The Weekly Law Reports, May 5, 1972

651
1 W.I*R. Stream Properties v. Davis (Ch.D.) Pennycuick V.-C.
A necessarily mean the application to determine interim rent because such
an application is the only form which proceedings under section 24A can
take. Then in the subsequent expression " the date on which the pro-
ceedings were commenced" the word " proceedings" can only, as a
matter of grammar, refer back to the word " proceedings " in the opening
expression i.e. the application under section 24A. It seems to me quite
impossible to construe subsection (2) so that the word " proceedings " in
° the subsequent expression denotes the proceedings started by the sub-
stantive originating summons. That involves construing the words " the
proceedings " in the subsequent expression in subsection (2) as something
different from " proceedings under this section " in the opening expression
in the same subsection. I find that an impossible construction. It is
worth pointing out that there is no reference to proceedings in section 23
Q or section 24 of the Act of 1954 or in subsection (1) of the new section 24A.
So there is nothing anywhere to which the words " t h e proceedings" in
the subsequent expression in subsection (2) could relate back except the
words " proceedings under this section " in the opening expression.
One may consider how Parliament would naturally have expressed
the view contended for by counsel for the landlords. It would have
been easy to include the word " application " instead of the word " pro-
D ceedings " in the opening expression and then make clear in the subsequent
expression that " the proceedings" there referred to the substantive
originating summons. Parliament has thought fit to adopt a different
course. It is said by counsel for the landlords that on that construction
the new provision only partially, if at all, alleviates the hardship which
is pointed out by Wynn-Parry J. It seems to me that the section does
T, alleviate that hardship to the extent that if the landlords take note of the
true effect of the new section 24A and make application under the section
at the earliest available date, then the new rent will relate back accordingly,
i.e. to the date of that application or to the alternative specified date,
whichever is the later.
I must, in the circumstances, decide that the new interim rent in the
present case will only begin to run from the date of the present summons,
F namely, November 26, 1971.
Order accordingly.

Solicitors: M. A. Jacobs & Sons; Clifford-Turner & Co.

G
[CENTRAL CRIMINAL COURT]

* R E G I N A v. R O B S O N

* R E G I N A v. H A R R I S
H
1972 Jan. 11,12,13,14, 17, 18,19, 20,
21,24,25,26;
March 21 Shaw J.

Crime—Evidence—Tape recorder—Admissibility of recording—

Prosecution relying on recording put forward as original
—Standard of proof—Whether prima facie case sufficient—
Whether jury to be sure of recording's authenticity before
taking account of contents
 The Weekly Law Reports, May 5, 1972
652
Reg. v. Robson (C.GC.) [1972]
At the defendants' trial the prosecution intended to rely A
on certain tape recordings of conversations; they were put
forward as original recordings.
On the question of admissibility as evidence for the
jury: —
Held, admitting the recordings, that tape recordings were
admissible if the prosecution made out a prima facie case of
admissibility by evidence which defined and described their
provenance and history up to the moment of production in g
court and the evidence appeared to remain intact after cross-
examination (post, pp. 653H-654A).
Per curiam. Before the jury take any account of the
content of a tape recording they must be sure of its
authenticity (post, p. 656A).
Reg. v. Stevenson [1971] 1 W.L.R. 1 considered.
The following cases are referred to in the judgment: Q
Reg. v. Maqsud All [1966] 1 Q.B. 688; [1965] 3 W.L.R. 229; [1965]
2 All E.R. 464, C C A .
Reg. v. Stevenson [1971] 1 W.L.R. 1; [1971] 1 All E.R. 678.

No additional cases were cited in argument.

RULING ^
On January 11, 1972, at the Central Criminal Court, before Shaw J.,
the defendants, Bernard Jack Robson, a detective inspector, and Gordon
Frederick Harris, a detective sergeant, of the Metropolitan Police, were
arraigned on an indictment. The prosecution intended to rely on some
13 tape recordings which had been made as a result of arrangements by
Garry Lloyd and Julian Mounter, two reporters on the staff of " T h e £
Times," who had also arranged for the subsequent safe custody of the
recordings. The defendants intimated objection to admissibility of the
recordings. After the jury had been empanelled and in their absence,
the court held an inquiry into admissibility, some 10 days being occupied
with evidence. The ruling was given on January 26, 1972, The reasons
were reserved.
F
James Comyn Q.C. and Israel Finestein Q.C. for the defendant Robson.
Roger Frisby Q.C. and Jeffrey Thomas for the defendant Harris.
John Mat hew and Richard Du Cann for the Crown.

