England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2 Tuesday, 5th October 2004

1. MR JUSTICE RICHARDS: Andrew Williams appeals with leave of the Full Court against his conviction on 12th January 2004 in the Crown Court at Merthyr Tydfil before Mr Recorder Everett and a jury, on a count of inflicting grievous bodily harm, for which he was sentenced to 2 years' imprisonment.
2. The prosecution case was that the appellant and his brother, Paul, had attacked a man called Martin Francis in the early hours of 14th August 2003. The brother subsequently became seriously ill and the Crown chose not to continue proceedings against him. So it was the appellant alone who stood trial.
3. Mr Francis could remember nothing of the incident, but a friend, Michael Summers, had been with him at the time and gave evidence implicating the appellant and his brother. Mr Summers said that on 13th August 2003 he had spent the evening drinking with Mr Francis in the Merthyr Tydfil area. In the early hours of 14th August they made their way along a route known as the 'Taff Trail' towards the village of Abercanaid where Mr Summers lived. At the point where the Taff Trail approached the main road to Abercanaid he saw two men walking towards them. Nothing was said as the men passed but as he walked on, with Mr Francis slightly behind him, he heard a scuffle, turned round and saw the two men punching Mr Francis to the head and body. Mr Summers tried to separate them but he himself was injured to the head and was apparently unconscious for a short time. When he recovered the attackers had gone.
4. At the heart of this appeal is what Mr Summers said about the identity of the assailants. His evidence was to the following effect. He said that he recognised the two men as Andrew and Paul Williams who lived about 2 minutes up the road from him in Upper Abercanaid. He believed they were brothers. Their nicknames were "Baldy" and "Little Willy" but he did not know which was which. He himself had lived in the village of Abercanaid all his life. He was now aged 20. It was a small community and Upper Abercanaid was very small. He had seen the brothers around the village, around the Taff Trail and occasionally in Merthyr town. He had seen them quite often, every couple of weeks or couple months over a period of about 10 years. He had never spoken to them. He had first been told that they were the Williams brothers when he was about 10 or 11. Since then, he had been in the company of friends when the brothers had been named or pointed out by name, though not in circumstances where the brothers would have heard that discussed. He was not aware of any other brothers in the Upper Abercanaid area. That was the evidence relied on by the prosecution as linking the appellant with the attack. No identification parade was held, despite a defence request for one.
5. When the appellant was arrested and interviewed he accepted that he had lived in Upper Abercanaid all his life but he denied knowing the witness, Mr Summers. He maintained that he was not involved in the assault and he gave an alibi that he was at home at the time when the incident took place.
6. At the close of the prosecution case the defence made a submission of no case to answer on the ground that there was no admissible evidence of identification, in that Mr Summers' purported identification of the attackers as the Williams brothers was based on hearsay. He was only able to give the names of the attackers because people had told him their names. The same argument is advanced on this appeal and we will consider it further in a moment.
7. The Recorder rejected the submission, relying on a decision of this Court, differently constituted, in R v Clarke and Baker [2003] EWCA Crim 718. Following the rejection of the submission of no case the appellant chose not to give evidence or to call any evidence in support. He maintained the defence of alibi.
8. Before summing-up, the submission of no case to answer was renewed, with reliance on further authority, but was again rejected.
9. In the course of summing-up the Recorder gave a Turnbull direction in conventional terms and then referred to the defence argument that the identification of the appellant and his brother was based on hearsay. He pointed out that this was a small community where the jury might think that many people would know other people's names though they might never have spoken to them. He went on to direct the jury in these terms:

"If, after considering his evidence, [that is Mr Summers' evidence] you came to the conclusion that there really were only, let us say, one or two occasions over that ten-year period that one of his unnamed friends has pointed out, people who say 'Those are the Williams brothers', there really were only one or two occasions in the ten-year period, that would not be enough, ladies and gentlemen, that would not be enough to raise an identification, a proper identification of the people he says are the William brothers because you could not rule out, could you, the possibility of mistaken identification? If, however, after considering all of the evidence, you come to the conclusion that there were many times that he saw these persons and that there were many times that people had said something along the lines of, 'Well those are the Williams brothers' or 'See the William brothers down there' and were walking by and there were many times, then as long as you are satisfied that effectively this has become, as it were, common repute and common knowledge and that he has got it right, and you must be sure that he has got it right, looking at it practically, then you can use that evidence against the defendant in Mr Summers' purported identification."

