England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		27th January 1997

MR JUSTICE DYSON: On 19th March 1996, at the Snaresbrook Crown Court, before Mr. Recorder Hayward and a jury, the appellant was convicted of charges of wounding with intent and unlawful wounding, which had been respectively counts 1 and 2 on the indictment. The jury had been asked to deliver verdicts on both counts, although they were alternative counts relating to the same incident. On 19th April 1996 the appellant was sentenced to 2 years' imprisonment on count 2. No sentence was passed on count 1.

He appeals against conviction by leave of the Single Judge.

The facts are these. The principal witness for the prosecution was a Mr. Andre Compton. He gave evidence that in the early hours of 5th August 1995, he was in a nightclub, known as The Garage, in Holloway Road, London. He was dancing at the edge of the dance area when he noticed one of a group of men at the edge of the floor about 6 feet away. Mr. Compton had this group in his view for about 10 minutes. He noticed one man with tied back long hair and a beer in his hand. He wore a T-shirt. Out of the corner of his eye Mr. Compton saw the man come from his right, lunge forward, as if performing a fencing movement, and stab him in the right leg.

Mr. Compton stood and stared hard at the man for 2 to 3 seconds. He looked at the man's face and saw his long hair and tattoos on his forearm. He had no doubt that the arm which had stabbed him belonged to the man whose face he saw.

Mr. Compton went to the foyer. The police were already there because of other earlier incidents. He returned to the dance floor with an officer but he could not see his assailant. He then went to the office which was off the foyer for first aid. An officer called him out into the foyer to see if he could identify his assailant. He immediately recognised him as the person who was standing opposite the office door, against the wall, between two uniformed officers. Mr. Compton shouted "that's him" or words to that effect. He then lunged at the man, who was the appellant, and had to be restrained.

He was cross-examined at some length as to the conditions in the club and as to his own state at the time. When pressed, he stated that the appellant had been separated from the others in the foyer. He had mentioned the tattoos to the police but agreed he had not done so at committal. He insisted he had the right man, who had a "striking inane grin". He also agreed there were others at the club who had ponytails but he had not seen anyone else with tattoos.

Two of Mr. Compton's friends gave evidence. The remaining prosecution evidence came from police officers. The police evidence was of particular importance, because the first ground of appeal is that the evidence of identification by Mr. Compton, when he saw the appellant with the two uniformed officers, should have been excluded by the learned Recorder under section 78 of the Police and Criminal Evidence Act.

A voir dire was held. The conclusions of the Recorder were as follows: the police faced a very difficult situation. They had been told of two stabbing incidents, and knew that Mr. Compton felt able to identify his assailant. All the people in the club were therefore potential suspects. The Recorder held that the officer in charge Inspector Ball, had devised the only practicable way of attempting to identify the assailant. This was to close down the club, seal the exits and get all the customers to leave through the foyer so that they could be observed by Mr. Compton.

Arrangements had been made for Mr. Compton to be in an office just off the foyer area and to watch the people leaving. Police Constable Feukes had been given a description by Mr. Compton that the assailant was long haired and had tattoos. This officer saw the appellant, whom he thought matched that description. At that point another police officer asked Mr. Compton to step into the foyer and to say whether the man who was being held by Police Constable Feukes was his assailant.

Mr. Compton thereupon made his identification in the way we have already described. It was submitted to the Recorder, first, that Code D:2 of the Codes of Practice applied and that there had been substantial breaches of it, so that the evidence of identification should be excluded under section 78 of the Act. Alternatively, that the evidence should be excluded under that section even if Code D:2 did not apply. These submissions have been repeated before us this morning.

The learned Recorder found that Code D:2 did not apply, and that there had been no breach of the provisions of the Code. In any event, he exercised his discretion under section 78 of the Act not to exclude the evidence of identification. In a careful judgment the learned Recorder explained why in his judgment Code D:2 did not apply. He said that the Code does not appear at first glance to cover the situation where the police have detained a possible suspect in the vicinity and within minutes of a crime being committed, and wish to know whether a witness can identify a person or eliminate him or her from their enquiries. He referred to a number of authorities, including

R v. Oscar [1991] Crim.L.R. 778. and R v. Rogers [1993] Crim.L.R. 386. Those authorities do support the proposition that the Code should not be taken as applying to circumstances such as those that occurred in the instant case. A further authority substantially to the same effect has been cited to us this morning, that is the R v. Hickin [1996] Crim. L.R. 584.

In his submissions to us this morning, Mr. Baur has not sought to argue with any more vigour than he did before the learned Recorder that the provisions of D:2.1 applied. He submits, however, that the provisions of D:2.17 applied. That is in these terms:

"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, when practicable a record should be made of any description given by the witnesses or suspect. Care should be taken not to direct the witness' attention to any individual."

Mr. Baur has in particular highlighted that last sentence because, as he submits in this case, the attention of Mr. Compton was directed to the appellant.

As we have already stated, we are inclined to the view that Code D did not apply to the facts of this case. Even if that is wrong, however, as has been properly conceded on behalf of the appellant, that was not in any way determinative of the question that faced the Recorder, which was whether to exclude the evidence under section 78.

