England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
(CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th February 1999

Lord Justice Henry:

This is the judgment of the Court. On 10th June 1998 in the Crown Court at Harrow, before His Honour Judge Pitman, the appellant was convicted of burglary:

"having entered as a trespasser a building, namely Stag Lane First and Middle School, stole therein a handbag and contents belonging to Hamida Hussein."

He now appeals against conviction with the leave of the Single Judge.

The principal ground of appeal was:

"The learned trial judge erred in allowing the evidence of Ian Johnson to go before the jury because:

1) the evidence was prejudicial to the appellant and of little or no probative value;

2) there had been a substantial and significant breach of the Codes of Practice related to the Police and Criminal Evidence Act, 1984 in failing to hold an ID parade where the circumstances clearly required one."

The facts are these. Mrs Hussein was a teacher at the school. On the day in question she left her handbag in her classroom. That bag was stolen at some time between 12 noon and 3.45pm. Her bag, less the money that had been in it, was found in a rubbish bin in the yard of a nearby public house, some two or three minutes walk from the school. It was found by the cook of that public house in the following circumstances. She was, between and 3.00pm and 3.10pm, preparing "breakfast" for a single customer (who she had not seen). She saw, in the pub back alley by the rubbish bins, a man acting suspiciously. She described him as being a black man, and also described his clothing, including the fact that he was wearing a black nylon jacket with a brightly coloured capital "K" on the back. She saw him put something in a rubbish bin. When she took the breakfast to the customer, she recognised the man who had ordered as the man she had seen in the yard. So having served him, she looked in the rubbish bin, where she found Mrs Hussein's bag. In interview the man (who was the appellant) admitted that he had been the person she had seen in the yard. He said that he had gone to the yard to urinate. He had seen the bag on the ground there. He had never seen it before. He had picked up the bag and put it in the bin because he did not want to have anything to do with it. This account had serious internal difficulties, as the judge was to remind the jury:

"1) he must have gone into the pub before he was seen putting the bag into the bins, because he had ordered breakfast;

2) he would have had no need to urinate in the alley if he was a patron in the pub;

3) Mrs Smith had seen him removing the bag from the inside of his jacket;

4) he had kept looking around anxiously throughout the time he was in the alleyway;

5) why did he put the bag in the bin, unless he wanted to hide it?"

Those questions offered a certain scope for cross-examination. The defendant did not go into the witness box, nor did he call any witnesses.

The only evidence of any stranger seen on the school premises who might have stolen the handbag came from Mr Johnson, the caretaker, whose evidence the defence sought to exclude. His evidence described seeing someone (and he gave a general description of a black man, late twenties-early thirties, six foot tall, stocky build wearing a black bomber jacket with the logo "Kangol" on the back) and he saw the man going towards the exit that would have taken him to the public house. Therefore there were three elements in his evidence from which the jury could infer that the man he saw was the appellant - he accurately described the unusual jacket the man observed was wearing, he described him walking towards the public house at a time consistent with his being the appellant, and he gave a good general description fitting the appellant, as it would fit many other people (but few of them wearing a distinctive Kangol jacket).

Mr Johnson's witness statement (prepared on the day after the incident) gave all that information, described the opportunity he had to observe the appellant, and concluded with the sentence:

"I may be able to identify this male again."

The defence asked for clarification of that sentence, as a result additional statements were taken from both Mr Johnson, and PC Metcalfe who was the interviewing officer in the case. In his statement Mr Johnson said that due to the distance he had been from the appellant, he was not able positively to identify him. PC Metcalfe said that he had not asked for an identification parade because the witness did not believe that he could identify the man he had seen, because he could not describe his facial features.

Accordingly, at the request of the defence, the trial judge heard a voir dire in relation to this evidence. Both Mr Johnson and PC Metcalfe gave evidence. We have no transcript of that evidence, and the judge in his judgment on the ruling gives us none of the detail of PC Metcalfe's evidence. But it is clear from his judgment on the voir dire that Mr Johnson said:

"Really there was only a two percent chance of my being able to get a correct identification."

From what he said later in the witness-box, this was because he could not see the facial features of the man, he was quite a long way from him, he thought he was a parent, and he had no special reason at the time to take notice.

The judge recorded that the officer considered there to be no point in having an identification parade because of the poor quality of the observations and the doubts expressed by Mr Johnson.

The judge refused to rule the evidence inadmissible. He correctly referred himself to the Code, Paragraph D 2.3. This part of the Code deals with cases where the suspect is known to the police, which the appellant was, as he had been arrested. That paragraph of the Code reads:

"Whenever a suspect disputes an identification, an identification parade shall be held if the suspect consents [and then follow some exceptions not relevant to this case]. A parade may also be held if the officer in charge of the investigation considers that it would be useful and the suspect consents."

The judge rightly took these sentences separately.

The judge found that the first sentence did not apply at all - Mr Johnson had not purported to identify the appellant as the burglar, and nor was the Crown's case that the appellant had been so identified. The Crown's case, as put before the judge at the voir dire and the jury subsequently, relied on the doctrine of recent possession, namely:

"That where it is proved that premises have been entered and property stolen therefrom and that very soon after the entry the defendant was found in possession of the property, it is open to the jury to convict him of burglary" (see Archbold 1999 21-125)

The relevance of Mr Johnson's evidence was, as the judge told the jury, that his description of the man he saw, what he was wearing and where he was going all "made it even more likely that it was the defendant who was the burglar".

