Neutral Citation Number: [2008] EWCA Crim 3060
 
No: 200704273/B1 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Thursday, 28th February 2008
 
B e f o r e:

LORD JUSTICE THOMAS 

MR JUSTICE JACKSON 
 
MR JUSTICE COULSON 
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R E G I N A 

v 

MARTIN KAMUHUZA
 
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MR I CASSIE appeared on behalf of the Appellant
MR A J H FAIRHEAD appeared on behalf of the Crown
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Judgement
1.	LORD JUSTICE THOMAS:  On 4th July 2007, before Mr Recorder Shanks and a jury at Snaresbrook Crown Court, the appellant was convicted of burglary of a dwelling house.  He was sentenced to a community service order in respect of another matter, namely the possession of an offensive weapon; the period of hours was 160 hours.  No penalty at all was imposed in respect of this burglary.  He appeals by leave of the single judge.
2.	The facts can be summarised in the following way.  On 19th December 2000 a flat, 121 St Ann's, Gascoigne Estate in Barking, was burgled during the day.  The occupant had left in the morning and returned in the evening to find the bathroom window open.  A camcorder and a PlayStation had gone missing.
3.	The owner described the window on her return as being slightly open, about 2 cms, and she said that it was apparent that it had been forced open from the outside.  Her flat was on the second floor, but there was a communal balcony outside.  She then called the police.  They attended a short while later. She told the police what had happened and they requested their forensic examiner attend.
4.	The following morning that forensic examiner attended and examined the window area in the bathroom.  It is clear from an examination report, to which we shall return, that a fingerprint with the identification number JWS/1 was lifted from a part of the casement window frame in the bathroom.  Some five years later, namely in January 2006, the fingerprint was matched to the appellant's fingerprint.  In evidence that was not challenged, the forensic scientist who made the match was certain that there were 33 ridged characteristics which matched.  There was no doubt, therefore, that a fingerprint of the appellant's had been found on the day after the burglary on the inside of the window.
5.	The appellant initially admitted the burglary.  He in fact then pleaded guilty on 20th April 2006.  In the course of his pre‑sentence report he said he had done so on legal advice.  He had only admitted it on the basis he would not be charged with possession of the knife found upon him.  He was allowed on 3rd July 2006 by His Honour Judge Radford to set aside the plea.
6.	A plea and case management hearing took place and the prosecution was asked if the scenes of crime officer and the Detective Constable involved in the case, Detective Constable Hagen, would appear as witnesses.  In December 2006 the prosecution informed the defence that the scenes of crime officer ‑‑ Mr Sanders/Saunders, and it is wholly immaterial what his name was save for a purpose to which we will come in a moment ‑‑ was no longer employed within the police force and his whereabouts were unknown; that they were seeking to have his evidence read.  It is important to note that that happened in December 2006.
7.	The case was listed then for trial in March 2007.  The appellant did not attend.  A warrant not backed for bail was issued.  He was subsequently arrested and bailed pending the trial.  It appears that at that hearing there was some further discussion about the attendance of the scenes of crime officer.  DC Hagen said he would try and find Mr Sanders or Mr Saunders. The prosecution subsequently served the evidence of the forensic scientist who made the comparison between the two fingerprints to which we have referred.
8.	When the trial commenced Mr Sanders/Saunders had not been found; a challenge was launched on behalf of the appellant, seeking to say that the evidence in relation to the fingerprint should not be admitted.
9.	The judge ruled against that submission and after that the evidence of the owner of the flat was read.  The report of the original scenes of crime officer to which we will refer was put before the jury, the evidence of the forensic examiner who had made the comparison was read and DC Hagen gave evidence.
10.	The appellant was called to give evidence.  His evidence was essentially that he did go to that estate to visit a friend of his and his fingerprint might have got on to part of the window during that visit.  He said that he would not burgle premises.  Having given that answer in the course of evidence‑in‑chief, the Crown successfully applied to have evidence of his previous convictions admitted before jury.  Those included theft from a dwelling house and evidence of taking goods in circumstances that could be said to amount to a burglary from a garage.
11.	The jury convicted the appellant as we have stated.
