England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		27th July 1999

LORD JUSTICE POTTER:

On 27^th July 1998 in the Central Criminal Court, the appellant pleaded guilty to one count of indecent assault and one count of robbery (relating to separate incidents) which were the subject of counts 2 and 3 of an Indictment containing six counts in all. On 29^th July 1998, following a trial at the same court before Her Honour Judge Anwyl Q.C. and a jury, he was convicted of a further indecent assault upon another victim (count 1). On 25^th September 1998, after a further trial before the same judge and a jury, the appellant was convicted on the three remaining counts i.e. wounding with intent to do grievous bodily harm (count 4), indecent assault (count 5) and robbery (count 6), all relating to a further victim. He was sentenced as follows:

Count 1 - 4 years imprisonment;

Count 2 - 3 years imprisonment concurrent;

Count 3 - 3 years imprisonment consecutive to Count 1;

Count 4 - 5 years consecutive to Counts 1 and 3;

Count 5 - 4 years imprisonment concurrent;

Count 6 – 3 years imprisonment concurrent.

The total sentence imposed was thus 12 years imprisonment. An order was made under the Sex Offenders Act 1997.

The appeal is against conviction on Counts 4,5, and 6 only, leave having been granted by the single judge.

The facts relating to those counts are as follows. On 14^th November 1997, M.A. was walking in Crystal Palace Park when she was attacked from behind and beaten about the head, causing serious injuries (Count 4). The attacker also indecently assaulted her by putting his hand between her legs inside her knickers (Count 5). He then robbed her of her rucksack before running away (Count 6). The Crown did not seek to rely on evidence of visual identification by the victim. It based its case on evidence of an alleged confession by the appellant to one Mark Rose and on forensic evidence relating to blood stains found on the appellant's trainers. This evidence was described as 'weak' by the scientist giving it, in the sense that while DNA testing revealed blood which was not of the defendants blood group and was of the victim's blood group, it was a blood group shared with one-in-twelve of the population. It was the defence case that the appellant was asleep in bed at the relevant time and that the alleged confession was fabricated. The issue for the jury was thus (i) whether the appellant had in fact made such a confession and (ii) whether the Crown had established that he was in fact the attacker.

In evidence M.A. remembered her attacker only as white with dark hair and dressed in dark clothing, probably in his early thirties. She said he had passed him sitting on a bank as she was walking in the park and, some fifteen minutes later, when retracing her steps, she had noticed the same man still sitting on the bank. A few minutes later she was struck on the back of her head from behind as she began to turn her head, but did not obtain a view of her attacker at this stage. He continued to strike her about the head and face with a hard object several more times until she fell to the ground, bleeding profusely. As she lay face down, she felt the man's hand between her legs, touching her bottom and vaginal area inside her underclothing, after which he hit her a few more times. He then pulled the rucksack from her back and ran away. She thought the man who attacked her was the same man she had seen earlier on the bank. She described him as white, about 5'6 to 5'8 tall, not fat, with dark clothing and fairly short dark hair, a broad description not inconsistent with that of the appellant.

Mark Rose gave evidence of the confession relied on. He said he had known the appellant for about two years and they had become friends, continuing to meet after Mr Rose had left his employment with the recovery company at which they both worked. Mr Rose said that on an occasion in about September or October 1997, he noticed that the appellant had scratches on his face and the appellant told him that he had had a fight. The appellant said his leg was hurting as it had been scratched when he was in the park. He had hit a person with long hair whom he thought was a man, with a brick. Mr Rose said he had the impression that the person could have been a woman. He said that at the time the appellant did not specify which park he was referring to. He was wearing navy track-suit bottoms and black Puma trainers at the time the conversation took place. When Mr Rose saw the appellant at work later the same night, he appeared to be in a panicky state, mentioning that he had had to change his track-suit bottoms before he started work, but refusing to say why. Mr Rose said the appellant mentioned the incident briefly on subsequent occasions and had given him the impression that the attack had occurred in Crystal Palace Park where the appellant usually wished to be dropped off by Mr Rose. He said he believed the appellant had mentioned Crystal Palace Park as the location of the attack. He accepted that in his first statement there was no mention of the incident having taken place in a park and, in the second statement, he did not mention Crystal Palace Park by name. He agreed that the appellant had told him that he had had a fight with a driver at his place of work and had walked out afterwards. He also said the conversation about hitting someone with a brick had occurred a day or two after the fight at work of which the appellant told him. Questioned about the appellants clothing on 14^th November, Mr Rose said he had been wearing Puma trainers and a pair of royal blue or light navy track-suit bottoms in the morning, but in the evening he had changed to a different pair of black or very dark navy track-suit bottoms but was wearing the same pair of black trainers. Cross-examined about the appellant's injuries to his leg, Mr Rose said that the appellant told him he had scratched his leg on the same occasion he mentioned the attack with the brick and that subsequently the appellant had pulled up his trouser leg and shown Mr Rose a graze and scratches on his leg. He was certain that the appellant had not been referring to the fight at work when he spoke about hitting someone with a brick.

