England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		30th April 1997

MR JUSTICE SEDLEY: The appellant, Matthew Vaughan, appeals with leave against a conviction for robbery before Assistant Recorder W J Jones at Snaresbrook Crown Court on 23rd August 1996. He was sentenced to four years' imprisonment and if he was rightly convicted four years was not a day too long. The question for us is whether identification evidence associated with the crime was properly introduced into the trial.

On 1st March 1996 at about 8.10 pm a woman was mugged in the street in east London by a young man who made off with her shoulder bag. In it were her credit cards and either £40 or £50 in £10 notes. The young man, who was seen to be black but not otherwise identified with any particularity in the evidence before the court, was seen to run to a waiting car, a red Datsun Sunny, which was standing empty with its engine running, and to drive off at speed. A bystander, Amjad Ali, observed all these details and noted the registration number on a piece of paper. The police were called and circulated the number with the result that a red Datsun Sunny bearing the number noted by Mr Ali and with the defendant at the wheel was stopped some ten minutes after the robbery not very far from the scene of it. What was more the defendant had £50 in £10 notes on him. When asked he told the police that he had been driving for the last ten minutes but that he had come from his mother's house and had not passed the immediate scene of the crime. Very soon afterwards the shoulder bag was handed in with both the cash and the credit cards missing.

It might well have been thought that the police at the moment of stopping and searching the appellant had enough evidence to found a reasonable suspicion that it was he who had committed the robbery, even though the appellant asserted to them that he had been at his mother's house and had not passed the scene of the robbery. Unfortunately what then happened was that the officers who had first responded to the call brought Mr Ali along to the scene of the arrest. They told Mr Ali that the man he had seen might or might not be there, but what he was then unavoidably shown was the appellant, a young black man, standing between two police officers near a red Datsun Sunny bearing the number which Mr Ali had written down shortly before. That in these circumstances he identified the appellant as the culprit was hardly surprising.

At the start of the trial counsel applied to the Assistant Recorder pursuant to section 78 of the Police and Criminal Evidence Act 1984 to exclude the evidence of this roadside identification. The Assistant Recorder in a most careful ruling which examined all the extant authorities declined to do so. He accepted that the circumstances were unfortunate and that it was doubly unfortunate that no note had been made, or at least had survived, of the roadside identification. But he indicated that he would try to redress the balance with a very full Turnbull ruling. When he came to sum up he did so. By then the appellant had given evidence advancing an alibi defence, giving an innocent explanation of the source of the cash found on him and asserting, first, that he had been mistakenly identified by Ali and then that Ali in fact knew him and had maliciously identified him.

No note had been taken of Mr Ali's identification or description of the culprit before the confrontation took place; or if there had been it had been mislaid and was not available at trial. The significance of this will become apparent in a moment when we turn to the requirements of the Code to the Act of 1984.

In his summing-up the Assistant Recorder began by telling the jury that had Mr Ali not made the identification then the appellant would have been released. Assuming, as we will do, that this had been said in evidence, we cannot possibly accept it as correct. Of course if Mr Ali had said that this was not the man he might well have had to be released, but for the rest, with or without Mr Ali's identification, the case against the appellant was already securely at a level of reasonable suspicion sufficient to warrant arrest.

The Assistant Recorder introduced the material part in his summing-up, however, with these words:

"Now, this is a case that depends not wholly on identification, it is not just the identification of the defendant, whether it is right or wrong, by Mr Ali. It also depends on the numberplate of the car, but nonetheless, the important part, or a very important part is the identification of the defendant."

The Assistant Recorder then went on over five more pages of transcript to point out in Turnbull fashion every conceivable factor capable of casting doubt on an apparently reliable identification (light, speed of events, lack of prior description, racial complications, and so forth) - except the single crucial fact that the appellant had been in effect presented to Mr Ali at the roadside as the sole possible candidate for identification.

Mr Conning, for the appellant, in these circumstances puts the appeal in two ways. First, he submits the Assistant Recorder erroneously treated the appellant as an "unknown" suspect - that is to say under the PACE code a suspect about whom the police do not have enough information to justify an arrest - and therefore admitted the roadside identification in lieu of an identification parade which would ordinarily have followed. Secondly, he submits, even if this was the case of an "unknown" suspect, the identification evidence should have been excluded for the want of any note of a prior description given by Mr Ali.

The basis of the first of these grounds is already evident from what we have already set out. The second arises from the fact, which we have mentioned, that the single police officer to give evidence of the two that first attended had lost his original note and the copy he produced included neither a description of the offender nor a note of the car number.

