisers of the defence, and there is then a loss or accidental destruction of the recording, the defendant could be put in difficulty because he might want to call his representatives as witnesses in order to say what they saw on the recording, and they could not conveniently in the ordinary course of trial do that and act as advocate or representative for the accused. I see the force of that complaint. In my judgment it is one of the matters to which the court would have regard if, on the tendering of this evidence, or evidence of this nature, which if I am right is admissible, the court will have regard to in exercising its descretion to exclude evidence in a criminal case.
That is sufficient to dispose of the point raised in the case. I would answer the question by saying that the evidence was admissible, and the justices were right so to treat it.
It is necessary to mention some other aspects of this case. The objection to the admission of the evidence included, as I have already read out, reference to a contention
 1 All ER 225 at¬† 231
that the witnesses, if called, would say that the appellant had committed an offence, whereas it was contended that it should be the court, after viewing the video recording, who should determine whether or not an offence had been committed. There can be no doubt that a witness cannot be called to give his view, on what he has seen in a recording, or indeed on what he saw direct, that in his opinion an offence of any sort has been committed. All he can do is to describe what he saw, and matters of inference from the primary facts are for the court.
Some concern about the course of the trial, indicated by what was there said for the appellant, arose because it might have reflected the submission that had been made for the prosecution, and also because, as I have already read out, the findings of fact include that Mr de Haas, the solicitor previously acting for the appellant, had formed the opinion that no offence was disclosed, and appears to have been allowed to give that evidence.
Having heard counsel, neither of whom appeared in the court below, but who have obtained instructions, it appears to me that although there are some aspects of this case which gave rise to some anxiety, I am left, after considering the matter, confident that after ruling that this evidence was admissible, the trial thereafter followed a perfectly proper and normal course in all respects. The fact is that the case is directed to the one matter raised, namely the admissibility of the evidence, and it did not include other matters of evidence which were relevant to the conclusion which the court reached on the guilt of the accused. He did not give evidence, although his former solicitor did, to the effect to which I have referred.
The next matter to be mentioned is that counsel for the appellant submitted that if this court formed the view that the evidence was admissible, nevertheless it was not clear that the court had correctly directed itself with reference to the assessment of the weight and reliability of the evidence tendered by reference to the lost tape. I have considered his submissions and what appears in this case, and I am unable to accept that there is any reason to think that the court did misdirect itself or fail to appreciate all matters which went to weight of this evidence.
It is to be noticed that the justices stated that all there was in the recording was a matter of a few seconds only showing the back view of a person who was alleged to have picked up a pack of batteries in his right hand and placed them inside his jacket. It seems to me clear that their attention was directed to the summary of the totality of what these witnesses had seen. It is clear, because we inquired about this, that there was other evidence not relevant to this issue raised in the case, which was relevant to their conclusion that the evidence of what the man in the recording was seen to have done, coupled with the other evidence, was such that they could from it conclude that the offence of theft had been made out. It is not a case of the witnesses saying they thought it was theft. I mention it so that it will be clear that it has been examined, that the other evidence included evidence about the appellant being seen in the vicinity and his passing over something to another person, which was alleged to have appeared to be a battery, and also of his interview which contained an admission that he had been at the time and place in question.
That evidence which is not in the case has not been relevant at all to the consideration of the issue raised, but has gone to the question which counsel for the appellant asked leave to raise, and which we allowed him to raise, namely whether, quite apart from that issue there was any reason for supposing that there had in this case been a misdirection by the justices of themselves. I have already dealt with the evidence about Mr de Haas expressing an opinion that no offence was disclosed.
At the end of the day I look at para 6 of the case, which records the opinion of the justices that because the prosecution witnesses would be giving evidence of what they had actually seen depicted by the video recording, the evidence of the police officers was to be admitted and was not hearsay. They go on to record that, having allowed their evidence to be given on that, as I think entirely proper basis, they found the appellant guilty of the offence with which he was charged.
 1 All ER 225 at¬† 232
Having thus correctly, as I think, admitted the evidence, there being nothing to indicate that they had misapprehended it or misdirected themselves with reference to the other evidence in the case, for my part I would dismiss this appeal.
Where the identification of an offender depends wholly or in major part on the evidence of a witness describing what he saw on a visual display unit, contemporaneously with the events which he describes, or which a tribunal of fact sees from the recorded copy of that display, or what a witness says he saw on a recorded copy of that display, whether or not that copy is available to be seen by the tribunal of fact, and any combination of one or more of those circumstances, that evidence is necessarily subject to the directions as to identification evidence laid down in R v Turnbull  3 All ER 549,  QB 224 and juries will be directed, and justices must direct themselves, to approach the evidence in accordance with that authority.
The matter is more complicated because the tribunal of fact has to apply the R v Turnbull direction first of all to the camera itself, that is to say, as to its position, its opportunity for viewing that which it depicts, to the visual display unit or recorded copy, and to the witness. In other words, each of the three had to be subjected to the R v Turnbull test.
It is the more important that that test should be complied with strictly where, as here, in the absence of a copy which the justices could see, there is conflicting evidence on the one side and the other as to what actually appeared on the copy, and as to the certainty of identification of the offender.
Ralph Gibson LJ has referred to the facts here, and in particular to the evidence which the solicitor gave to the justices, and he has also pointed out that the appellant himself did not give evidence.
It does not seem to me, either on the question as posed, which should be answered in the terms that Ralph Gibson LJ has propounded, or on the subsidiary point raised by counsel for the appellant that it may be that the justices did not apply as strict a test as is required, that it can be said on the material before the court that they were in error. Indeed, it seems to me that the justices’ finding at para 6, which Ralph Gibson LJ has referred to, makes it clear that not merely was the material admissible in the form in which it was proffered, that is to say the oral evidence without the copy being available, but that the justices applied themselves to the facts and came to a conclusion of fact which was justified on the evidence, that is to say that they were satisfied on the proper standard of proof that this appellant was the person concerned and that he was guilty of theft as charged.
I agree with the order proposed by Ralph Gibson LJ.
The court refused leave to appeal to the House of Lords but certified, under s 1(2) of the Administration of Justice Act 1960, that the following point of law of general public importance was involved in the decision: whether it is lawful for a court in a criminal trial to admit in evidence oral evidence as to the contents of a video recording for the purpose of showing that the defendant committed acts allegedly amounting to an offence or allegedly implicating the defendant in an offence, including evidence as to identity, when the video recording is not produced to the court and when each of the witnesses is giving evidence as to what each has seen on the video recording viewed after the commission of the alleged offence.
11 December. The Appeal Committee of the House of Lords (Lord Bridge of Harwich, Lord Brandon of Oakbrook and Lord Oliver of Aylmerton) refused leave to appeal.
Solicitors: Byrne Frodsham & Co, Widnes (for the appellant); E C Woodcock, Chester (for the respondent).
Sophie Craven Barrister.