Miss Caroline, a forensic scientist, gave evidence concerning her analysis of the sample taken from a blood stain on the appellant's training shoes, and that she concluded that the blood could have come from M.A., but not from the appellant. She stated that the one-in-twelve chance that a person chosen at random from the population would have a similar blood group provided 'weak' support only for the proposition that the blood came from the victim.

Detective Constable Cornwall, the arresting and interviewing officer, stated that the appellant had indicated that he was willing to stand on an identity parade. However, the parade had not been held because M.A. had stated that she did not think, and there appeared to be no reason to think, that she had any reasonable prospect that she could identify her attacker. There was also police evidence that there had been no other reported attacks of a similar nature on women in or around Crystal Palace Park during the period 1^st November to 20^th November.

The evidence of the appellant's mother was contained in a witness statement which was read to the jury by agreement. In it she stated that, on 14^th November 1999 the appellant had arrived at her home off the preceding night shift at about 8.30a.m., bringing with him a number of letters addressed to himself. He left the letters in the hallway and said he was going to bed. She said it was not unusual for him to sleep at her house when he was working at night. She did not speak as to the time of his rising, or his presence or whereabouts at about 4p.m. on 14^th November when the attack on the victim took place. When the appellant gave evidence, he said that his mother could have confirmed that he was in bed at 4-4.30p.m. but indicated that, for reasons which he did not give, she was not willing to give evidence on his behalf.

The appellant said that he was working night shifts from 8p.m. to 8a.m. from Monday to Sunday at the time of the attack (this shift pattern was confirmed by the police). On the morning of 14^th November, he had been picked up by Mr Rose and dropped at his mother's address where he had some coffee and went to bed. He said he did not wake until 5.30 or 6.00p.m. at which time he telephoned Mr Rose and arranged to meet him, doing so at about 6.40p.m. and spending an hour driving in Mr Rose's vehicle before he was dropped off at a mini cab firm. He said he then went home in a mini cab, changed and had something to eat, and went to work.

He said that, two nights later, on his last night of work, he had had a heated row with a fellow employee, whom he had hit, causing him to bleed. He said he himself was not injured. He denied that there had at any stage been a conversation with Mr Rose concerning his having hit a man with long hair with a brick, he also denied showing Mr Rose scratches on his leg. He said he had simply told him on 17^th November about the fight on his last night at work. He said Mr Rose had put to him a newspaper report of an attack in the park and he had denied that he was the attacker. He said he did not recollect any blood on his trainers and could only suggest it might have come from the man he had hit in the fight at work. He said he had been wearing dark navy trousers and a dark shirt on the morning of 14^th November and denied having said anything to Mr Rose about changing his clothes. As to the possible reason for Mr Rose to mis-state the position, he said that he thought that Mr Rose was jealous of him because he had got on well with Mr Rose's girlfriend and there had also been a dispute over some money which Mr Rose owed him. However, he said he thought that Mr Rose was mistaken rather than having lied about the conversation between them and the alleged injuries.

Dealing with certain comments that he had made in interview with the police, the appellant accepted that he had been initially unsure whether he had been asleep at his mothers on the afternoon of 14^th November but said that, after consideration, he was sure that was so. He denied that he had changed his clothing because he had got blood on his trousers and said he had worn his trainers continuously, including on 14^th November. He said he had made no attempt to obtain a sample of blood from the man at work whose blood he suggested was on the trainers.