Code D to PACE requires the identification of a "known" suspect, that is, according to note 2E, one whom there is already sufficient reason to suspect of the crime in question, to await in the ordinary way the opportunity of a parade where witnesses' recollections and powers of observation can be fairly put to the test. Where, however, it is still uncertain whether sufficient grounds exist for the suspicion required to create a power of arrest, the Code permits an ad hoc identification. For such situations, however, paragraph 2.17 of the Code D makes this provision under the rubric "Cases where the identity of the suspect is not known". The text reads:

"A police officer may take a witness to a particular neighbourhood or place to see whether he can identify the person whom he said he saw on the relevant occasion. Before doing so, where practicable a record shall be made of any description given by the witness of the suspect. Care should be taken not to direct the witness's attention to any individual."

We remind ourselves that for this court, as for the Assistant Recorder, the governing provision as to the admission of such evidence obtained in breach (as it undoubtedly was) of this paragraph is section 78 of the Police and Criminal Evidence Act. Subsection (1) reads:

"In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

In the case of Hickin and others, of which we have a transcript, in a judgment delivered by this court on 8th March 1996 the court reviewed the authorities governing this question. It will not be of assistance to set out in detail the reasoning of Mitchell J, speaking for the court, to which we are indebted for its exposition of the court's approach to cases such as the present. We do respectfully adopt two passages of his judgment. At page 14 of the transcript he says, having reviewed four of the leading cases on the topic:

"(QUOTE UNCHECKED - DOCUMENTS UNAVAILABLE) What each of the four cases illustrates is that Code D is not to be interpreted in such a way as to require the police to act in a manner which would be an affront to commonsense."

Then after he reviewed in detail the facts of the cases before the court, Mitchell J said this at page 25:

"(QUOTE UNCHECKED - DOCUMENTS UNAVAILABLE) We have declined to tie the hands of the police by restricting their options to perpetrators of serious crime identified very soon after the crime has been committed. They must of course have paragraph 2.17 well in mind. But what they must also have well in mind is that the admissibility of identification evidence may be challenged under section 78 if they adopt a course which deprives the suspect of all the safeguards provided by an identification parade. At the very least the information they receive must be recorded, as must the precise steps which are taken. Where there is more than one witness it may well be advisable to reserve one or more than one for an identification parade. Each case will depend upon its precise circumstances. Certainly a very valuable, we hesitate when dealing as we are now with generalities to say essential prerequisite is where practicable to have some record of a witness's description of a culprit before embarking on an informal identification exercise such as this. That at least provides some yardstick for testing the accuracy in any subsequent identification and it precludes the recording in a later witness statement of a description which may in reality almost certainly would be based upon or coloured by the appearance of the suspect at the time of identification."

In this court's view all of that passage has a clear bearing on the present case.

In spite of our own view that the police had quite enough evidence to arrest the appellant without confronting Mr Ali with him, we would be reluctant to criticise officers who had to take a decision on the spot in the knowledge that whatever they did they were likely to be criticised by lawyers on one side or the other for not doing the opposite. This court's task is certainly not to turn every pursuit and apprehension by the police into an exam question; but it is to ensure that the PACE codes are taken seriously and are respected. In our judgment accordingly the Assistant Recorder did not need to embark on a critique of the police officers' judgment any more than we propose to do so. What mattered then and what matters today is that if a roadside identification was to be undertaken Mr Ali should first have been asked for a brief description of the man he had seen and the officer's note of it should have been made available at trial. This provision of the Code is not mere bureaucracy: it affords the best safeguard that has so far been devised against the possibility of auto-suggestion when officers on the spot reasonably judge a confrontation to be needed in order to firm up suspicion to the point required for an arrest. For this reason the Assistant Recorder should in our view have excluded the evidence of the roadside identification. We do not accept for a moment that without it there would have been no case to go to the jury; the case was still a strong one. But letting it in introduced an element of reinforcement of the Crown's case which had superficial attraction but which lacked the safeguards spelt out by Code D. In the event, too, it was presented in the Assistant Recorder's summing-up without pointing out to the jury the particular risk created by a confrontation identification. Section 78 is there precisely to ensure that mistakes like this in the investigation process do not jeopardise the ultimate fairness of the trial.

We have considered whether, despite this, the case against the appellant was not so clear and strong that a conviction is nevertheless safe. We are unable to say that it is so. He was entitled to have a fair presentation of the case against him, shorn of matter which should not have been admitted, and to have his defence heard in that context. We therefore propose to allow this appeal and will hear counsel upon what course should now be taken in relation to the case.

