PROVING THINGS 91: HOW TELLING IS A “FIST BUMP”? A JUDGE NOTICES THINGS THAT GO ON OUTSIDE THE WITNESS BOX

There are a number of issues that arise in the judgment of Mrs Justice Yip in  the judgment today Clark v Farley & Anor [2018] EWHC 1007 (QB). It shows how how a defendant failed to prove its case and the limits on how far a judge can infer matters.  It is also an example of how a judge can notice things beyond the witness box, and how they can come to form part (albeit a small part) of the overall  assessment of witnesses and the evidence generally.

(HOMAGE TO COLIN ETTINGER

It seems fitting that I dedicate this post to Colin Ettinger.  I found out yesterday that Colin  has retired. A partner with Irwin Mitchell and former president of APIL, Colin has always been a keen supporter of the “proving thing” series, sometimes sending me notes of cases he thought could be useful. Colin knows the importance of proving things.  His knowledge was, I suspect, gained over many years of  hard-earned experience. It was always a pleasure to take part in talks and activities organised by him where he was keen to pass this knowledge and enthusiasm on to his colleagues and other members of the profession. I wish him well, but I don’t really believe he has “retired” entirely.)

THE JUDGE SEES EVERYTHING THAT GOES ON IN COURT

Before turning to the facts of the case itself this case is a clear example of the warnings given by Fleur Kingham in her lecture, considered yesterday.

“What you don’t realise until you are on the Bench is just how much a Judge sees and hears. You have to assume that the Judge sees everything you do and hears everything you say in Court”

We see an example in this case. A witness, Ryan Edmonds, gave evidence.  There were questions as to where his loyalties lay.  Mrs Justice Yip observed not only his evidence, but his actions when leaving court.

While he was a somewhat diffident witness, he appeared to be doing his best to tell the truth. I did not get the impression he had set out to assist the claimant’s case. Indeed, I noticed that he “fist-bumped” Mr Farley on the way out of court, suggesting an allegiance to him.

THE FACTS IN CLARK -v- FARLEY

The claimant was seriously injured in a motor cycle accident. He was a pillion passenger on an off-road motorcycle that was involved in a collision with another motorcycle.  Neither bike was insured.   The MIB was, in reality, the substantive defendant.  The MIB ran a defence of ex turpi causa.

THE JUDGE’S ASSESSMENT OF THE EVIDENCE

The judge had to assess whether the claimant was involved in a “joint enterprise” to drive dangerously.

1. “On the evidence before me, there was nothing to indicate that Liam Clark was anything other than a normal boy aged 15, nearly 16. I have heard nothing negative about him. He was interested in clothes and girls. He lived in the Clock Face area of St Helens and it appears that he had many friends in the area. He tended to ‘hang around with’ boys and young men who were older than him, including Ryan Lee and Lee Callery. It was suggested on behalf of the MIB that this was evidence of Liam’s maturity. From all I have seen and heard in this case, I rather have the impression that it was more a result of the immaturity of others. I accept what his mother said: “He was as mature as any kid that age.”

2. There was an issue as to Liam’s interest in and experience of motorcycles prior to the accident. Darren Farley asserted in a witness statement provided to the MIB that he had seen Liam riding a motorcycle around the estate where he lived, and on the path where the accident occurred, “on many occasions”. He also claimed that he had been told by an unidentified friend that a couple of nights before the accident Liam had been riding a motorcycle and was seen talking to his mother who was in a car.

3. By contrast, Miss Woods said she had never seen Liam on a motorcycle. He had never expressed any interest in motorcycles. To her knowledge, he had never ridden one before, although she frankly admitted that he could have done so without her knowing. Her evidence was supported by that of Miss McGann and Mr Prescott, both of whom knew Liam well. They lived in the area and had never seen Liam on a motorcycle or seen or heard anything to indicate he was interested in them.

4. On this issue, I have no hesitation in preferring the evidence called on behalf of the claimant to that of Mr Farley. Miss Woods struck me as a patently honest witness. While the trial cannot have been easy for her, she gave her evidence in a measured way. She was not naïve, being willing to accept that Liam might have ridden a bike without her knowledge. She certainly did not strike me as a mother who would have condoned her son riding a motorbike about the estate. It is very unlikely that Liam regularly rode motorbikes in the vicinity of his home without his mother becoming aware of that. Darren Farley said in his statement “It is the kind of place where everyone knows everyone else’s business.”

5. I did not find Mr Farley to be a reliable witness. He displayed a total lack of empathy for the claimant and seemed interested only in himself and in denying any responsibility. I acknowledge that he suffered a head injury. I do not know whether he has suffered any neurocognitive sequelae that might have contributed to his combative attitude. He told me that his memory had been affected. Whatever the reason, he was a distinctly unimpressive witness. He insisted he had seen Liam and his friends riding motorbikes “many times”. He was unable to name any of the friends. He could not identify any specific times or locations when this occurred. He initially said he had seen Liam riding motorbikes at the accident location “many times” previously. In his oral evidence, he changed this to “once or twice” before conceding that he had never seen him there before the accident date. Cross-examined by Mr Worthington QC, he said that he did not really know Liam before the accident but knew of him. When later questioned by Mr Melton QC about his recollection of seeing Liam on motorbikes, he claimed to have known him quite well. To be blunt, I did not believe Mr Farley. I reject his evidence that Liam had frequently ridden motorcycles before the accident. There is no other evidence that Liam had ridden a motorcycle before.

