Law Report: Unverified note cannot be used to refresh memory: Regina v Eleftheriou and another - Court of Appeal (Criminal Division) (Lord Justice Nolan, Mr Justice Swinton Thomas and Mr Justice Colman), 18 February 1993

A witness cannot refresh his memory from a note made by another person unless the witness had verified the accuracy of the note at the time it was made by either reading it or having it read back to him.

The Court of Appeal gave reasons for allowing appeals by the apellants, Costas Xidious Eleftheriou and Lefterakis Eleftheriou, against convictions for being knowingly concerned in the fraudulent evasion of value added tax.

It was alleged that the appellants, who are father and son, suppressed or understated the income of Grimsby Fisheries, a fish and chip restaurant and take-away business run by them. The case was based mainly on observations over 10 months by Customs officers of persons using the restaurant and purchasing take-away food. On the basis of the observations it was calculated that the appellants' income was suppressed by some 50 per cent in their value added returns.

The Customs officers worked in pairs, one observing and calling out what he saw and the other writing it down. They exchanged roles every hour. The writer would not see what the observer saw and the observer would not see what the writer wrote down. None of the officers checked that the results of his observations had been accurately recorded.

Judge Brunning, at Leicester Crown Court, ruled that the officers were allowed to refresh their memories from the written records or logs. The officers did not refer to the logs but instead produced schedules showing the arithmetical totals of the meals and take-aways listed in the logs as having been sold.

The appellants appealed on the ground that the officers should not have been allowed to refresh their memories in the manner adopted.

A T Smith QC and Nadia Sharif (Millhouse & Rumble, Leicester) for the appellants; Graham Buchanan (Customs & Excise Solicitor) for the Crown.

LORD JUSTICE NOLAN, giving the judgment of the court, said that in R v Kelsey (1981) 74 Cr App R 213 a witness was allowed to refresh his memory from a note made at his dictation to a police officer because the officer had read it back to the witness and the witness had verified the note. Judge Brunning referred to Kelsey and decided that, under the process whereby an officer observed that entries were recorded, the entries were verifified as far as they could be in the circumstances.

The judge had gone too far. There was simply no verification by the observer of what the writer wrote down. The use by the witnesses of the schedules drawn from the logs for the purposes of refreshing their memory was a material irregularity in the trial. It was also wrong to admit the logs under section 24 of the Criminal Justice Act 1988. The court doubted whether it would ever be proper for such logs to be admitted under section 24 in a manner which would effectively circumvent the rule in Kelsey. The appeal was allowed.

Ying Hui Tan, Barrister