| The Stephen Lawrence Inquiry | |||
CHAPTER FORTY-ONE THE CENTRAL CRIMINAL COURT TRIAL 41.1 The trial of Neil Acourt, Luke Knight and Gary Dobson opened on 17 April 1996 at the Central Criminal Court. The Judge was Mr Justice Curtis. He was, and is, one of the most experienced Judges dealing with criminal cases in England and Wales. In April 1996 he was one of the presiding Judges on the Wales and Chester Circuit; but he sat in many other parts of the country in his capacity as a Judge of the High Court, Queen's Bench Division. Before his appointment as a High Court Judge Mr Justice Curtis had served as Recorder of Birmingham. His professional life at the Bar, during which he specialised in criminal work, both prosecuting and defending, was spent in Birmingham and on the Midland and Oxford Circuit, both as Junior Counsel and as Queen's Counsel. 41.2 From time to time most High Court Judges hear cases at the Old Bailey, the Central Criminal Court, where the major London trials are customarily held. Hence his presence there to try the case levelled against these three men in the private prosecution which was to be conducted by Mr Mansfield and Mr Kamlish instructed by Imran Khan. 41.3 We express unhappiness at the criticism of this Judge by Mrs Lawrence during the course of the television programme "The Stephen Lawrence Story". The suggestion was made that the Judge had been in some way selected to try the case otherwise than impartially. We fully understand the disappointment of Mr & Mrs Lawrence that the prosecution failed. But having read and re-read the full verbatim record of the trial we are all convinced that no Judge could have reached any decision other than that made by Mr Justice Curtis. All the necessary evidence was called. All possible arguments were made and heeded. The prosecution was given every chance to make a case. There simply was not the material available to go to the jury. Mr Justice Curtis so found. We are convinced that he was right, as the following narrative will show. 41.4 The Defendants were all represented by experienced Counsel. Mr Batten QC and Mr Conway appeared for Neil Acourt. Mr Thwaites QC and Mr Kendal appeared for Luke Knight. Mr Stewart QC and Mr Wolkind appeared for Gary Dobson. 41.5 Mr Batten was the first to speak. He at once indicated that he proposed to argue that the evidence of Mr Brooks1 should be excluded, on the grounds that Mr Brooks' "purported recognition" and identification of Neil Acourt was so far undermined as to render it of no value, and thus that evidence should be held to be inadmissible and should be excluded in the Judge's discretion under Section 78 of the Police and Criminal Evidence Act 1984. Mr Batten sought a preliminary hearing before the case was even opened by Mr Mansfield. 41.6 Mr Thwaites supported Mr Batten's application. He rightly said that the whole case pivoted upon Mr Brooks' evidence of identification of his client, and he cited the well worn and well known case R v Turnbull 1977 QB which states that a Judge should intervene in order to stop a case "Because the identification evidence is so meagre and there is no other evidence properly capable of confirming the correctness of a weak identification". The case also sets out definitively the firm warnings and directions that must be given in every case involving identification evidence (see Chapter 39, para 13). Mr Thwaites also referred to Section 78 of the 1984 Act, and asked the Judge to hear DS Crowley's evidence at least in order to test its potency when looking at the identification issue. 41.7 Mr Mansfield urged the Judge to say that the question was one for the jury, or alternatively that the issue as to Mr Brooks' evidence should be decided at the end of the prosecution case. 41.8 In parenthesis we note that Mr Stewart held his fire and did not argue this point. His client Mr Dobson had of course not been identified at any parade. The evidence against him was very weak. 41.9 A long argument followed. The defence said that "This is a case where the prosecution do not have an identification that will withstand judicial scrutiny if the evidence is heard ........". Mr Batten floated a further argument which was to involve objection to the December 1994 video evidence. Mr Justice Curtis ruled that the challenge to the identification evidence should be made when it was to be tendered, that is after the opening and during the taking of evidence generally. 41.10 Mr Mansfield reconsidered the position, and said that the defence objections to any mention of the vital evidence were so widespread that there was virtually nothing that could be opened to the jury, and he asked the Judge to deal with the defence applications then and there. This the Judge declined to do, and so the jury were sworn. 41.11 There is no note of Mr Mansfield's opening to the jury. Indeed an opening is not usually transcribed. It was plainly short. On the next day (18 April) evidence was called. Alexandra Marie and Royston Westbrook gave their eye-witness evidence of the murder. Mlle Marie said that "It happened very quickly and I did not realise. I didn't have a chance to look at their faces". Mr Westbrook gave his vivid account of the murder and said that he had not been able to describe the "group of white boys". He said that he had been on identification parades and had not seen anybody that he could recognise. "It was dark. It was 10:30 at night and it was over really ... it was really, really quick. I was surprised, you know, this had happened through the quickness that it had happened. It was like 10/15 seconds and he was away and I just thought, you know, they kicked him and he got off and that was it". 