He repeated much the same point when summarising Mr Summers' evidence later in the summing-up.

10. The Recorder also directed the jury that under the relevant Code of Practice there should have been an identification parade and that the jury should take into account, in their assessment of the case as a whole, the fact that the appellant had lost the benefit of that safeguard.
11. On the present appeal Mr Williams, on behalf of the appellant, contends that the prosecution failed to place before the jury sufficient evidence to prove that this appellant was one of the two assailants. He says that the crux was the failure to hold an identification procedure notwithstanding the request for an identification parade. The failure to hold such a procedure denied the appellant an important safeguard and, in the absence of such a procedure, one was left solely with hearsay evidence on the issue of identification.
12. Mr Summers' evidence, he submits, was inadmissible because this was a case of identification by hearsay. He says that repeated identifications by people not called as witnesses cannot alter the status of the evidence as inadmissible hearsay. In the written grounds the case is put on the basis that the Crown's case, at its highest, was that a number of people within the community believed that the men who assaulted Mr Francis were Andrew and Paul Williams.
13. Reliance is placed on the decision in R v Fergus [1992] Crim LR 363. In that case one of the victims of an assault gave the name of his assailant, saying he did not know him beforehand but had seen him and his brothers once before when someone had told him who he was. There was no identification parade. At the trial there was a dock identification in which the victim identified the relevant defendant as the man he knew by the name he had given. The conviction was quashed. The Court stated that the case where the complainant had seen the assailant only once or a few occasions before might well be treated as identification rather than recognition. It was acknowledged that dock identification was unsatisfactory but the identification of a person through a name that was only known by hearsay was almost equivalent to a dock identification. In the circumstances the conviction was held to be unsafe or unsatisfactory.
14. Fergus was distinguished in Clarke and Baker, in which the victim of an attack gave evidence that she recognised two of the attackers as girls who had been to the same school as herself. She had been 2 years their senior but they had overlapped by a period of some 4 years. During that time, although she had never spoken to them nor heard them acknowledge their names or identity, she had frequently seen them. Again there was no identification parade. The essential point on the appeal was said to be whether the trial judge was right to hold that it was in reality a case of recognition as opposed to identification and whether the recognition was of a sufficient cogency to merit the jury's consideration. The argument advanced was that it was not a case of recognition, for the simple reason that the victim could only have known the names of the assailant from what others had told her and that consequently her evidence, if not inadmissible, was unreliable because it was based on hearsay.
15. Sir Richard Rougier, giving the judgment of the Court, stated this at paragraphs 7 to 8:

"It seems to us that in the circumstances of this case this argument lacks practical realism. During a period of four years school children, or others in comparable institutions for that matter, get to know who their fellows are, sometimes directly by some informal introduction or acknowledgment, but often because they are named by persons who know them with never a suggestion to the contrary. If one might take an extreme example if a man who reads little and whose only pastime is watching the endless football matches with which the television channels are saturated, if one were to ask him who it was that had just scored a goal for Manchester United wearing a number 5 on the back of his shirt, the reply would be instant and definite, tinged with doubtless contempt for one's ignorance, although the knowledge had only come from a series of commentators over the years. Thus, what once may have been hearsay to start with, after much uncontradicted repetition over a period of time becomes repute and common knowledge. To hold otherwise, in our judgment, must be an affront to common sense.