In the course of the trial, the defence made a submission in the absence of the jury that there had been a breach of the Codes of Practice by the police because, despite the fact that the appellant had indicated that he was willing to stand on an identity parade, none had been held. It was therefore submitted that any evidence relating to identification of the appellant, in particular the confession and forensic evidence, should be excluded. The judge rejected the submission. She said that M.A. had given only a broad description of her attacker in the statements which she made. She accepted the police evidence that she had subsequently made clear that she would not be able to identify her attacker and therefore DC Cornwall had decided not to hold an identification parade. The judge commented that identification parades were held for the benefit of both the prosecution and the defence and that where a parade had not been held and the defendant was thereby put at a disadvantage, evidence of visual identification would often be excluded. However, she accepted the prosecution's submission that this was not a case in which the Crown sought to rely on visual identification and, in reliance upon the case of R v Montgomery [1996] Crim.LR 507, she indicated that, there being no reasonable possibility that the witness would be able to make an identification, no breach of code D2.3 was involved. She went on to state that, even if there had been a breach, the fairness of the proceedings would not be affected, since the Crown did not seek to rely on evidence of visual identification.

The defence had submitted that the lack of an ID parade made it unfair to admit evidence of DNA testing and the confession, as being no more than an effort to 'fill the gap' left by the absence of an identification parade. The judge rejected this argument. She said that both the DNA evidence and the confession evidence were matters which could be dealt with on their merits by the defence, and by the jury, subject to suitable guidance in the summing up, it being for the jury to assess what weight should be attached to that evidence. She did not consider that the presence of factors which might make the evidence of little weight, per se indicated that its admission would have such an adverse effect on the fairness of the trial that it should be excluded. Accordingly the judge ruled that the evidence should be admitted.

At the end of the prosecution case, there was also a defence submission of 'no case to answer'. The judge ruled that, since the Crown did not rely upon visual identification evidence of the appellant, this was not a case where the principles set out in the case of Turnbull applied.. Having observed that she had already ruled that there was no breach of code D2.3, she went on to state that an appropriate direction to the jury would be to say that the complainant did not identify the appellant and the only weight to be attached to her description was that it did not eliminate the appellant. As to the weight to be attached to the confession evidence, the judge stated that it depended upon the view taken of Mark Rose's reliability, in respect of which the jury were well able to come to their own conclusions. As to the DNA, the judge accepted that it had been described by the scientific witness as providing only weak support for the Crown's case but said that, once reminded of that, there should be no danger that the jury would rely too much on it. Accordingly, she ruled that the case should go to the jury.

Save in one respect (now abandoned), the grounds of appeal raise no criticism in respect of the summing up. The first, and fundamental, ground of complaint is that the failure to hold an identification parade was a breach of para D2.3 of Code D of the Police and Criminal Evidence Act 1984 (PACE). It is said that the provisions of that paragraph are mandatory and that, breach having occurred, the judge should have acceded to the defence application at the outset of the trial that the evidence of Mark Rose and the forensic scientist should be excluded as rendering the proceedings unfair under S.78 of PACE. It is also said that, given that the appellant was deprived of the benefit of an identification parade, and hence of the opportunity to rely before the jury on the fact that he has not been picked out, the evidence relied on to 'fill the gap' should be excluded because its prejudicial effect exceeded its probative weight.

Second, it is submitted that, the DNA evidence being categorised as 'weak', which was one category up from 'no evidence', it should have been excluded, by way of analogy with the approach usually adopted in respect of fingerprint evidence.

Third, it is submitted that the evidence given by Mark Rose was highly suspect, in that he considerably added to his evidence at trial, and he admitted that he had read a newspaper report of the attack before he had made his statement to the police. It is also said that he had himself had contact with DC Cornwall, the officer in the case, before the appellant's arrest and was instrumental in it.

There was originally a ground of appeal relating to the judge's direction in respect of the alibi evidence of the appellant, and the support to be derived from his mother's statement. However, this ground of appeal was abandoned and the conviction is said to be unsafe on the three grounds we have outlined.

Code D: 2.3 provides that:

"Whenever a suspect disputes an identification, an identification parade shall be held if the suspect consents unless paragraph 2.4 or 2.7 or 2.10 apply. A parade may also be held if the officer in charge of the investigation considers that it would be useful, and the suspect consents".

Paragraphs 2.4, 2.7 and 2.10 which relate respectively to impracticability, and group and video identifications are not in point in this case.