12.	This appeal has been brought solely in relation to the admissibility of the report of the scenes of crimes officer that was put before the jury under the hearsay provisions of the Criminal Justice Act 2003, primarily on the basis of sections 116, 117 and 114(1)(d)
13.	The document itself, which was put before the jury, is headed "examination report".  The name of the examiner is given, and it could either be Sanders or Saunders, but as was self‑evident, and accepted on behalf of the appellant, it cannot make any conceivable difference, save as to the question of whether Mr Saunders/Sanders could be traced and what efforts to had been made.
14.	The document then describes the fact that the scenes of crimes officer visited the flat in question, that it was a second floor flat and that he was there for approximately 45 minutes.  Under the heading "modus operandi" it said "forced bathroom window from communal balcony".  Then the document sets out exhibit JWS/1, namely the fingerprint that was compared on the appellant's arrest, and it states the following:
"Finger marks lifted.  I/S.  Fix to vertical frame to right opening of casement in bathroom.  Marks 32 cms from window ledge pointing to right."  
Then there are two references to lifting foot prints.
15.	It is self‑evidently obvious that the word "I/S" means inside.  It was we think contended before the jury, and certainly contended before us, that it might have some other meaning.  It is obvious that it cannot have any other sensible meaning.  The point was then made that the word inside was imprecise as to where precisely it was.  We shall return to that in a moment.  But what this document plainly showed was that the scenes of crimes officer had come and precisely identified where the fingerprint was, namely that it was 32 cms from the window ledge on the right of the frame of the casement in the bathroom and it was on the inside.
16.	The submission made on behalf of the appellant to the judge was based on a large number of points which we will have to consider in turn.  But essentially when counsel for the appellant was asked in this court what it was that the scenes of crimes officer would have been asked first about in view of his extremely clear report made those many years ago, it was said that he was going to be asked whether the casement window opened to the right or to the left.  That was relevant to the case that was being made, namely the fingerprint could have been on the inside on the right if the window had opened so that a hand put against it could accidentally have left a fingerprint in that position.
17.	The second matter that was to be asked of this witness was whether he had looked at the rest of the premises for fingerprints and if he had found none, or had found smudged fingerprints which he had not lifted, what his recollection was.  It was said, for example, that if he had found none, that might indicate that the person who was the intruder had gloves on which would support the explanation that the appellant's fingerprint came to be on the inside of the bathroom window by accident.  It might, of course, if there were smudged fingerprints elsewhere, have totally demolished that likely explanation.
18.	It must therefore be appreciated that at the forefront of the consideration of the Recorder must have been those two issues as to why it was necessary to call this witness and why there might be prejudice to the defence if this evidence was admitted under the hearsay provisions.
19.	We said that a number of other points were taken.  The first point that was taken was that the Crown had not set about, as they should have done, giving notice under the Criminal Procedure Rules and in particular rule 34.  It is true the Crown should have done that and no doubt they were criticised by the Recorder for not doing so.  However, the Recorder exercised his discretion under rule 34(7).  There can be no conceivable prejudice to the appellant by the exercise of the discretion to proceed to consider the matter without a written notice being given and the notice being delayed, because it is self‑evident from the facts we have set out that this was an issue that the appellant knew about.  That challenge to the Recorder's decision in this case was self‑evidently wholly without merit.
20.	The second challenge made was as to the exercise of the Recorder's powers under the hearsay provisions of the Criminal Justice Act to which we have referred.  The Recorder based his decision on three grounds.  The first related to section 116 - cases where a witness is unavailable; the Act sets out various conditions that have to be satisfied.  The important question in this case was whether one of the conditions for admission under that section had been satisfied, namely that the relevant person could not be found, although such steps as were reasonably practical to take to find him had been taken.  That is the condition under section 116(2)(d)
