Luttrell & Ors, R v

Video lip-reading evidence is capable of being admissible as expert evidence. It must satisfy the ordinary requirements for expert opinion evidence. Reliability will usually affect weight rather than create a separate admissibility test, although poor reliability may mean that the evidence lacks sufficient probative value or should be excluded in the interests of fairness under section 78 of the Police and Criminal Evidence Act 1984.

Where admitted, lip-reading evidence requires a careful, fact-specific warning. The jury should be directed about the risk of error, its causes, and the particular strengths and weaknesses of the recording and interpretation. There is no absolute rule that it may only corroborate other evidence, but its admissibility and weight depend closely on the circumstances.

The court determined linked appeals arising from two Crown Court trials in which the prosecution relied on expert interpretation of silent CCTV footage.

In the Reading proceedings, Luttrell and others were prosecuted for conspiracy to handle stolen high-value computer and electrical goods. Luttrell challenged the admission and treatment of Jessica Rees’s lip-reading evidence. Beagley renewed his application to appeal conviction, and several defendants renewed applications concerning sentence.

In the Lewes proceedings, Dawson and Hamberger were convicted of conspiracies to supply ecstasy and amphetamine. Their case included competing interpretations by expert lip-readers of a car-park conversation recorded on CCTV. They challenged both the admissibility of that evidence and the adequacy of the Recorder’s directions.

The common issues were the admissibility, reliability, jury treatment and disclosure implications of forensic lip-reading evidence.

1. The appeals of Dawson and Hamberger against conviction were allowed. Their convictions were quashed and a retrial at Lewes Crown Court was directed. Luttrell’s appeal against conviction was dismissed. Beagley’s renewed application concerning conviction, and the renewed applications concerning sentence, were refused.

2. Expert evidence is admissible where specialised study or experience gives the witness’s opinion authority beyond that available to an ordinary witness, and the witness is qualified to give it. Applying Bonython (1984) 38 SASR 45, the court held that video lip-reading can satisfy those ordinary requirements. It is a recognised skill, and interpretation from video footage is an application of that skill.

3. Reliability does not constitute an additional, freestanding condition of admissibility. It generally goes to weight. It may nevertheless bear on admissibility where the proposed evidence lacks sufficient prima facie reliability or probative force, or where admission would make the trial unfair. The trial judge retains the common-law and section 78 discretion under the Police and Criminal Evidence Act 1984. The inquiry is fact-sensitive. Relevant matters include video quality, visibility of the speaker, the interpreter’s skill, possible contextual prompting, consistency with extrinsic facts, and whether the case turns on isolated words or the conversation as a whole.

4. Lip-reading evidence requires a special, tailored jury warning. The judge should explain the risk of error, why even an honest and impressive expert may be mistaken, and the recording’s particular strengths and weaknesses. The warning should not be given mechanically. There is no rule that lip-reading evidence can never establish a prima facie case, although the judge must assess its actual strength.

5. Judge Playford’s cautious direction in Luttrell’s case was sufficient, and the other evidence against him was substantial. In Dawson and Hamberger’s case, the Recorder failed to give the required special warning and misdirected the jury in a way that could have prevented proper assessment of the video’s quality. The court could not be sure that the verdicts would have been unchanged.

6. The prosecution should have made available material capable of casting doubt on Rees’s expertise and reliability. However, the undisclosed material would not materially have affected either trial or the safety of Luttrell’s conviction. The court also upheld the rulings concerning Beagley and found no sentencing error warranting intervention.

• Court of Appeal (Criminal Division): Dawson and Hamberger’s conviction appeals were allowed, their convictions were quashed, and a retrial at Lewes Crown Court was directed. Luttrell’s conviction appeal was dismissed. Beagley’s renewed conviction application and all renewed sentencing applications were refused.

• Lewes Crown Court: Dawson and Hamberger were convicted on 23 July 2002 of conspiracies to supply ecstasy and amphetamine. They were sentenced on 22 August 2002.

• Reading Crown Court: Luttrell, Beagley, Jheeta, Keshwala and Shergil were convicted on 8 January 2003 of conspiracy to handle stolen goods. Dhaliwal and Sahota had pleaded guilty before the jury was sworn.