6. Contrary to Mr Farley’s evidence that gangs of boys regularly rode around the streets of the estate, the police were not aware of any particular problem with motorcycles in the area. There is evidence that people did ride off-road motorcycles at the accident location, although neither the police or the adults in the community seem to have been aware of this presenting a problem at the time. Signs prohibiting the riding of motorcycles had been put up at the park entrances. However, P.C. Doyle acknowledged that broken fences allowed access to the accident location at other points so that it might be possible to get there without passing a sign…

1. Darren Farley said that he had been riding motorcycles at that location since he was 9 years old. He was aged 28 when the accident happened. Ryan Edmonds had owned a motorcycle for about 3 months. He rode it on the Mad Mile once or twice a week. When asked in his police interview why it was known as the Mad Mile he initially said, “Because there’s a motorway next to it”. It was then put to him that it was because bikes were ridden up and down it. He accepted that. I note that he appeared ready to accept everything put to him by the police in interview.

2. Andrew Carney also went there regularly, as did his brother Melvyn. Andrew told me that “loads of people” rode their bikes there but he had never seen Liam there before. He had never seen Liam riding or on the back of a motorbike before. While he was a somewhat diffident witness, he appeared to be doing his best to tell the truth. I did not get the impression he had set out to assist the claimant’s case. Indeed, I noticed that he “fist-bumped” Mr Farley on the way out of court, suggesting an allegiance to him.

3. There is no other evidence before me that Liam had been to the Mad Mile or had ridden on motorcycles before the day of the accident. I accept, as did Liam’s mother, that it is possible that he had done so but the evidence establishes no more than a possibility”

INFERENCES TO BE DRAWN FROM EVIDENCE

1. There is no evidence before me of deliberate or reckless thrill seeking or risk taking on the Mad Mile. There is no evidence that the path was used as a race track. Those who went there regularly all said that they just went there to ride their bikes up and down. Mr Edmonds, who was particularly frank with the police, told them that on previous occasions if he came across pedestrians on the footpath, he would stop and let them past. While it might be thought that the participants would seek to minimise their criminality, their accounts do fit with the other evidence. The police were not aware of a particular problem; there is no evidence of previous accidents; the adults from the community were aware of sometimes hearing bikes on the Mad Mile but did not appear to be particularly concerned about the activity there.

2. Mr Worthington QC suggests that the name “the Mad Mile” almost certainly came from the fact that bikes were or were likely to be ridden at speed along the path. I have put this consideration into the balance. However, the evidence, taken as a whole, does not establish more than that it was common for motorcycles to be ridden up and down the path in much the way that happened on the day in question.

3. I am satisfied that the claimant, like other youths in the area, would have known that people went to the Mad Mile to ride their off-road motorcycles. However, the evidence before me does not establish, on a balance of probabilities, that the claimant had been to the Mad Mile for that purpose before. Andrew Carney had never seen him there, although he went there often. In the end, Darren Farley agreed he had never seen the claimant on the Mad Mile before. He, too, was a regular attender.

4. The MIB invite me to find that it was improbable that Liam had never been to the Mad Mile or been on a bike before. They rely upon inferences to be drawn from the fact that Ryan Edmonds contacted him from the Mad Mile and that he accepted the invitation to go along. This, they suggest, implies he was in the habit of going to the Mad Mile or on bikes. They also rely upon the fact that no witness expressed surprise about Liam getting on a bike or said how unlucky he was to have been injured the first time he went on a bike. There is, in my judgment, no proper foundation for the inferences the MIB invite. There must be a first time for everything and the communication between Ryan Edmonds and Liam does not make it any more or less likely that Liam had been to the Mad Mile before. I accept that it is reasonable to infer that Liam had some interest in motorbikes and probably in riding on one from the fact that he was invited and went to the Mad Mile. However, that does not establish that he had done so before. The evidence I heard suggests that he had not, although this remains a possibility.

5. In their written closing submissions, Mr Worthington QC and Mr Rudd highlighted that the claimant chose not to call Lee Callery or Melvin Carney although both came to court. However, it was open to the MIB (or the other defendants) to call those witnesses. They were offered that opportunity and also chose not to call them. Bearing in mind, where the burden of proof lay on the live issues, I do not think this is a good point to take against the claimant.

6. In considering whether the claimant was party to a criminal joint enterprise so far as Mr Edmonds’ dangerous driving is concerned, I recognise the need to draw proper and sensible inferences. In joint enterprise cases, it will be rare indeed for the MIB to be able to call any direct evidence of express encouragement or as to a passenger’s intent…

1. On the evidence available in this case, I have not found that Liam must have known that the bike was likely to be ridden dangerously. On the available evidence, he was a newcomer to the Mad Mile and he had not been present very long before the accident occurred. He plainly intended to be carried on the motorcycle as it travelled along the path. However, there is simply no evidence from which I can infer that he intended the bike to be ridden dangerously.

2. There is no evidence that Liam knew that the motorcycle was in a dangerous condition. On the contrary, the evidence suggests he would not have known that. Therefore, even if that is relevant to Mr Edmonds’ dangerous driving, it cannot be relevant in considering Liam’s turpitude. The essence of the dangerous driving as it can be alleged against Liam is that this was a narrow path; the view was limited by foliage and by the layout through the bend and that there was potential for conflict if ridden at a speed that would not allow it to be stopped within the distance the rider could see to be clear.

3. The evidence does not establish that Liam in fact encouraged or that he intended to encourage Ryan Edmonds to ride in a way that would not allow him to stop in the distance he could see to be clear. Referring to paragraph 99 of Jogee, I find that there is no evidence that he intended to encourage Ryan Edmonds to drive dangerously with knowledge of the facts and circumstances necessary for it to be dangerous.

4. I have given careful consideration to the approach of the Court of Appeal in McCracken. However, by a fairly narrow margin, I find that this case is to be distinguished on its facts. The defendants have not established that Liam was party to a criminal joint enterprise with Ryan Edmonds to drive dangerously.

5. That finding is sufficient to determine that the defence of ex turpi causa cannot be relied upon by any of the defendants”