The facts of Fergus are many leagues distant. There the victim had only seen his assailment once before when someone had told him who the other was. During the course of the judgment, as reported, it is stated that a case where the complainant had seen the assailant only once or on a few occasions before might well be treated as that of identification rather than recognition. But that was not this case."

16. The Recorder's summing-up in the present case drew heavily on the reasoning in Clarke and Baker. Mr Williams submits, however, that the approach of the Court in Clarke and Baker was wrong and should not be followed and, even if it was not wrong, he submits that the facts of the present case are very different and should lead to a different approach.
17. In the course of his submissions Mr Williams has also referred the Court to R v Kearney (1992) 95 Cr App R 88. But that was a very different case, albeit concerned with the hearsay rule and, in our judgment, does not assist the correct analysis of the present case. We therefore do not deal with it in any further detail.
18. For our part, we are wholly unpersuaded by the submission that Clarke and Baker was wrongly decided or that we should decline to follow the approach laid down in it. It seems to us that the arguments that have been advanced on the appellant's behalf are equally lacking in practical realism and invite a conclusion that would be an affront to common sense.
19. Analysis of the problem in terms of compliance with the hearsay rule or with exceptions to that rule is certainly easier where the name of the person is known as a result of repeated use of that name by others either to him or within his hearing, and without contradiction by him, so he may be taken to have accepted that that is his name. It may well also be permissible, as an exception to the hearsay rule, to adduce evidence of general reputation of a person's name even if the name has not been used to that person or within his hearing. We have not been addressed on the old common law exception to the hearsay rule whereby evidence of reputation could be adduced in proof of a person's identity.
20. In the present case, however, we think it unnecessary to get caught up with the intricacies of the hearsay rule. In our judgment, this was a clear case of recognition. What mattered was that the assailants were well-known to the witness. He recognised them as two men whom he had seen repeatedly over many years, who to his knowledge lived 2 minutes away from him in Upper Abercanaid, whom he believed to be the only brothers in the village and who, to his knowledge, were known in this small community as Andrew and Paul Williams. It was not in dispute that the appellant and his brother bore the names Andrew and Paul Williams. Nor was it in dispute that they lived in Upper Abercanaid where the appellant said he had lived all his life. In all the circumstances there was an overwhelming inference that the appellant was the same man as the witness had recognised. It was the witness's recognition of that man as one of the assailants, not the correctness of the man's name, which was the key point.
21. In any event, it seems to us that the present case is close on its facts to Clarke and Baker and very different from Fergus. This was not a case where the witness had seen the assailants only once or on only a few occasions before. The evidence was that he had seen them repeatedly over many years. The reasoning in Clarke and Baker was correctly applied and there was no misdirection by the Recorder.
22. Certainly, an identification parade should have been held, as is conceded by the Crown. The Recorder, however, dealt with the admitted breach of the Code in the manner to which we have referred. The way in which he dealt with that matter was well within his discretion. In our view, there was no unfairness in his allowing the case to proceed on that basis. Accordingly the Recorder was right to reject the submission of no case and to leave the witness's evidence for the jury to evaluate and to determine what weight to place upon it. He gave the jury appropriate warnings about the need for care in its evaluation. We therefore reject the first ground of appeal.
23. We should mention briefly the second ground, which is that evidence that there were more than one or two occasions when the appellant was identified by name to the witness as Andrew Williams was so tenuous as to make the conviction unsafe. We have referred already to the direction given by the Recorder on that issue. He repeated the point when reminding the jury of what the witness, Mr Summers, had said. We are satisfied that there was a sufficient evidential basis upon which a reasonable jury could conclude that there were more than a few occasions when the witness had had the Williams brothers pointed out to him by name over the years. It was a matter properly left for evaluation by the jury, which was clearly in no doubt about the conclusion to be reached. Accordingly, none of the matters advanced on this appeal causes us to doubt the safety of the conviction. The appeal must be dismissed.