LORD JUSTICE McCOWAN: Specifically we want to have any help you want to give us in deciding whether or not to order a retrial.

MR JUSTICE OGNALL: How long has your client been in custody altogether, Mr Conning?

MR CONNING: I make it eight months and two months beforehand.

MR JUSTICE OGNALL: Was he not in custody from the time of his first arrest?

MR CONNING: He was, then he was admitted to bail. He was admitted to bail in the April prior to the August, so he did about six weeks in custody.

MR JUSTICE OGNALL: He has had how long altogether in custody?

MR CONNING: Just under ten months.

MR JUSTICE OGNALL: Thank you.

LORD JUSTICE McCOWAN: Yes. Is there any other factor you want to refer to?

MR CONNING: Well, the two factors the court considers I think are length of time in custody combined with passage of time since commission of offence and of course that is relatively short at the moment.

MR JUSTICE SEDLEY: You do not suggest any other contra-indication of a retrial?

MR CONNING: I do not give any other factor that would assist you.

LORD JUSTICE McCOWAN: Is there any other point you want to raise on it?

MR CONNING: I can only say the trite comment, of course, that a further trial preceded by a period in custody which may well occur would put the defendant under----

LORD JUSTICE McCOWAN: He would not like it, obviously.

MR CONNING: No, some further disadvantage.

LORD JUSTICE McCOWAN: That we assume.

MR CONNING: Is there any other point I have not addressed myself to?

LORD JUSTICE McCOWAN: You must make your mind up about that yourself. What do the Crown say?

MR PEACOCK: I do not think there is anything I can add in the circumstances.

MR JUSTICE SEDLEY: Do you want a retrial?

MR PEACOCK: It is not something I have taken instructions on.

MR JUSTICE OGNALL: Is there any reason why there should not be a retrial?

MR PEACOCK: My Lord, no.

LORD JUSTICE McCOWAN: Are there any missing witnesses or anything of that sort?

MR PEACOCK: Not that I have been told about.

LORD JUSTICE McCOWAN: The only real point put against a retrial is that the appellant has been in custody for eight months. Nothing else is suggested against it, for example that witnesses have died, or cannot be found, or anything of that nature. It seems to us there is no reason why this man should not have a perfectly fair retrial and if he is convicted then the time he has spent in custody this time will be a matter to take into account. We think there should be a retrial.

There are various questions that have to be gone into. First of all, a fresh indictment. A fresh indictment has to be preferred. We have to set a time for that. It is usually 14 or 28 days. Is there any difficulty with 28 days?

MR PEACOCK: My Lord, no.

LORD JUSTICE McCOWAN: Obviously the trial should take place as soon as possible. We say the indictment to be preferred within 28 days. A very important question is whether to grant bail or not. What do you say Mr Conning?

MR CONNING: He was on bail previously for about four months with a condition of residence and his mother, who is an employee of Tate and Lyle's and who stood surety. The figure was either £1,500 or £2,000. The defendant of course surrendered to bail and fulfilled his obligations.

LORD JUSTICE McCOWAN: Where is he living now, if he has anywhere?

MR CONNING: Would you bear with me while I find out his home address?

LORD JUSTICE McCOWAN: While you are doing that, Mr Peacock what do you say? Is bail opposed?

MR PEACOCK: Yes, for the reasons which must have been advanced at an earlier stage of the proceedings although at some stage it appears that a court granted bail. In my respectful submission one must take the view that this is a serious offence, it is an alleyway mugging of a lone woman at night, and in the circumstances one might expect the defendant, if convicted, to receive a substantial custodial sentence and therefore there must be a real fear he would not attend his trial.

LORD JUSTICE McCOWAN: Do you accept that when he was on bail last time there was nothing faulty about his behaviour? He did not try to abscond or anything like that?

MR PEACOCK: I accept he turned up at his trial.

MR CONNING: My Lord, that is of course the best answer the defendant can give. He committed no offence in the interim and attended his trial as ordered. The address he was on bail to was 17 Albion House, Church Street, North Woolwich, London E16.

LORD JUSTICE McCOWAN: Mr Peacock, there is also the question of his record. We gather from what we have heard today, we did not know that in advance, that he has one. Have you details of the record?

MR PEACOCK: It does not form part of my instructions, regrettably.

MR JUSTICE SEDLEY: How can you come to court Mr Peacock without instructions about whether there should be a retrial or not if the appeal were allowed, or therefore as to bail if there should be a retrial?

MR JUSTICE OGNALL: And without the benefit of anybody behind you today in a conviction appeal?