The way in which the learned Recorder dealt with that was as follows:

"As to the second submission, in my view the facts of this case are analogous to the sort of street identification considered in the cases I have mentioned. PC Fewkes detained a man who might have matched the description given by Mr. Compton. It was, in my view, entirely reasonable, in the circumstances of this case, for the Police to try and ascertain whether Mr. Compton could identify the man, or whether the man should immediately be released, and further observation carried out on the people leaving the club. I see no real difference between the Police saying to Mr. Compton in this case, 'Is this the man who attacked you?' and cases envisaged by the cases of Kelly and Rogers, where witnesses taken to a person, being held by the Police, near the seen of a crime to see if the witness recognises that person. In both cases, it could be said that the Police had drawn the witness's attention to an individual, but in such cases I do not consider asking the witness, 'Is this the man?' in any way to be unfair, or improper. It seems to me that if the Police could not ask such a question in such a situation, their ability to arrest offenders would be seriously impaired. Section 78 requires the Court to consider all the circumstances of the case, and not just the circumstances in which the identification is made. And, in considering all the circumstances of the case, one has to have regard to the circumstances facing the Police at the time of this investigation and the sort of investigation which those circumstances forced upon them. Having regard to all those circumstances, I reject the submission that the admission of this evidence would have such an adverse effect on the fairness of the proceedings that it should be excluded. The Jury will, of course, be directed in due course as to the problems and risks identification evidence and, in particular, where, as in this case, the person identified has already been stopped by the police."

In our judgment, the learned Recorder directed himself entirely properly as to the approach to the problem of applying section 78. This was a conclusion which, within the scope of his discretionhe was entitled to reach. We should add for completeness that, as foreshadowed in the extract from the judgment which we have just quoted, when he summed up the case, the learned Recorder did indeed draw to the jury's attention, the risks inherent in an identification which was made as in this case, where attention was drawn to Mr. Compton of the appellant. Accordingly we reject the first ground of appeal.

The second ground of appeal is that the identification evidence was poor, and there being no supportive evidence, the case should have been withdrawn from the jury in accordance with the principle laid down in R v. Turnbull. It is common ground that there was no supportive evidence. The weaknesses of the identification evidence were fully dealt with by the Recorder in his summing-up, in the transcript between pages 14C and 17A. It is unnecessary to refer to that passage.

In his ruling the Recorder said this, at page 4D:

"...the quality of the evidence in this case, notwithstanding the weaknesses pointed out by Mr. Baur, is sufficiently good for the question to be left quite properly to the Jury. This is not a fleeting glance case where a witness perhaps sees somebody only momentarily leaving the scene of a crime, or drive past in a car. Nor is it a case where the identifying witness observes something from a distance, perhaps across a street or across a supermarket aisle, or across some gardens. Mr. Compton was not only a witness to a crime, he was also the victim of it. The man who attacked Mr. Compton was very close to him, close enough to make physical contact. Mr. Compton said he had a clear view of this person as the person pulled back from the stabbing. And Mr. Compton identified the Defendant as being his attacker within a very short time of the attack, perhaps some ten or fifteen minutes after the event. And before the identification he had given a description to the Police Officers of particular features of the man who had attacked him and the man stopped by the Police Officers, namely the Defendant, had those particular features. Further, as far as the evidence of the actual identification in the foyer is concerned, that evidence may well suggest that this was an entirely spontaneous identification, as Mr. Compton saw the Defendant standing in the foyer opposite the office door. And, in my view, it is a matter for the Jury to decide to what extent, if at all, the fact that the Defendant was already in the presence of Police Officers affects independence or certainty of the identification. So, accordingly, I am satisfied that this is a case which should be considered by the Jury."

Before us this morning Mr. Baur has emphasised the weaknesses in the identification, in particular, the fact that the club was in a state which was described by at least one witness as chaotic and with poor lighting; the evidence given by the complainant as to the circumstances in which he was stabbed; what he was able to see about the assailant and matters of that kind. He submits that the evidence was poor identification evidence, unsupported, and that the whole of that was aggravated by the circumstances in which the identification was made.

We cannot agree that this identification evidence was so poor that it attracted the Turnbull principle. The Recorder was in the best possible position to assess the strength of the identification evidence. He considered all the points that were made by Mr. Baur to him, and has made an assessment of them which, in our judgment, cannot properly be criticised. Accordingly the second ground of appeal must be dismissed.

There remains the irregularity deriving from the fact that both verdicts cannot stand, given that they were alternative counts. As a verdict was first given on count 1, the jury should never have been asked for a verdict on the less serious alternative, count 2. At first blush therefore the verdict on count 2 should be quashed, as this generally speaking would be the appropriate course (see the decision of this Court in

R v. Fernandez (10th May 1996) and the various authorities considered in that decision).

However, the learned Recorder in the present case passed sentence, on count 2 only, so that a further anomaly would result if the verdict on count 2 were to be quashed by this Court. Accordingly in the particular circumstances of this case, we shall quash the verdict on count 1. To that extent only does this appeal succeed.