21.	We must say that we cannot see how the Recorder could possibly have been satisfied on the evidence of the police constable that reasonable steps had been taken.  It would be kind to describe the actions of the police officer as desultory.  If someone is employed in public service it is obvious that he must have some form of pension and therefore it would be extremely easy, assuming that he is still living, to trace where he lives in order for him to be paid the pension.  It seems to us, therefore, that in this case the steps taken by the police to trace him could not remotely be described as reasonably practicable.
22.	However the Recorder then turned to consider the admissibility under section 117 and in particular the relevant provisions of section 117(2), (4) and (5).  It is accepted that the requirements of section 117(2) were satisfied as the document containing the statement was created in the course of a professional occupation and that the person who supplied the information contained in the statement had, or may reasonably have been supposed to have had, personal knowledge of the matters dealt with.  Subparagraph (c) of that subsection would have been satisfied as the person concerned, namely Mr Saunders/Mr Sanders, had been the person with the information throughout.  So the document plainly fell within section 117(2) as has been accepted.
23.	However, because this was a document required for criminal proceedings, the requirements of sub-section (5) had to be satisfied.  The relevant provision of sub-section (5) is (b).  It states therefore:
"The requirements of this subsection are satisfied if ‑‑ 
... 
 (b) the relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement having regard to the length of time since he supplied the information and all other circumstances."
24.	It is clear that it was for the Recorder to consider carefully whether on the materials that were before him and with his knowledge of the way in which people work, and, in particular, the way in which scenes of crimes officers work, or people who have a similar job, the relevant person could reasonably have been expected to have any recollection of the matters dealt with.  The Recorder came to a very clear conclusion that, on the facts of this particular case, the condition was satisfied.
25.	That conclusion has been challenged in this court. It is very difficult to see when that submission is examined against the two questions about which he would have been asked in evidence, namely whether the casement window opened right or left, and, secondly, whether there were fingerprints elsewhere, or smudges elsewhere, or none, how he could possibly be expected to remember that.  It seems to us that the conclusion reached by the Recorder was one entirely open to him on the facts; that there is no basis that has been advanced in the argument before us on which that conclusion could possibly be said to be wrong in principle or outside the range of decisions reasonably open to a decision maker.  The Recorder having made that finding, the document was plainly admissible.
26.	The Recorder also considered whether it was admissible under the broader test in section 114(1)(d), but it is not necessary for us to consider his decision in this case.  It is sufficient that the document was admissible through one of the provisions on which the Recorder had relied.
27.	At that stage, when the Recorder had made that ruling, it would, of course, have been open to the appellant to have contended that the matter should be adjourned to enable applications to be made to find out by other means the evidence that it was sought to adduce by calling the scenes of crime officer.  No such request was made.  It was obvious that if an important point in reality turned on whether the window opened to the right or to the left, diligent counsel would have made an application for an adjournment but no such application was made.
28.	It is then said that the learned Recorder should have exercised his discretion under section 78 to exclude the evidence.  It is very difficult to understand the basis of that submission.  It is, as we understand it, said that it was somehow unfair to ask the appellant to recall where he was or how his fingerprints came to be on this bathroom window when it was accepted that the scenes of crime officer could not be expected to remember what he had done.
29.	In considering that submission, it is important to bear in mind what the learned Recorder said in his summing‑up.  If we may, with respect to the Recorder, say that his summing‑up is clear; it is fair; it puts to the forefront of the summing‑up the difficulties faced by the appellant being charged with this offence many years later.  It seems to us that in looking at the way in which the Recorder exercised his discretion and the way that he summed it up, the Recorder acted with scrupulous fairness in exercising his discretion to admit the evidence and then in giving the jury the appropriate warnings.