MR PEACOCK: I do not have anybody behind me today. I can only apologise for my lack of preparedness.

LORD JUSTICE McCOWAN: You should insist on some assistance. Why should you carry all the blame? Mr Conning, what do you say about his record? That is a factor, is it not?

MR CONNING: I am searching through the file to see if I can find it to assist the court.

LORD JUSTICE McCOWAN: You must have had antecedents at the hearing.

MR CONNING: I am certain I did. I simply have not got it. However, I have the further details of the conditions he was subject to. The conditions of bail were a surety of £2,000 and to report to his local police station on Saturdays between 3 and 5.

MR JUSTICE SEDLEY: You do not have any details of antecedents?

MR CONNING: It is very strange, but they do not appear to be here. I can remember he had been sentenced to two years' imprisonment.

LORD JUSTICE McCOWAN: I have been handed something now.

MR CONNING: In 1993. That was the serious matter on his record.

LORD JUSTICE McCOWAN: 1989, threatening behaviour. Again in 1989, theft of a motor vehicle. In 1990, burglary with intent. In 1993, theft. And then, more recently, in 1993 at the Central Criminal Court for burglary, possession of a firearm, handling stolen goods and taking a conveyance he was given a total of two years' imprisonment. That was in August 1993.

MR CONNING: My Lord, yes. I anticipate his release from prison in August 1994. He had been on bail in that matter as well, it is fair to say, and had not committed any offence while on bail I am informed.

LORD JUSTICE McCOWAN: Possession of a firearm is somewhat disturbing, is it not?

MR CONNING: This case I had no dealings with. I asked him about it prior to his sentence on this matter when in fact the facts of that were not opened by the Crown, so I have no independent confirmation. Apparently this was some kind of weapon that was taken from the burglary, that he was in possession of with the other items when arrested. I cannot assist.

LORD JUSTICE McCOWAN: He was stopped driving a car in Forest Gate. He had a quantity of television sets, video recorders, hi-fis, all that sort of stuff and in addition two imitation firearms - pistols - were found in the front of the vehicle.

MR CONNING: Thank you for that assistance. I am grateful for that information. I cannot advance the matter any further.

LORD JUSTICE McCOWAN: Yes, very well.

MR CONNING: In terms of bail, since his release on that date, August 1994 apparently, this is the only matter that arises. No problem arose whilst he was on bail.

LORD JUSTICE McCOWAN: We have come to the conclusion it would not be right in this case to grant bail. Bail is refused.

We should have stated earlier at what court the matter should be retried and we say it should go back to Snaresbrook. There is no reason otherwise so far as we know.

MR CONNING: My Lord, no.

LORD JUSTICE McCOWAN: Legal aid for the trial. I assume you want it?

MR CONNING: Yes, my Lord.

LORD JUSTICE McCOWAN: You do not need a solicitor, do you?

MR CONNING: I think it might assist.

LORD JUSTICE McCOWAN: What for and by what means?

MR CONNING: It may be that some transcript of evidence could be obtained and again it is a question of witnesses attending. You will recollect the defendant called two alibi witnesses.

LORD JUSTICE McCOWAN: His mother and his girlfriend. Is he not still in touch with them himself to ask them to come?

MR CONNING: Well if he is going to be in prison it always creates a possible problem.

MR JUSTICE OGNALL: That is more illusionary than real. There is no impediment upon him asking his mother and his girlfriend to attend. If you want transcripts why do you not identify them now and seek the direction of this court about it?

MR CONNING: Yes. On the point about attendance of witnesses doubtless it would help to have a solicitor present to organise that. There will be of course some considerable problem if for any reason at all circumstances are difficult.

LORD JUSTICE McCOWAN: Is there any other witness except the mother and the girlfriend?

MR CONNING: No. The girlfriend has just given birth to a second child two weeks ago. She is at court today. Clearly some arrangements will have to be made now to assist her as well.

LORD JUSTICE McCOWAN: No solicitor. One counsel only. What transcripts could you possibly want?

MR CONNING: The evidence of Amjad Ali is the only significant evidence in the case. I would not like to waste money by asking for it immediately, but to check my notes and see whether there is any area combined with the notes of the solicitor's clerk that might require transcripts. If the court is prepared to give me seven days I could put in a written application.

LORD JUSTICE McCOWAN: Apply to the Registrar if you think you need any transcripts but you will have to give some good reasons because it will be recorded no doubt. As far as we can see with the possible exception of Mr Ali none would be needed.

MR CONNING: I quite agree.