Cur. adv. vult.

March 22. SHAW J. On January 11, 1972, when the two defendants
had been arraigned counsel intimated that objection was taken
to the admissibility of tape recordings which were a prominent
part of the evidence for the prosecution. In all the circumstances
it appeared expedient that the question of admissibility should be
decided before the case was opened to the jury. Accordingly I heard
evidence and argument in this regard in the absence of the jury but after H
they had been empanelled and sworn. On January 26 I ruled against the
objections but then gave no reasons since to have done so would have
meant expressing views on matters which the jury would have to decide
for themselves as to the authenticity and originality of the tape recordings.
The trial proper then proceeded and on March 3 the jury returned
verdicts of guilty against both defendants. There is now no possibility of
prejudice if I state the reasons which led me to reject the objections
 The Weekly Law Reports, May 5, 1972
653
1 VV.L.R. Reg. v. Robson (C.C.C.) Shaw J.
A which were taken and indeed, as there may be an appeal, it is desirable
that I give those reasons so that any point arising out of them may be
argued on behalf of the prospective appellants.
It was not contended that the tape recordings were, as such, inadmissible
evidence of what was recorded on them, The objections taken were put
under the following heads: first it was said that the recordings, being in
the nature of documentary evidence, must be excluded unless either (a)
B they were shown to be originals, or (b) the absence of the originals was
satisfactorily explained and it was shown that the recordings it was sought
to be put in evidence were true copies of those originals. This objection
was, of course, founded on the strict rule requiring that the best evidence
must be tendered or its absence accounted for before secondary evidence
can be received. The application of the rule in a trial by jury can give
Q rise to difficulties in delimiting the function of the judge in deciding
admissibility while at the same time avoiding any unnecessary or un-
warranted incursion into matters which go to cogency and weight which
are for the jury to consider and to decide. In the present case the tape
recordings were put forward by the prosecution as being the original
recordings.
The second head of objection was that the recordings the prosecution
D intended to produce were so defective as to be unreliable and misleading.
It was submitted that they were riddled with discontinuities; that they were
in many parts unintelligible; that some were of very poor quality and
that altogether they were so untrustworthy and suspect that their potential
prejudice far outweighed any evidential value they might have. Even,
therefore—so it was submitted—if the recordings were strictly admissible
g the court ought in its discretion to exclude them so as to ensure that no
injustice would be done to the defendants.
Counsel on both sides supported the proposition that it was for the
prosecution as the party seeking to put forward the recordings to prove
them to be originals and that the standard of proof in this regard was
the balance of probabilities. On this basis the judge must consider
all the evidence proffered by the prosecution and by the defence
F which might go to the question whether the recordings are originals or
not. The determination of the question is rendered the more difficult
because tape recordings may be altered by the transposition, excision
and insertion of words or phrases and such alterations may escape
detection and even elude it upon examination by technical experts.
I may say in passing that in a recent criminal trial, Reg. v. Stevenson
Q [1971] 1 W.L.R. 1, where a similar question arose it was contended that
the standard of proof of originality was that which applied to any issue
which had to be resolved by the jury in such a trial, namely, proof beyond
reasonable doubt. This is, of course, right if and when the issue does
come before the jury as a matter they have to decide as going to weight
and cogency. In the first stage, when the question is solely that of admissi-
bility—i.e. whether the evidence is competent to be considered by the jury
H at all—the judge, it seems to me, would be usurping their function if he
purported to deal with not merely the primary issue of admissibility but
what is the ultimate issue of cogency. My own view is that in considering
that limited question the judge is required to do no more than to satisfy
himself that a prima facie case of originality has been made out by
evidence which defines and describes the provenance and history of the
recordings up to the moment of production in court. If that evidence
appears to remain intact after cross-examination it is not incumbent on
 The Weekly Law Reports, May 5, J 972
654
Shaw J. Reg. v. Robson (C.CC.) [1972]
him to hear and weigh other evidence which might controvert the prima A
facie case. To embark on such an inquiry seems to me to trespass on
the ultimate function of the jury.
It is true that in determining whether an alleged confession is