41.12 Any lawyer knows of the difficulty involved as to identification during such a fast happening in the dark. The shadow of R v Turnbull 1977 QB was already upon the case. 41.13 Then Mr Mansfield called Mr Brooks. His evidence lasted for the rest of 18 April and until the short adjournment (about 13:00) on Friday 19 April. He continued his evidence on Monday 22 April. This Report has already dealt in some detail with the "management" of Mr Brooks. It is not surprising that by the time he left the witness box his evidence was valueless. It is pointless to try to summarise all that he said. The full transcript of his evidence is available upon the record. He was skilfully and wholly fairly cross-examined by Messrs Batten and Thwaites. They highlighted the following problems:-
These were in themselves formidable difficulties facing the prosecution. 41.14 DS Crowley was called on 23 April. His part in this case has already been discussed. Mr Ratip (the solicitor notetaker with Mr Khan) was called. Other witnesses also gave evidence, including the Police artist (DC Leveson), and DS Bevan, who had been the liaison officer with Mr Brooks. Mr Khan was called and recalled. A medical report on Mr Brooks by Dr Stewart Turner was put before the Judge, dated 27 May 1994. 41.15 Submissions followed on 23 and 24 April. Mr Batten and Mr Thwaites marshalled their arguments at some length. Mr Mansfield replied, and argued that the matters raised were simply referable to the weight of the evidence and not to its admissibility. "There is," he concluded, "a great deal that can be said about the circumstances of the identification in terms of its weight but nothing in relation to admissibility that should deter your Lordship from admitting both of these identifications. That is the way in which I put it". 41.16 On 24 April Mr Justice Curtis gave his decision. It is not a long judgment. It seems to us right to set it out in full in this Report. He said this:- "No-one disputes that on 22 April 1993 Stephen Lawrence was murdered in a public street in Eltham. He was, in fact, knifed to death by a young white man wielding a large knife and a group of four to six others were with him and are said to have taken part in the attack on Stephen Lawrence. As if what I have described is not intolerable enough it is clear that there was no reason why the victim was set upon. The irrational and violent behaviour was, in fact, made worse by racial prejudice as the remarks by members of the group and their behaviour show; clearly this makes the offence worse. The attack was witnessed by Lawrence's young friend Duwayne Brookes, who was also attacked but mercifully escaped. He was but 18 years old at the time. He has purportedly identified Neil Acourt and Luke Knight, two of the accused at this court, as participators in the attack. He did this on 13 May 1993 and 3 June 1993 respectively. It is necessary to look at these identifications that have been made in context: on the night of the attack the witness Brookes made a written statement to the police describing the man or young man we have referred to as "the stabber". I read his precise words": "Of the group of six youths I can only really describe one of them. The one who had struck Stephen was white, about 5 feet 8 inches tall, medium build and about 18 to 22 years of age. I would describe his hair as being long, over his ears and it was frizzy and stuck out at the sides. Most of his hair was down at the sides and I could clearly see his forehead. He had an oval face. I can't really describe his facial features but I think I could recognise him again from his hair and general look. Of the others I can only say they were all white, about the same age and they were all wearing jeans." The circumstances surrounding the offence of relevance to my duty in this case and the decided case of Turnbull, which is too well known to bear repetition are as follows: first, the sight that Duwayne Brookes had of the offence was at night, although he told me that the street was well lit; Secondly, the offence happened suddenly and was over in seconds. The attacking group, whom I have already described, ran across the road and struck Stephen Lawrence in the mouth of Dickson Road. That it was sudden and over in seconds cannot be doubted in the light of the evidence already given by Mademoiselle Marie, a bystander, and a witness called Westbrook; Thirdly, this is a fleeting glimpse case, since no sooner than the attack had been made than the group responsible ran off up or along Dickson Road. Mr Brookes, the witness, himself says that it was all over in three seconds. His view was over some 20 yards from along the street. His observation of the man responsible for striking Stephen was made whilst he, Brookes, was running off backwards at the relevant time. On 1 May 1993 a policeman saw Mr Brookes again. Brookes told him he could not add anything new to his original statement, which I have already incorporated into this judgment. Brookes confirmed to the policeman that his first statement had been made when things were fresh in his mind. On 6 May 1993 Brookes was visited at home by a policeman who is a member of the facial identify team, an expert in creating from the description of witnesses likenesses of persons suspected of crime. He painstakingly, over about an hour and a half, obtained a description from Brookes and took notes of what he told him. Brookes told the policeman that the closest he got to the stabber was about 15 to 20 yards. He had a view of him for about three seconds and it was pretty good lighting. He added that the only detail he could give was "hair mainly". "The hair", he said, "was fairly long, covered the ears, straight hair". Then he added: "It was very light brown in colour. After he had been running it was messed and fell to the sides of the man's face". No facial description was given by Mr Brookes to the policeman, though he did describe the face as very full oval. He said he was not too sure that he could identify this man again. That resulted in the creation by the police facial identification officer, of our Exhibit 8, from which it is abundantly clear that there is no face at all, in all practical terms, just a hair style. From that police officer the witness Mr Brookes was taken to another police officer who was charged with the duty of dealing with the clothing side of descriptions that were available to those enquiring into this case. This bears on the problem I have to resolve because the witness Brookes went through much the same procedures as I have already described, giving the officer the chance to compose a computer picture of the suspect. That has resulted in our Exhibit 9. What is of interest is that on this occasion the hair of the stabber is shown as blond. Mr Thwaites submits the proper description is peroxide blond and that certainly recommends itself to me. Once again, no face is shown. Proceeding chronologically, there is no doubt on the evidence before me that at this time names were being bantered about in Eltham, including the names of the Acourt brothers, that is to say Neil, a current defendant, and his brother Jamie, as being responsible for Lawrence's death. That is Brookes' own evidence and also that of his solicitor Mr Khan, which is to the like general effect. In the course of this trial Brookes has agreed that he had discussed with friends what has happened on the identification parade that took place, as I shall fully describe in a moment. He has agreed that from what the friends said he has been enabled to work out that the person he was to pick out on 13 May was an Acourt. Let us look at the particulars: on 7 May Brookes went on an identification parade. Jamie Acourt, a brother of Neil Acourt and a suspect, was on the parade. Brookes did not identify him. The fact that this accused's Neil Acourt's brother was on the parade is of significance in view of what Brookes was later to say about the appearance of Lawrence's attacker. On the 13th Brookes attended another identification parade. On the first he identified number 7 who was a volunteer and nothing to do with this case. On the third he identified nobody, although there was a suspect on the parade. On the second he identified Neil Acourt as in the group of attackers but not doing anything, that is to say not the stabber. On 3 June 1993 he attended a further parade and identified Luke Knight as involved, or as he said later, "one of the attacking youths", however he did not see him use any weapon. Immediately following this parade the witness Brookes had a conversation with his liaison officer DS Crowley. That officer was an officer who knew nothing about the case and was chosen for his duty as liaison officer for just that reason. There is no dispute between Brookes and Crowley that the policeman told him, Brookes, that he did not wish to discuss the case. His duty was to take the witness to and from identification parades and in normal parlance to "mind" him. I have seen and heard both these witnesses. Brookes has agreed with much of the substance of what Crowley has reported to the court. Also, in my judgment significant parts of what Crowley has reported is borne out by other evidence that I have heard, namely that Brookes was being fed with information, including the names of the two Acourts as responsible for the offence at the time material to this enquiry. What I am concerned with is not the mechanics but whether the substance of what Brookes has said is true and, bearing in mind the proximity of the conversation to the events in question, whether it is reliable and, in particular, more reliable than what is being said much later on. The main points of concern are Brookes' statement that he had been told it was the Acourt brothers and that this one, that is a reference to Neil, this accused, was the brother of the youth he had identified before. What matters is not that Brookes thought he had identified Jamie Acourt, which we know that he had not, but that Brookes had by inference seen the likeness of Neil Acourt to a member of the line-up on the earlier parade of 7 May 1993. The second point was that he, Brookes, had been given by his friends promptings of the Acourts' physical features and hair. Thirdly, that he did not see how the victim died. From his recollection, and I quote his words, he can only remember, "their physical description and hair", and did not in any way see the face of the youths around Stephen Lawrence. Brookes has agreed in evidence in this court that that last proposition is correct, though at one stage he did say he could not remember saying it but later he agreed that he did not indeed see the stabbing. This is in line with what he said to a policewoman called Bethel on the night of the murder. It follows if the substance of these statements by Brookes to the police is true, first the witness Brookes was from the start in major difficulties in recognising the attackers and, in particular, the stabber; second he had gone on at least one and possibly two identification parades, it matters not which, with information he should not have had and made an identification on one parade which was not based on true recognition. It is clear to me on the first issue that Detective Sergeant Crowley has correctly reported both at the time, and that is important, and later to this court, what Brookes told him about his limited ability to recognise the offenders. On the second issue, as Brookes himself says he was given the Acourt brothers, amongst others, as responsible within days of the offence by friends. He could not or would not name those "friends". From that and all the evidence I have seen and heard I conclude that Brookes did say that which Detective Sergeant Crowley has reported about the promptings to which I have referred under the second head of the issues. I accept Mr Thwaites' submission that the conflict between Brookes and Crowley does not need to be fully resolved in the usual way since on Brookes own account his evidence as to the vital matter that I am concerned with, namely the identification of one of the attackers, in particular the stabber, is contaminated. Matters do not stop there. As a matter of history, I record that in July 1993 the Director of Public Prosecutions decided not to continue the case. On 23 September 1993 there was a further development, the witness Brookes told the police in writing, he could now add that he was chased at or near the scene of the murder by a youth with an iron bar or something similar and who after chasing him returned to hit Stephen Lawrence on the head. It is to be observed that Stephen Lawrence sustained no head injury at all and that this account varies with the eye-witnesses' accounts and I refer to Westbrook and Mademoiselle Marie. Importantly Brookes did not describe that youth. Importantly he did not alter his previous description of the stabber. It is important that he, Brookes, had not mentioned this matter before to anyone, including his solicitor Mr Khan who had been advising him. It is equally important to appreciate that on this account that person was the last of the group of attacking youths that Brookes saw before his departure from the scene. It also now transpires, according to Brookes, that in September, the month when he had seen the police and reported the matter of the individual chasing him with the iron bar, and again on 6 November 1993 Brookes saw two young men in or near a Star Burger restaurant and at The Plough somewhere in the area of London that we are concerned with. On 9 December 1993, so a considerable time later, he made a statement to the police that the two young men at the Star Burger were definitely there when the murder occurred and as between themselves they looked very similar, as if they were brothers or even twins. After that committal proceedings took place at which the defendants currently at this court were, of course, present, but so was Jamie Acourt. For the record I observe that he was discharged by the Stipendiary magistrate. On oath Brookes said to that court that one of these Star Burger men, as we have called them, with short black hair was the attacker and that he recognised him immediately he saw him as the brother of a youth he identified on an identification parade. We then move to the trial at this court in front of me. Brookes gave evidence that the man that he had picked out on 3 June identification parade was the attacker. That was Luke Knight. Nobody has ever suggested that he was ever at the Star Burger or the Plough. It will be remembered that originally Brookes had stated that the identified suspect of 3 June had no weapon and that he did not see him with one. That of itself might not matter very greatly but that piece of evidence flies in the face of his previous descriptions of the attacker, "the man with the fluffy hair", or what has been referred to as "curtains" and what he had said about the Star Burger man. In the circumstances no jury could possibly accept the validity of that piece of evidence that he gave to me. I should also deal with Mr Thwaites' closely argued submission, which I can summarise by saying is to the effect that the solution to the problem of why Brookes identified Luke Knight on 3 June 1993 is that he, Brookes, was looking for a man who looked like the one he had seen on 13 May parade. In my judgment that analysis is likely to be correct. However, if one appreciates first that there was no true recognition at the time of the offence from which this identification could be made and an identification of a kind I have described in this court with the contradictory events that have occurred subsequently, that in my judgment is fatal to the admission of this evidence. Whatever may be the reasons and whether they are good, bad or in-between, the fact is that this court is having to adjudicate in April 1996 on alleged identification which took place in May and June 1993. I have heard Brookes evidence and seen him. As I have said, I am entirely satisfied that where recognition or identification is concerned he simply does not know in ordinary parlance whether he is on his head or his heels. This, I hasten to add, is understandable: he was undoubtedly shocked at the