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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Hookway, R. v [1999] EWCA Crim 212 (01 February 1999)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/1999/212.html
Cite as: [1999] EWCA Crim 212
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CRIMINAL DIVISION
The Strand London WC2 |
||
B e f o r e :
(LORD JUSTICE ROSE)
MR JUSTICE HUGHES
and
HIS HONOUR JUDGE STEPHENS QC
(Sitting as a Judge of the CACD)
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| R E G I N A | ||
| - v - | ||
| STEPHEN JAMES HOOKWAY |
____________________
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 421 4040 Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
MR E ROBERT appeared on behalf of the Crown
____________________
Crown Copyright ©
- On 22nd April 1998, at Manchester Crown Court, this appellant was convicted by the jury of two counts of robbery and one of having a firearm with intent, and he was sentenced by His Honour Judge Burke QC, before whom the trial had been conducted, to 7 years' detention under section 53(2) of the Children and Young Persons Act 1933 on each count concurrently. Not guilty verdicts, on the judge's direction, were entered in relation to two other counts in the indictment, which each related to taking a conveyance without authority.
- He appeals against conviction by leave of the Singh Judge.
- The circumstances were that on 29th July 1997, a gang of five masked men, carrying firearms, entered Barclays Bank, in Salford and, in the course of two robberies, at that same place, stole several thousand pounds in cash. The issue, for the jury, was whether the appellant was one of that gang.
- The evidence against him consisted solely of expert evidence of so-called "facial mapping." That evidence came from Richard Neave, an artist in medicine, at Manchester University, and his assistant, Caroline Wilkinson who, on 14th October 1997, received from the police, colour photographs of the robbery and still photographs, made from a video film taken of the appellant, after he was arrested. They also received some black and white photographs, and they were asked to examine these photographs and express a view as to whether or not the appellant was one of the robbers.
- Two basic procedures were used. First, they looked at the proportions of the face, to see if they were the same in each of the different sets of photographs, and secondly, they looked for morphological features, that is to say the shape of the face.
- The first of those procedures involved, generally, a form of superimposition, whereby one photograph was put on top of the other, and an image was then projected on a glass plate, where it could be reduced or enlarged at will. A computer scanner was used. There was an acceptance, by Mr Neave, in cross-examination, that a stocking mask would, to some extent, modify the appearance of the wearer by flattening the hair and pulling the ears closer to the side of the head and, to some extent, distorting the shape of the nose, and a mask would also pull the cheeks inwards. However, what would not be distorted by a stocking mask were features such as the eye distance that is to say, the distance between the eyes.
- Mr Neave said that the proportions of the robber's face were totally consistent with the proportions of the appellant's face, both in relation to frontal and side views. He said that his findings were "very powerful support for the assertion that the offender was the appellant."
- But, he said he could not say for definite that the robber and the appellant were the same person; facial mapping was not the same as a fingerprint. He conceded that, if a trawl were made through Manchester, it might be possible to find one or two other people of similar appearance.
- It was pointed out that the robber's mouth seemed to be different from the appellant's mouth, and he said that could be the mask, or it could be a slightly different camera angle.
- The appellant's brother, Peter, was brought into court, during cross-examination. Mr Neave was asked to look at him. Thereafter, Mr Neave said that he could not exclude the possibility that there was somebody else who closely resembled the offender. But, in conclusion, his opinion remained the same. When he was cross-examined, he said that he could not say, with absolute certainty, 100 percent, that the offender was the appellant. But, he went on, when he was cross-examined in considerable detail perfectly properly by Mr Meadowcroft, to set out, for the jury's consideration, the detail of his observations which lent support to his conclusion.
- His conclusion, cross-examination as before, was that he could not prove scientifically that there was not somebody else of similar appearance. His opinion remained that what he had seen, in the course of his examination of the photographs, was very powerful evidence that the appellant was the offender.
- Apparently, there was evidence from another expert who had reported to the defence and parts of whose report were put to Mr Neave in cross-examination, which was to similar effect. We should add that Caroline Wilkinson, as we have indicated, also gave evidence of the similarities between the two sets of photographs, one of the appellant and the other of the offender.
- The submission was made to the judge, by Mr Meadowcroft, then as know appearing for the defendant, that this evidence, from Mr Neave and his assistant, did not provide a prima facie case for the jury's consideration. The judge ruled against that submission. The defendant did not give evidence. The judge correctly directed the jury, as Mr Meadowcroft accepts, that it was open to them to draw inferences from the fact that he had not given evidence, in a manner entirely in accordance with the authorities. Mr Meadowcroft makes no criticism, in any respect, of the summing-up.
- But, he submits to this Court, the judge was wrong to leave this case to the jury. He accepts that facial mapping is important, and valuable evidence. He accepts that Mr Neave is an expert in this field, and he tells the Court, and we accept, that Mr Neave is a highly impressive witness. But, says Mr Meadowcroft, these are comparatively early days in the forensic skill of facial mapping. At the moment, there is no database and it is impossible to know how many others may look the same as a particular accused.
- Mr Meadowcroft points out that in two of the authorities referred to, R v Clarke [1995] 2 Cr App R 425 and R v Stockwell [1997] Cr App R 267, facial mapping evidence was supportive of other evidence. It did not stand on its own. That is so.
- The question which arises is whether this facial mapping evidence, standing on its own, afforded a case for the jury to consider.
- Mr Elias, on behalf of the Crown, points out it is not suggested that the evidence was inadmissible and its weight, he submits, was a matter for the jury.
- In our judgment, there is no sustainable criticism to be made of the judge's conclusion that there was a case for this jury to consider. The evidence from the experts did afford such evidence and, having regard to that which transpired thereafter, there could not be any ground, if there was a prima facie case for the jury, for regarding the conviction as being in any way unsafe.
- In our judgment, despite the most admirably succinct submissions of Mr Meadowcroft, equalled in their brevity by those of Mr Elias, this appeal must fail.
THE VICE PRESIDENT: