England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MAIDSTONE
HH JUDGE CROFT QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 January 2004

LORD JUSTICE THOMAS :
 


1. On 11 July 2002 at the Crown Court at Maidstone, before HH Judge Croft QC and a jury, the appellant Collins and the appellant Keep were convicted of kidnapping and of having a firearm with intent to commit an indictable offence. The conviction of Keep on each count was by majority (11:1). Keep was also convicted of an offence of doing an act tending and intended to pervert the course of public justice. On 16 July 2002 Collins was sentenced to a period of 9 years imprisonment for kidnapping and to a consecutive term of 1 year's imprisonment for having a firearm, making a total of 10 years imprisonment. Keep was sentenced to 7 years imprisonment for kidnapping, a consecutive sentence of 1 year for the firearm offence and a further consecutive sentence of 3 years imprisonment for doing an act intending and intended to pervert the course of justice, making a total sentence of 11 years imprisonment. There was a further defendant, Gavin Burt who, like Collins, was convicted of kidnapping and a firearms offence.
2. The appellant Collins appeals with leave of the single judge against sentence and conviction. The appellant Keep appeals with leave against conviction.

The background facts

3. It was common ground that the background to what happened related to a significant parcel of cannabis which had been stolen.
4. It was the prosecution's case that Hutchinson, who was the victim of the kidnapping, was believed by the appellants and one other person to have in his possession 30 kg of the cannabis which had been stolen. It had been their intention to set about retrieving it.
5. Hutchinson's evidence was that he had been contacted by Mick and Carole Wells who lived in Maidstone and been asked to supply them with cannabis. He was not prepared to supply them with the quantity asked for, but agreed to supply them with 5 kg.
6. On 10 October 2001 he went to their house in Maidstone in his Ford Fiesta, taking with him 5 kg of cannabis in the back of the car; his evidence was that he went into the house and saw Carole Wells and three men, one of whom he recognised as Keep. He subsequently identified Collins at an identification parade as one of the others but did not identify the third person the prosecution alleged to be present, Burt. It was Hutchinson's evidence that the four men had come to meet someone they suspected of having 30 kg of cannabis which had been stolen but they did not know his identity. Hutchinson left the premises but, as he made to leave, he was identified and was beaten up by the men who produced a sawn-off shotgun and a handgun. He was asked where the drugs were but denied any knowledge of them. His evidence was that he invented a story that the drugs were at premises at Northfleet and he offered to take them there. His evidence was that the keys of his Ford Fiesta were taken from him and he was put into the boot of an Audi and driven away. During the course of the journey he was taken from the boot and forced at gunpoint to drive his own car. His evidence was that Keep and another person (Burt) were in the car with him. Collins and the fourth person were in the Audi. It was his evidence that they kept in contact by mobile phone.
7. Hutchinson followed a route that allowed him to get to the front door of Dartford Police Station; he jumped out of the Audi and ran into the police station. There was evidence that he had blood on his face and hair. The evidence was also that the two men who were in the Fiesta with him jumped out and got into an Audi which was driven off.
8. Some ninety minutes later the Audi was seen by Police Officers in Maidstone and was pursued. The car was abandoned and there was a chase in the vicinity of South Park Road, Maidstone. Collins and Burt were apprehended a short distance from the car. They were asked what they were doing. Burt said in the presence and hearing of Collins that they had been in the Century Public House chasing girls; that was a lie. Collins said nothing but accepted that the keys to the Audi were his.
9. A search revealed:

i) £10,300.00 in cash in the Audi.

ii) A pistol close to the Audi which forensic evidence linked to Burt and Hutchinson.

iii) Collins' cap in the Audi which had Hutchinson's blood on it.

iv) Collins' fingerprints on Hutchinson's Fiesta.

10. There was no forensic evidence that linked Keep; there were however mobile phone records of calls from Burt's mobile phone to Keep's mobile phone. The records pinpointed where Burt was and this confirmed the route which Hutchinson said had been taken. However, as the calls had only been received on Keep's phone, there was nothing to show where he was.
11. None of the defendants gave evidence. Collins relied upon his account in interview; in that interview he had said that he had heard from Carole Wells about the cannabis which had been stolen. He agreed with her that he would pretend to buy it and that the seller would drop it off at her house at an agreed time. After two and a half hours had elapsed and he had heard nothing he decided to go around to Carole Wells' house. Shortly after he had reached her house, Hutchinson arrived; others were present, but he was unaware that Hutchinson was to be the supplier of the cannabis until he was about to leave and Carole Wells told them. One or two of those present left with Hutchinson; Collins had seen a scuffle. Hutchinson was told that they wanted to see the drugs and, if they were not the same ones, that would be an end of it. Hutchinson had said the drugs were in premises at Northfleet and he would take them there. Hutchinson had then driven his Fiesta and Collins had followed in the Audi. They stopped once; Collins had noticed they had gone beyond Northfleet. Hutchinson had stopped and he had spoken to him through the driver's window. Shortly afterwards Hutchinson had driven to Dartford Police Station. He denied that anyone had had weapons or that Hutchinson had been put into the boot of the Audi car. It will be necessary to refer to one or two matters in more detail in connection with the specific grounds of the appeal.
12. Burt had given an interview that was characterised by "no comment" answers. Keep's account given in interview was that although he had been drinking at the same public house as Collins, he had left and gone to visit other people. He did not know Mick and Carole Wells. He had not seen Collins for the past 5 weeks, he had not been in the Fiesta and had not been in South Park Road, Maidstone on 10 October.
13. The grounds of appeal that were advanced in argument before us are all distinct and it is therefore convenient to consider each in turn. We will first deal with the grounds of appeal advanced on behalf of Collins.

Collins: the admission of evidence in relation to £10,300.00 in the Audi

14. Collins was given leave to appeal against the ruling of the trial judge that evidence could be given in relation to the finding of £10,300 in the Audi. The prosecution case was that Collins and those with him had gone with £10,300 as well as being armed because he and the others were determined to find out what had happened to the stolen cannabis; they were either going to use force or persuade Hutchinson that they were genuinely interested in buying by showing him that they had the money to pay. It was what was described as "a carrot and stick approach".
15. It was Hutchinson's evidence that at the Wells' house he never entered into negotiations that involved money. Although it was the account of Collins in his interview that he was going to pretend to be interested in buying the stolen cannabis, his explanation for the presence of £10,300 in the Audi was that he was going to look for a new car and the cash was to be used to pay for it. It was the prosecution's case that this was unlikely and he was going to use the money as "the carrot". There was no suggestion by the prosecution that the money was illicit, merely that it was available, if necessary to show the good faith of their intentions. At the trial, it was contended on behalf of the appellant that evidence of the finding of the £10,300 should not be admitted as it was of no probative value and that any probative value outweighed its prejudicial effect.
16. The judge ruled the evidence admissible:

"It is the prosecution's case that they went armed and further, they took with them some £10,000 in cash. The jury will be entitled, in my view, if it is admissible to ask themselves why. Does it support Hutchinson's account or not? The prosecution say it does because it shows that they were ready to do it by hook or by crook. They eventually chose violence, but they equipped themselves to deal with what I have described as a carrot as well as a stick. It seems to me a relevant question for the jury to consider. What they make of it and the comments and criticism, in my view, can be put to them but it seems to me that it is clearly admissible."

17. Evidence was then called on behalf of Collins (who, as we have said, did not give evidence) that the money had been obtained legitimately by his wife who was one of those who gave evidence. Indeed the Judge directed the jury that they might think it was quite obvious that she did get some money and was surprisingly lucky in the way she obtained it. His wife also gave evidence to the effect that the money was to be used to buy a car; she said she had been told by Collins that he was going to go and view a car; although she did not know that he had taken the money or was going to view the car on the day in question, she would not have objected if he had told her that he was going to use it for that purpose.
18. It was submitted on behalf of Collins that the evidence in relation to the finding of £10,300 in the car should not have been admitted. Hutchinson had not given evidence that he had been offered money; the sum found in the car was not consistent with the purchase price for any of the quantities of cannabis referred to in the evidence. In the circumstances, the prosecution case as to the use of the money was speculative.
19. We do not accept that submission. In our view it was perfectly proper for the prosecution to put their case in the way they did; it was common ground that the background to the case was an attempt to recover drugs which had been stolen; in those circumstances it was an obvious inference that those intending to recover it might have done so using violence or by providing an earnest of their ability to pay. The Judge correctly put the matter to the jury when he directed them that Collins had said in interview that, although he did not arrange to meet the buyer, it would be a reasonable expectation that the buyer would want some money. Although in fact the money played no actual part in what happened at the Wells' house, its presence in the car was entirely consistent with the prosecution case. It was perfectly proper for the jury to have the evidence before them in the circumstances.
20. Nor do we think that the admission of that evidence could, in any event, have had a prejudicial effect. This was a case where, as we have said, it was common ground that an attempt was to be made to recover stolen drugs as far as Collins was concerned. The fact therefore that he had with him a significant quantity of cash would not have been prejudicial.
21. For those reasons therefore, we consider this ground of appeal fails.