terrible events I shortly described at the beginning. Second, he only had a snap look at one and no more of his friend's attackers. Thirdly, since then many people and many times he has been asked about identification matters. Next, nearly three years further on in effect he has identified three if not four people as the stabber: the man we have called Curtains, Jamie Acourt effectively, Luke Knight, and the Star Burger man making four. When one remembers also that his identifications are unsupported by other evidence one could see why the submissions that are made to me not to allow the jury to hear this evidence are made. What is the duty of the judge? However horrific the crime and however objectionable the motive for it may be, that does not enable any judge to remove or alter the legal safeguards already in place to prevent, so far as humanly possible, the convictions of anybody on a misidentification. The perils of misidentification are well known, and an Act of Parliament and the established cases require the trial judge to act as a screen to see that the material to go before the jury is material on which they can properly convict according to law. It will be obvious to any intelligent listener that Mr Brookes' evidence of identification is impeachable not on just one but two grounds, that is to say no true identification recognition at the time and identification thereafter not by recognition but which is also tainted. In view of the Act of Parliament, which for those who are interested is s.78 of the Police and Criminal Evidence Act, and the Turnbull case and in my common law discretion as well, I shall direct that Brookes' identification of each of these defendants does not go before the jury, to do so would amount to an injustice. Adding one injustice to another does not cure the first injustice done to the Lawrence family. I so rule for the reasons that I have given. Other matters were urged on me about Mr Brookes' medical condition following the stabbing and a solicitor's note that has lead to a submission that Brookes had seen some statement which might be another witness's statement. I only mention it out of deference to the arguments of counsel to say that I have not overlooked those points but I do not need to pronounce on them in view of what I have already said. Before I finish speaking I would remind those who have just joined us that I have banned any reporting of what counsel say to me in the absence of the jury and anything I may say in court, since the jury are in their room and are to hear presumably further evidence and because the third defendant is not affected by the matters we have been discussing. He too has been identified and remains to be tried on an identification issue as well. Consequently, until I have heard further argument from counsel and they have had a chance to assess the consequence of my ruling the ban remains in place without any alteration whatever." 41.17 It should be said that Mr Justice Curtis was careful to focus on the most basic problem with Mr Brooks' evidence, namely the absolute confusion apparent from his own evidence and from the conflicting descriptions and evidence given by Mr Brooks from time to time. He relied upon DS Crowley's evidence only where it coincided with Mr Brooks' own evidence about their "conversation". He did not need to rely upon the medical evidence about Mr Brooks or the suggestion that Mr Brooks had seen other witnesses' statements. 41.18 In our judgment anybody reading all the evidence put before Mr Justice Curtis could properly reach only one conclusion, namely (as Mr Justice Curtis put it), that "where recognition or identification is concerned he simply does not know in ordinary parlance whether he is on his head or his heels. This I hasten to add, is understandable. He was undoubtedly shocked at the terrible events I shortly described at the beginning. Second, he only had a snap look at one or more of his friend's attackers. Thirdly, since then many people and many times he has been asked about identification matters. Next, nearly three years further on in effect he had identified three if not four people as the stabber ....". 41.19 However much we look at the case before Mr Justice Curtis we remain convinced that his proper assessment of the evidence in the light of the law inevitably led the Judge to reach the conclusion set out above. There simply was no satisfactory evidence available. Where this is the position the Courts cannot change the law or the rules out of sympathy or upon suspicion. The burden and standard of proof and the legal principles involved govern all cases, and there must never be differential rules or standards applied because of the horrendous nature of a case. 41.20 That decision ended the case. On 25 April Mr Mansfield indicated that "it would not be proper for the prosecution to place before the Court, without the Brooks' evidence, which your Lordship has ruled inadmissible, that [other] evidence as a reliable basis for any jury or court to infer the guilt of the three who remain in court." He added later, in the presence of the jury, "It is felt the fair and proper course is not to proceed further". The three men were then formally acquitted upon the Judge's discretion. The prosecution costs were ordered to be paid from public funds. 1We use the correct spelling of Mr Brooks' name,
although, where quoting below, we use the spelling "Brookes" as was
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