admissible or not the judge has the duty of deciding a contentious issue
and he has to apply the same criteria as a jury would have to do; but
this is an anomalous case deriving from its own special history and from
considerations peculiar to confessions. It is perhaps worth noticing that, "
if in regard to an alleged confession the issue is not whether it was made
voluntarily but whether it was made at all, that question is solely for the
jury's determination; the trial judge has no part to play except to sum the
matter up to them.
Although in the present case the objection was taken on the question
of originality of the tape recordings, the real gravamen of the objection was c
an attack on their authenticity. This larger issue is manifestly one for the
jury in the same way as is the credibility of any witness although, of
course, the jury's consideration must be confined to evidence which is in
the first place admissible. However, for the purposes of this case I
accepted the proposition that I ought to conduct a comprehensive inquiry
into not only the history of the tapes but also their nature and condition
and that for this purpose I should hear evidence on both sides and decide
the question on the balance of probabilities in the light of all the material
before me. Accordingly, I heard a mass of evidence beginning with a
number of witnesses who, in support of the originality of the tapes, gave
evidence of their history from the actual process of recording up to the
time of their production in court. The testimony of those witnesses was
unshaken, so it appeared to me, and undiminished by cross-examination, E
Indeed, as it eventually appeared, there was no direct evidence to refute their
account of how the tapes first came into existence and how they had since
been in safe and secure custody without opportunity for fabrication or
tampering of any kind. At the conclusion of that evidence there was a
strong prima facie case for the originality of the recordings. As I have
already ventured to suggest, that was, as I see it, the apt and proper stage
at which to rule on the fundamental question of admissibility. If I had ^
then been called upon to make a decision on the evidence adduced by the
Crown I would have had no hesitation in overruling the objections, whether
as a matter of strict law or as a matter of discretion.
However, die matter proceeded and I listened to the evidence of four
experts whose examination of the tapes had led them to form views
adverse to their originality and indeed their authenticity. They were, of G
course, called on behalf of the defence. If their opinions were correct
this evidence ran counter to the factual evidence as to the history of the
tapes. The prosecution then called in rebuttal yet another expert who
disagreed with the opinions expressed by the defence experts and main-
tained that there were no indications in the tapes themselves which tended
to controvert the factual evidence of their origin. This exercise occupied i,
some two weeks. A similar one was undertaken by Melford Stevenson J.
in Reg. v. Maqsud Ali [1966]: 1 Q.B. 688 where not only the recordings
but the translation into English of conversations recorded in Urdu and
Punjabi was called into question. The judge was apparently reluctant to
take the course he did, as appears from a passage in the report of the
appeal in the Court of Criminal Appeal where Marshall J. giving the
judgment of the court said, at p. 703:
 The Weekly Law Reports, May 5, 1972
655
1 W.L.R. Reg. v. Robson (C.C.C.) Shaw J.
A " Here the judge was pressed to undertake an inquiry into the weight
of the evidence and although reluctant at first, he ultimately agreed
to do so. In the view of this court the cases must be rare where
the judge is justified in undertaking his own investigation into the
weight of the evidence which, subject to proper directions from the
judge, is really the province of the jury, but the court sees that there
can be cases—but they must be rare—where the issues of admissibility
" and weight can overlay each other. We think this was one of
those rare cases in which the judge was justified in doing what he
did."
The reluctance of Melford Stevenson J. derived from the fact that it
appeared to him that he was trespassing on the functions of the jury in
deciding on credibility and the weight of the evidence. It may be added
C that the recordings and the transcripts, with the appropriate warnings to
the jury, had in fact in that case been admitted. In Reg. v. Stevenson
[1971] 1 W.L.R. 1, to which I have already referred, Kilner Brown J. felt
himself obliged to hear evidence from both sides in order to decide whether
evidence in the form of tape recordings should be excluded on the ground
that they were copies. He too had misgivings as to where the line should
j) be drawn between matters going to admissibility and matters which really
went to weight and cogency. He said, at p. 3:
" Consequently in this case an extremely lengthy and detailed exam-
ination of the evidence has taken place upon the voire dire. This
examination has been conducted with very great care. It has been