As made clear in Montgomery, in the context of paragraph D2.3 the 'identification' first referred to is visual identification by a witness in the form of a description of the suspect: see the heading to D:2 'Identification by witnesses' and the opening line of D:2.0 'a record shall be made of the description of the suspect as first given by a potential witness'. It does not relate to forensic evidence: see D:3 ('Identification by fingerprints') and D:5 ('Identification by body samples and impressions'). Nor, in our view, does it relate to identification in the sense of reliance upon an admission made to a third party.

Despite what might at first be thought to be the purpose of an identification parade, namely that it is a method or procedure by which the police seek to obtain evidence for the purposes of prosecuting suspects, as opposed to a service performed impartially for prosecution and defence, this court has in various of its previous decisions, leaned towards the latter view on the basis, it seems, that a parade may produce negative evidence favourable to an accused which the defence are incapable of generating for themselves. In R v Waite [1998] Crim. L.R.68, of which the transcript is before us, the explanation of the failure of the police to hold a parade was that the victim had seen the appellant arrested and that, if he afterwards picked out a person on the identification parade, it would be said in court that he was doing no more than identify the person whom he had pointed out to the police in the street following the crime, rather than the person whom he saw committing it. This court observed:

"Identification parades are held for the benefit of the defence as well as the prosecution. Had the victim failed to pick out the appellants this would have provided the defence with a powerful point. Where there has been a wrongful failure to hold a parade, the jury should be warned of the dangers of identification without a parade and the potential advantage to the defendant of an inconclusive parade (R v Graham [1994] CLR 213). The jury should be told as well that the failure connotes a breach of the Code of Practice, designed to ensure fair procedures in testing a witness' ability to identify an offender and that they can take this into account when determining whether they are sure that their identification was correct (R v Conway 91 Cr.App.R 143, R v Quinn (1995) 1Cr.App.R.480)."

It seems to us that the sweeping nature of the first sentence quoted is conditioned by the sentence which follows it, in the sense that circumstances plainly vary from case to case and the code is essentially there to protect defendants whose position in relation to the issue of identification is such that the failure to hold a parade may be a matter of genuine potential prejudice to the defence. It is no doubt in that spirit that this court has held that the right to an identification parade arises not only where there is an actual dispute, but, as stated in R v Rutherford & Palmer (1994) Cr.App.R 191, it also arises:

"Where such a dispute may reasonably be anticipated. Clearly where a witness has purported to name or otherwise identify a suspect: D:2.3 must apply. But we consider it also applies where a witness has indicated he or she would be able to identify the offender or there is a reasonable chance of him or her doing so."

where there is no reasonable possibility that a witness would be able to make an identification, as where the witness has stated that he does not think he could make an identification and there is no reason to doubt what he has said, then, if no identification parade is held, there is no breach of D:2.3 involved: see Montgomery at pages 17-18 of the Transcript.

We have heard argument as to whether the decision in Montgomery can stand as good authority in the face of recent observations of this Court in R v Forbes (30^th April 1999) of which we have now seen a transcript. That case was concerned with the question, previously considered in R v Popat [1998] Cr.App.R.208, whether, in circumstances where a full and complete identification has been made by a witness at the scene, paragraph D:2.3 nonetheless renders it mandatory for an identification parade to be held. In Popat the Court expressed the view that the approach to Code D and, in particular, paragraph 2.3 should be purposive and that since the overall purpose was 'one of adopting fair identification practices and adducing reliable identification evidence', paragraph D:2.3 had no application in a case where the relevant witness 'has already made an actual and complete identification'. The Court went on to say that:

"What is an actual and complete prior identification of the relevant individual by the relevant witness will depend upon the facts of each individual case".

In Forbes, this Court observed that the decision in Popat to the effect that that, in such circumstances, D:2.3 was not mandatory, conflicted with the earlier decision of Brown [1991] Crim LR 368 in which the opposite conclusion was reached. It also considered the case of Bell [1998] Crim LR 879 in which this court sought to reconcile the two positions. Paragraphs 24 and 25 of the judgment in Forbes reads as follows:

"24. In Bell, the court was seeking to reconcile Popat and Brown. But we do not think that the reasoning in the two cases can stand together. Accordingly it is, we think, open to us to take a view as to which should be followed. With respect we prefer the reasoning in Brown. The Code is plainly mandatory, and D:2.3 only exempts the duty to hold a parade in those circumstances specified by the express exceptions to which it refers. If there may be other cases where a parade is of no, or very limited, utility, that is a circumstance which the Code does not recognise.. In Popat, the court sought to attribute an interpretation to D:2.3 which would accommodate that circumstance. In our judgment it amounts to re-writing the Code. So far as it imposes a requirement for an identification parade which applies in circumstances where there is no point in one, it is for those having responsibility under statute to draft or revise the Code provisions to consider whether D:2.3 might be amended to introduce some greater element of flexibility, though we recognise at once the dangers inherent in watering down the duty as a whole to hold an identification parade; and we are not suggesting that such a course should be taken. In fact we think it difficult to conceive of a case outside the stated exceptions in which, given that the defendant desires one to be undertaken, it could confidently be said that a parade would serve no useful function whatever. Even if a street or other identification has been "actual and complete" (which is itself not an easy test to apply), it will not have taken place under the controlled conditions of a parade and the defendants might well, as was recognised in Brown and Bell, reasonably desire to take advantage of the possibility that the complainant might not pick him out on a parade, and to make submissions to the jury accordingly. And putting the matter bluntly, in considering the inconsistent approaches to D:2.3 which the learning exposes, we are of the view that any distinction between the question of whether a parade should be held because it would serve a "useful purpose" and the question whether it should be held "as a matter of good practice" is a distinction without a difference, and is apt only to lead to confusion and difficulty in trials at first instance. With great respect we consider that the reasoning in Popat tends to conflate two questions which are, and should be kept, separate. One is: has there been a breach of D:P2.3? The other is: should the other identification evidence be excluded under s.78?

25. The primary task of the trial judge, in a case where there has been no parade and it is submitted to him that other identification evidence (such as here, street) should for that other reasons be excluded is to address himself to the second question, arising under s.78. Indeed, that is in the end his only task; he is not concerned to discipline police for failing to hold a further parade by excluding evidence which, objectively, it is perfectly fair to admit. In execution of this task the judge's assessment of the quality of that other evidence will be of great importance. However, we emphasise that the failure to hold a parade may, of course, bear closely on the fairness or otherwise of admitting the other evidence, and may sometimes be determinative of it (."

That amounts to an unqualified statement by this Court that the Code is mandatory i.e. it should be taken at face value, D:2.3 only exempting the duty to hold a parade in the circumstances specified as express exceptions in paragraphs 2.4, 2.7 and 2.10. and that, where the Code applies, it is in all cases mandatory to hold a parade, rather than the matter being left to the unilateral decision of police officers as to whether a "useful purpose" will be served by holding a parade. However, the decision is predicated on the assumption that the wording of the Code is indeed applicable to the circumstances of the case (i.e. where an identification has been made); it is not directed to the ambit of the words "whenever a suspect disputes an identification", which, as we have already observed, relate to a purported visual identification by a witness. Nor does it appear that the Court was referred to the decision in Montgomery. Finally, while Waite was referred to for the purpose of emphasising the general observation that a parade may perform a useful function if it provides the accused some benefit from not being identified at it, the judgment in Forbes did not (as it did not need to) also refer to the observation of the court in Waite that:

"We are dealing with the facts of this case, where plainly it would have been material to have a parade."

In our view, the generality of the observations in Forbes do not affect the sense or logic of the decision in Montgomery, the effect of which is, in our view, that there must have been what amounts to a purported visual identification by a witness before the terms of D:2.3 come into operation. A mere assertion by a defendant that he requires an identification parade so as to rely upon the non-recognition by the witness simply for forensic purposes should not in our view be regarded as triggering an obligation on the police to indulge in the trouble and expense of organising an identification parade. Thus, where the sole witness to an assault or other crime is a victim who states that he or she cannot identify the perpetrator, and can either give no description or only a description of such generality that there is no reason to think that an identification parade would take the matter any further (whether in terms of recognition or elimination), we do not consider "identification" has taken place in the sense necessary to trigger the application of D:2.3. At the same time, as stated by the court in Montgomery, we do not think it appropriate to attempt to define the full ambit of the words "disputed identification evidence" because of the many different kinds of circumstances in which the problem may arise.


 


When a breach of Code is demonstrated, care must be taken in deciding what evidence it may or may not be appropriate to exclude, in so far as it is relied on by the prosecution to 'fill the gap'. Thus in the unreported decision of this Court in R v Walker (14^th December 1994), where the police had failed to hold an identification parade in circumstances when three witnesses had said they would be able to identify the culprit if they saw him again, the court described the breach as 'material and important', and the prosecution was not permitted to rely on 'substitute' evidence in the form of expert evidence of facial comparison as between a video and the defendant himself. By way of contrast, as pointed out in Montgomery, the decision in Walker to exclude did not extend to the fingerprint evidence relied on by the prosecution; nor, in Montgomery, did the court think it right to exclude evidence as to the comparison of handwriting. In Montgomery, such evidence was described as being of an 'entirely different character' from the expert evidence excluded in Walker; the distinction no doubt resting upon the difference in character between what was termed substitute evidence in the sense of evidence which was equivalent or highly similar to visual identification on the one hand and, on the other hand, evidence of an alternative nature or type tying the defendant to the offence, such as fingerprint or DNA evidence, or evidence of admissions made by the defendant. Again, in Rutherford & Palmer, where the failure to hold a parade occurred in a case of robbery, in which a number of witnesses claimed to have seen the robbers and one said he might have been able to identify them, this court upheld the decision of the judge not to stop the case on the basis that the circumstantial evidence in the case was very strong.

Applying the above principles to this case, it seems to us plain that the decision of the judge to admit the evidence of Mark Rose and the DNA evidence was correct. Whether there was in fact a breach of D:2.3 is somewhat problematic. Although apparently the witness stated that she would not be able to identify her attacker, she had given a broad description in relation to which it was at least arguable that some benefit to the defence might have been derived from holding an identification parade. However, assuming in favour of the appellant that the judge should have found that a breach of the Code had occurred, the prosecution did not put the case, nor did the judge sum up, on the basis that it was or could be regarded as resting on identification evidence; it was dealt with throughout as depending upon the evidence of Rose, the DNA evidence and the attitude of the jury to the appellant's alibi defence.

In those circumstances we have no doubt that the judge was correct in the view she took under s.78 of PACE. The prosecution case was not in any sense an effort to "fill the gap" created by the failure to hold an identification parade. Nor was it a case based upon substitute evidence akin to visual identification. It relied fairly and squarely upon evidence of a wholly different character, as to which the jury could be properly directed and with which the defence were able to deal without any prejudice resulting from the omission to hold a parade.

That leaves for consideration the question whether, considered on its merits, the quality of the evidence relied on was of such unreliable character that we should regard the verdict as unsafe.

So far as the DNA evidence is concerned, like the judge, we do not consider that its "weak" categorisation, according to the descriptive scale adopted by forensic scientists, amounted to a reason per se for its exclusion. It was evidence which provided some support, albeit not strong support, for the principal evidence relied on, that of Mark Rose. It was not a mis-exercise of the judge's discretion to admit it. When it came to summing-up, the judge said:

"What I want to stress to you about that evidence is that it does not prove conclusively that the blood sample .. belonged to Mrs A. On the contrary, it proves only that it could have come from her, as it could have come from one-in-twelve of the population and this evidence really only helps you to the extent that it does not eliminate Mrs A. as the person from whom the blood came."

The judge later elaborated upon that when summarising the evidence of the forensic scientist concluding:

"As to the scale of findings, in this case it was weak. These profiles would be found in one-in-twelve people in the population. It will be strong if for instance it was one-in-a-million and DNA evidence can be powerful if it falls at the top of the category, but one-in-twelve is a very common profile, a very wide category as for example of people sharing "O" type blood or brown hair."

That direction was full and fair and indeed no criticism is made of it.

As to the evidence of Mark Rose, as we have indicated, it is argued that his evidence was highly suspect because he added to his evidence in the witness box by saying that the defendant had named the venue of the attack as being Crystal Palace. Further, he admitted in cross-examination that he had seen a newspaper report about the attack on Mrs A. Those were points which were made vigorously by the defence and properly reflected in the judge's summing-up. The fact is that the jury were bound to decide the case upon their view of the genuiness and reliability, or otherwise, of Mark Rose's evidence concerning the appellant's admissions. They were fully and properly directed on that matter and that the burden of proof lay throughout upon the prosecution. Having carefully reviewed the evidence in the case, and the terms of the summing-up upon the two matters complained of, as well as the difficulties for the appellant in advancing an alibi in which his mother was, for whatever reason, not prepared to support him, we are quite unable to say that we consider the verdict unsafe.

The appeal is therefore dismissed.