In his summing-up to the jury the judge was to make it clear that:

1) there was no direct evidence that the defendant was the burglar stealing the handbag;

2) that he had not been identified as being on the site;

3) and he reminded the jury that Mr Johnson made clear that he could not see the facial features of the man he observed.

This analysis is strenuously attacked by Mr Lynch for the appellant. He contended that the witness Johnson provided a description which described a person who could be the appellant. Factually, that is correct. This conclusion had been both suggested and put as a positive assertion by the interviewing police officers, and was denied by the appellant. Again, true but unsurprising. Therefore it was an "identification" and was disputed by the appellant. Therefore an identification parade was mandatory.

In our judgment that submission is logically flawed. Mr Johnson had not identified the person who he saw and described as being the appellant. The only identification made of the appellant (and it was one that he accepted and did not dispute) was that as the man whom Mrs Smith had observed in the alley outside the public house disposing of the handbag. The relevance of Mr Johnson's evidence was to give the jury evidence as to time, place, and a description of clothes and general characteristics from which the jury might infer that the man observed had been the appellant (because he was in the right place, wearing the right clothes, and fitting the general description of the appellant). But it was not evidence in which the witness himself identified the man he saw.

It was further submitted by Mr Lynch that the case of R -v- Popat [1998] 2 Cr App R 208 supports him. He relied on a passage to be found at 219C:

"In each of these cases the informal identification of the suspect was treated as being open to doubt. If there has not been a fully satisfactory previous identification of the suspect by the witness then there is no reason to say that Paragraph 2.3 does not apply."

He submits that here there has not been a fully satisfactory previous identification of the appellant by Mr Johnson, so there must be an identification parade under Paragraph 2.3. That submission is fatally flawed because it only applies where there has been an informal identification, and here there was no identification at all. Indeed, later on the page, Hobhouse LJ was dealing with the cases to be contrasted with cases of not fully satisfactory, informal identification and says:

"Similarly, there are cases such as Oscar [1991] CLR 778 where the evidence of the witness was that she looked out of her window and saw in her garden a man wearing distinctive clothes which she was able to describe. She was able to see his features, but gave an indication of his height and build. She saw him attempting to break into some premises on the other side of the road and rang the police. Police came and found and arrested a suspect. He was wearing clothes which fitted the witness's description. No identification parade was held. This was not an identification case because the witness was not purporting to have identified any individual person. All she was doing was giving evidence of her observation of an unknown man wearing certain distinctive clothes. It was thus in truth a circumstantial case raising the question: Was it remotely likely that there would be two identically dressed men in the vicinity of the commission of the crime?"

The fallacy of Mr Lynch's submission is demonstrated by the qualitative difference between identification evidence and what the judge called "evidence of description". The special need for caution before convicting on identification evidence is because, as experience has often shown, it is possible for an honest witness to make a mistaken identification. But the danger of an honest witness being mistaken as to distinctive clothing, or the general description of the person he saw (short or tall, black or white etc, or the direction in which he was going) are minimal. So the jury can concentrate on the honesty of the witness, in the ordinary way.

Mr Johnson did not identify the appellant, whether formally or informally, and the first sentence of Code D: 2.3 does not apply in this case.

The second sentence provides that a parade may also be held if the officer in charge of the investigation considers that it would be useful, and the suspect consents. The interviewing officer here thought that it would not be useful to conduct an identification parade in this case because of the witness's reasoned doubts as to whether he could perform the exacting task of individual identification because of his distance from the individual and his inability to see facial features. The judge found that the officer took the view:

"... that there would no point in carrying out an identification parade where the person merely said he may be able to identify the male but also may not, because ... of the poor quality of his observation the witness would be unable to make an identification at all even though the suspect was on parade simply because he had never had a good enough look, and that would have been a misleading result."

The Code rightly entrusts this decision to the officer in charge of the investigation. He was called on to account for his decision to the judge. The judge clearly accepted his evidence. The judge in no way misdirected himself, and arrived at a decision well within the ambit of his discretion.

It would have been pointless for Mr Johnson to take part on an identification parade when he had never claimed that he could identify the man he saw. That recognised inability in no way casts doubt on his evidence as to the distinctive clothing, nor where the man was, nor the general description given. Therefore the requirements of a fair trial (far to the prosecution as well as to the defence) here require that evidence to be given, not excluded.

The reasoning of the Court in Popat is directed to ensuring the quality and reliability of identification evidence. It would be curious if it were a result of that case that the police were obliged to hold identification parades for witnesses were they and the witnesses did not believe they could reliably identify the suspect. What weight could be given to a positive identification in those circumstances?

Lastly Mr Lynch took an unpleaded point. He said that the jury was not properly directed as to the caution with which they should approach Mr Johnson's evidence which the judge had characterised as being evidence of description. That evidence was ordinary everyday evidence of what the witness had seen with his own eyes. It was general evidence. There was no reason to disbelieve that evidence - whether as to the Kangol top, or as to the general description of the physical characteristics of the man he saw, or as to where he saw him and the direction he was travelling in. It would make no sense for the jury to be told that they should approach that evidence with particular caution because this witness had not stood on an identification parade. This is not an area where the dangers of wrongful identification (that a mistaken witness can be a convincing one) apply. Here was an independent witness who was either telling the truth or was making the whole thing up for no obvious reason. No special warning or direction was required.

The other points mentioned in the grounds of appeal relate generally to the safety of the conviction. There is nothing in them. The case against the appellant was overwhelming.

Accordingly, this appeal must be dismissed.