30.	Complaint is made next in relation to the summing‑up.  It is said that some passages in the Recorder's summing‑up point to the Recorder telling the jury that the scenes of crime officer would not have been able to remember matters if he had actually come to give evidence.  But reading the summing‑up as a whole, and in particular the passages where he deals with that submission, it is clear that the Recorder did not do that.  He merely pointed out, perhaps superfluously to a jury made up of people with common sense, that it was highly unlikely that a person doing a task of this kind would be able to remember whether, at one of no doubt many scenes of crime of this kind he had visited, the window opened to the right or to left; or whether, even more astonishingly, he would remember where the fingerprint was found, namely on the surface of the casement window into which the window closed, which, on one view, could be said to be the inside, or whether it was further round on the frame.  That was a matter about which the jury were well able to weigh up and assess the reality of the submissions made.  There is, in our view, nothing in the criticisms.
31.	We finally come to consider the question of whether this conviction can be said to be unsafe.  In our judgment, there is no basis whatsoever for such a contention.  The fingerprint of the appellant was on the inside of the window of the flat.  It was found there shortly after the flat had been burgled.  The appellant had to explain that as a matter of obvious inference.  In such cases it is within the experience of the court that if an explanation can be given which carries a degree of credibility, then, of course, there is a prospect that a jury might accept it.  But the explanation given by this appellant for the presence of the fingerprint on the inside of the window must have been seen by the jury to have been wholly incredible.  It is hardly surprising that they convicted him on that evidence.  We are entirely satisfied that this is a safe conviction.  He was indeed fortunate that he was not effectively punished for this conviction.
32.	For those reasons therefore this appeal is dismissed. 
33.	LORD JUSTICE THOMAS:  Is your client in work?
34.	MR CASSIE:  As I said earlier, I don't know that, no.
35.	LORD JUSTICE THOMAS:  He has not completed the form and this letter says to him "Please note under the Criminal Defence Regulations in the event of ... the court shall made an order that you pay the full costs of the representation."  Why shouldn't we do that?  And we will consider whether we should ask for the Crown's costs to be paid as well.
36.	MR CASSIE:  My Lord, I can say this, that Clarke J, when the application for leave was presented, his reasons for giving the decision said that it was arguable ‑‑ 
37.	LORD JUSTICE THOMAS:  If you take it that if you bring an appeal because it's arguable, why shouldn't you pay if you lose?  This is an appeal being brought.  Your client was not punished for this.  What is he doing now?
38.	MR CASSIE:  As I say, I would have to make enquiries.
39.	LORD JUSTICE THOMAS:  What you had better do is make enquiries and we will consider at 2 o'clock whether we make a recovery of defence costs order.  Will the Crown be applying for their costs?
40.	MR FAIRHEAD:  My Lord, can I have until 2 o'clock.
41.	LORD JUSTICE THOMAS:  The waste of money on cases is huge; you simply cannot, if someone is in employment, assume that this is a free ride.  
(Short Adjournment)
42.	LORD JUSTICE THOMAS:  Yes.
43.	MR CASSIE:  My Lord, I have made such enquiries as I can make.  The solicitor, who has conduct of this case is on holiday, and so to is his assistant.  I have been unable to get any up to date information about this appeal.  I can only give that information that was given to me the last time I saw him which was when he was sentenced.  It was this.  That he was effectively unemployed.  He had occasional days working as a labourer on demolition sites.  That is as much as I can say.  No order for costs was made against him in the Crown Court by the learned Recorder.  I have to accept ‑‑ 
44.	LORD JUSTICE THOMAS:  What we will to do is as follows.  We will say that we will consider making such an order and direct that you put in within 14 days your reasons as to why we shouldn't.  If the reasons are that he is not in work, and it is supported by some sort of evidence, then you need say no more because we wouldn't waste anyone's time by making an order.  But if he is in work, you will obviously have to go on and say we shouldn't make one and what his means are.  I don't want to waste your time, because if he's not doing anything ‑‑ that's all I really wanted to find out.  If he's not doing anything, we're not going to make an order.
45.	What about the Crown's cost? 
46.	MR FAIRHEAD:  I have not been able to make specific instructions but certainly the figure of £1,000 would be right I think. 
47.	LORD JUSTICE THOMAS:  I think you must inform the appellant what the Crown's costs are and he can include that in.  We would also consider making an order that your client pays the costs of the Crown as well.  Thank you both very much indeed.