G20 policeman's trial in balance over missing 'victim'

The trial of a police officer accused of assaulting a G20 protester was hanging in the balance today after the alleged victim failed to turn up to give evidence.

Metropolitan Police sergeant Delroy Smellie, 47, was due to go on trial charged with common assault by beating Nicola Fisher on April 2 last year.

But City of Westminster Magistrates' Court heard Ms Fisher was "unwilling" to attend court and prosecutors have been struggling to contact her.

Prosecutor Nick Paul said the case could go ahead using a witness statement she gave to the Independent Police Complaints Commission (IPCC) alongside video and photograph evidence.

But Smellie's solicitor Lisa Wilding said it would be unfair to use Ms Fisher's important evidence without being able to question her about it.

District Judge Daphne Wickham ruled that Ms Fisher's witness statement could not be read to the court as it is "not in the interests of justice".

The court heard that Ms Fisher's former boyfriend Gavin Shepherd, who was due to be a witness, also failed to attend court.

The judge adjourned the case for prosecutors to make further inquiries about his whereabouts. The trial was due to be heard without a jury.

The court heard that Ms Fisher was "unwilling" to attend but has been represented by Max Clifford, and given media interviews and evidence to the Home Affairs Committee.

Mr Paul said Ms Fisher knows she is required in court as a witness summons was posted through her door after colleagues contacted her by telephone at the weekend.

The prosecutor said her former boyfriend, who witnessed the confrontation from a short distance, had "gone off the scene" and has only just been contacted.

The court heard that Ms Fisher claims to have been suffering from depression and has shown a doctor's note to an official from the IPCC at her home in Brighton.

Ms Wickham was told Ms Fisher was planning to see a doctor this afternoon and an application may be made for an adjournment depending on her "fitness to attend".

The judge said there was evidence that Ms Fisher has been "nervous and wary" of the court process since the beginning of February and that she has doubts in the abilities of prosecutors.

Ms Wilding said a doctor's note intended for work was "inadequate" and she would require disclosure of all medical notes about the witness's condition.

She said: "We submit that a line has to be drawn. This is too little and too late and it is inadequate."

The defence solicitor added: "The defendant, as with all others, deserves some finality about the state of proceedings in a case he has to meet."

Evidence of the clash outside the Bank of England during a vigil following the death of Ian Tomlinson was revealed during several hours of legal argument.

The court heard the incident was caught on video and posted on the internet site YouTube, leading to a large amount of media interest. Several photographs also emerged.

The footage showed Smellie shouting at Ms Fisher, pushing her back, striking her with the back of his hand and hitting her across the thigh with his baton.

Mr Paul said Ms Fisher may be reluctant to attend court because the defence may "attack her character" by focusing on her lifestyle and background.

Speaking about the prosecution case, Mr Paul said: "The issue in this case is whether or not when Mr Smellie struck Ms Fisher he was doing so in self-defence.

"The evidence that we submit fully and really extensively covers the relevant circumstances.

"To put it in a nutshell, that material calls for an explanation and that explanation is contingent on the factors that Sergeant Smellie perceived them to be at the time.

"You will see from the opening note in which I summarise the interview, essentially his case is he became aware of this woman, he pushed her back.

"She came forward again, he delivered the clearance swipe and she came forward again and that is the extent of his contact with her prior to the confrontation between them, which is graphically demonstrated in material before the court."

Mr Paul added that the officer's defence team want to question Ms Fisher's reliability as a witness.

He said: "They, without beating about the bush, wish to explore with her the fact she was aggressive, vocally confrontational and provocative in the moments up and until the physical confrontation.

"She does not describe herself as doing anything other than being caught up in the interface between police and the crowd when Sgt Smellie tells the crowd to get back.

"What the defence seek to do is establish that she was effectively trying to seek a confrontation with the police and in particular with Sgt Smellie."

Mr Paul said the judge must decide whether her demeanour and any provocation could justify the officer's actions.

Ms Wilding said Ms Fisher is clearly an "unwilling and reluctant witness" and described the circumstances as "highly unusual" because of the interviews she gave.

She said the case focused on Smellie's use of his baton to hit her thigh as the "back-hand strike is not said to be unlawful".