highly technical and very scientific at times and extremely burdensome
for everybody engaged in this case. I interpolate to say that I have
been greatly assisted by the way in which this examination has taken
place, greatly assisted by those who had the technical duty of pro-
ducing it, to those who have given evidence and to counsel who have
probed that evidence before me. Nevertheless, as a general rule it
seems to me to be highly undesirable, and indeed wrong, for such an
investigation to take place before the judge. If it is regarded
F as a general practice it would lead to the ludicrous situation that in
every case where an accused person said that the prosecution evi-
dence is fabricated the judge would be called upon to usurp the
functions of the jury."
Kilner Brown J. went on to say:
" Notwithstanding the wide area over which this inquiry has ranged
G I intend to limit my approach to one single issue which in my view
is legitimately within the province of admissibility. It may be alter-
natively, if I am wrong in that, a question of discretion. I decide this
matter on the narrow but vital question as to whether or not the
so-called original tapes are established as original."
I would venture to qualify what the judge was there saying by inserting
the words " prima facie," so that it would state that the judge is called upon
to decide the narrow but vital issue whether or not the so-called original
tapes are shown prima facie to be original.
It may be difficult if not impossible to draw the philosophical or theoreti-
cal boundary between matters going to admissibility and matters going pro-
perly to weight and cogency; but, as I have already said, it is simple enough
to make a practical demarcation and set practical limits to an inquiry as
 The Weekly Law Reports, May 5, 1972
656
Shaw J; Reg. v. Robson (C.C.C.) [1972]
to admissibility if the correct principle is that the prosecution are re- A
quired to do no more than set up a prima facie case in favour of it. If they
should do so, the questioned evidence remains subject to the more
stringent test the jury must apply in the context of the whole case, namely,
that they must be sure of the authenticity of that evidence before they
take any account of its content. There is, so it seems to me, no danger
of injustice to an accused in such a procedure, for nothing could be more
damaging to, if not destructive of, a prosecution case than to have part of
the evidence on which it relies exposed in the face of the jury as fabricated
and contrived.
In the present case, having heard evidence in great detail on both sides
and having considered it in its totality, I arrived at the clear view
that, on the balance of probabilities, the tape recordings in question were
originals and authentic. Among other considerations I was impressed by c
what I considered the manifest truthfulness and reliability of the two
reporters on the staff of " The Times " who had arranged for the recordings
to be made and for their subsequent safe custody. During the course of
the evidence and argument on the issue of admissibility the recordings
were played back many times. In the end I came to the view that in
continuity, clarity and coherence their quality was, at the least, adequate to
D
enable the jury to form a fair and reliable assessment of the conversations
which were recorded and that, given an appropriate warning, the jury would
not be led into an. interpretation unjustifiably adverse to the defendants.
Accordingly, so far, as the matter was one of discretion I was satisfied
that no injustice could arise from admitting the tapes in evidence and that
they ought not to be excluded on this basis.
A further point taken on behalf of the defendants was that because of E
the. difficulties in identifying the words and expressions used by one or
other of those whose voices were recorded in certain parts of the record-
ings the transcripts prepared by the prosecution should not be furnished
to the jury. However, the evidence was that the transcripts reproduced
" so far as humanly possible " whatever the tapes contained that was at
all intelligible. There were passages which defied all efforts to construe
them and there were words and phrases differently understood by different F
listeners. However, as the jury would have their own opportunities (of
which they availed themselves with marked interest, attention and care)
of listening for themselves and as they would be warned to resolve any
doubtful passage by giving it the construction most favourable to the
defendants, it seemed to me that any chance of prejudice arising from pro-
viding the jury with the transcripts was non-existent, On the other hand Q
the inconvenience to everyone, as well as the potential danger to the
defendants arising from denying the use of the transcripts to the jury and
leaving them to recollect what they could loomed large indeed. On my
direction, therefore, the jury were provided with the transcripts prepared
for their use.

Ruling accordingly.

Solicitors: Kingsley, Napley & Co.; Montague, Gardner & Howard;

Director of Public Prosecutions.
L. N. W.