The solicitor said: "Mr Smellie is charged with an offence, the defence to which is he was acting lawfully in self-defence both of himself and colleagues who were posted with him.

"The question arises whether the degree of force used against a person was reasonable in the circumstances."

Ms Wilding said her client does not accept that the video "speaks for itself" and said questioning Ms Fisher is the "essence" of his defence.

The legal argument was continuing.

Start your day with The Independent, sign up for daily news emails
ebooksA special investigation by Andy McSmith
Life and Style
A picture taken on February 11, 2014 at people walking at sunrise on the Trocadero Esplanade, also known as the Parvis des droits de l'homme (Parvis of Human Rights), in front of the Eiffel Tower in Paris.
techGoogle celebrates Paris's iconic landmark, which opened to the public 126 years ago today
Scientists believe Mercury is coated in billions of years’ worth of carbon dust, after being ‘dumped on’ by passing comets
Cleopatra the tortoise suffers from a painful disease that causes her shell to disintegrate; her new prosthetic one has been custom-made for her using 3D printing technology
newsCleopatra had been suffering from 'pyramiding'
Arts and Entertainment
Coachella and Lollapalooza festivals have both listed the selfie stick devices as “prohibited items”
  • Get to the point
Latest stories from i100
Have you tried new the Independent Digital Edition apps?

Day In a Page

No postcode? No vote

Floating voters

How living on a houseboat meant I didn't officially 'exist'
Louis Theroux's affable Englishman routine begins to wear thin

By Reason of Insanity

Louis Theroux's affable Englishman routine begins to wear thin
Power dressing is back – but no shoulderpads!

Power dressing is back

But banish all thoughts of Eighties shoulderpads
Spanish stone-age cave paintings 'under threat' after being re-opened to the public

Spanish stone-age cave paintings in Altamira 'under threat'

Caves were re-opened to the public
'I was the bookies’ favourite to be first to leave the Cabinet'

Vince Cable interview

'I was the bookies’ favourite to be first to leave the Cabinet'
Election 2015: How many of the Government's coalition agreement promises have been kept?

Promises, promises

But how many coalition agreement pledges have been kept?
The Gaza fisherman who built his own reef - and was shot dead there by an Israeli gunboat

The death of a Gaza fisherman

He built his own reef, and was fatally shot there by an Israeli gunboat
Saudi Arabia's airstrikes in Yemen are fuelling the Gulf's fire

Saudi airstrikes are fuelling the Gulf's fire

Arab intervention in Yemen risks entrenching Sunni-Shia divide and handing a victory to Isis, says Patrick Cockburn
Zayn Malik's departure from One Direction shows the perils of fame in the age of social media

The only direction Zayn could go

We wince at the anguish of One Direction's fans, but Malik's departure shows the perils of fame in the age of social media
Young Magician of the Year 2015: Meet the schoolgirl from Newcastle who has her heart set on being the competition's first female winner

Spells like teen spirit

A 16-year-old from Newcastle has set her heart on being the first female to win Young Magician of the Year. Jonathan Owen meets her
Jonathan Anderson: If fashion is a cycle, this young man knows just how to ride it

If fashion is a cycle, this young man knows just how to ride it

British designer Jonathan Anderson is putting his stamp on venerable house Loewe
Number plates scheme could provide a licence to offend in the land of the free

Licence to offend in the land of the free

Cash-strapped states have hit on a way of making money out of drivers that may be in collision with the First Amendment, says Rupert Cornwell
From farm to fork: Meet the Cornish fishermen, vegetable-growers and butchers causing a stir in London's top restaurants

From farm to fork in Cornwall

One man is bringing together Cornwall's most accomplished growers, fishermen and butchers with London's best chefs to put the finest, freshest produce on the plates of some of the country’s best restaurants
Robert Parker interview: The world's top wine critic on tasting 10,000 bottles a year, absurd drinking notes and New World wannabes

Robert Parker interview

The world's top wine critic on tasting 10,000 bottles a year, absurd drinking notes and New World wannabes
Don't believe the stereotype - or should you?

Don't believe the stereotype - or should you?

We exaggerate regional traits and turn them into jokes - and those on the receiving end are in on it too, says DJ Taylor