Collins: the lie told by Burt

22. We have referred at paragraph 8 to the untrue account of Collins and Burt's activities that evening which was given by Burt when he and Collins were stopped by police officers. It was not disputed that what Burt said was untrue and known by Collins to be untrue. In interview Collins was asked about the statement made by Mr Burt and asked why he did not correct Mr Burt when he told this lie. He answered "no comment". He was then asked why Mr Burt felt he had to include him in his statement about the public house; to that he answered that they would have to ask Mr Burt. He had earlier in his interview given an account which made it quite clear that what Mr Burt said was untrue.
23. The prosecution made it clear that they intended to treat the uncorrected lie made by Burt as evidence against both Burt and Collins. The Judge discussed with counsel the giving of a Lucas direction; although there was no transcript of the discussion before us, it is clear that the Judge was invited by counsel on behalf of Collins to rule that the lie could not be relied upon against Collins. The Judge declined to make that ruling and indicated that he would give a Lucas direction in respect of Collins.
24. The Judge accordingly directed the jury that they could draw no adverse inference from the failure to give evidence or to the "no comment" answers. He then proceeded to direct the jury in these terms:

"Well, first of all, in relation to the Burt matter, is it just him lying or is it just Mr Collins? The prosecution say it is both. The defence say it is only Mr Burt. Well, you have the circumstances. It may be of interest that it was Mr Burt who actually did the lying, but you remember that both were present, both were asked the question and Burt replied without Collins correcting it in any way. You may think that Collins was, by his silence, joining in the lie, but it is a matter for you. You would of course have to be sure. You have to be first sure that the person was lying.

Now if it was a lie you are entitled to ask why did he lie? You must remember that people lie for a variety of reasons. They can lie out of panic, to help someone else out rather than themselves, out of embarrassment, if they did not want to admit that they had done a different crime. Here no doubt, it will be said that it was excess alcohol. It is only if you are sure there was no innocent explanation that you can reject all possible reasons other than that the lie was made because the maker of the lie realised that to tell the truth would be damaging to him in relation to his guilt on the specific charge.

Could you conclude that it was ever against him? If you feel there may be an innocent reason then it matters not he lied if, however there is no innocent reason then it can be evidence regarded as going in support of the prosecution case."

25. Because of the circumstances in which Hutchinson had given his evidence, the judge quite properly directed the Jury that it would be wrong to convict any of the defendants on Hutchinson's evidence unless there was some supporting evidence. Amongst the matters upon which the Judge told the jury they could rely on as supporting evidence in the case against Burt and, depending how they regarded it, in the case against Collins, was the lie to the police officers.
26. It was submitted on behalf of Collins that the judge should not have ruled that the lie told by Burt could be evidence against Collins. The essence of the argument advanced to us was that Collins, at the time Burt told the lie, had not even been cautioned or arrested. If a person was entitled to maintain his silence on arrest or interview, how could his silence be said to amount to joining in a lie on which the prosecution could rely. If his silence or his failure to give an explanation was to be relied upon, then Collins was entitled to the protection set out in ss. 34, 35 and 37 of the Criminal Justice and Public Order Act 1994. This argument was, as counsel for Collins told us, raised for the first time in oral submissions to us; it had not been put to the trial judge or raised in the submission to the single Judge or in the skeleton argument provided to us. No notice of it had been given to the prosecution.
27. Once the argument was formulated in this way, we decided we should give leave to appeal, but gave the prosecution, at their request, time to consider the argument. The submissions on behalf of the prosecution which were then most ably and attractively made by Mr Hillen can be summarised:

i) The common law position was expressly preserved by the provisions of ss. 34, 36 and 37 of the Criminal Justice and Public Order Act 1994

ii) The common law right to silence existed independently of the caution, but was not, as the authorities made clear, an absolute right, but depended on the circumstances.

iii) In the circumstances, the lie was spoken on behalf of both of them by Burt; the jury could therefore properly have been left to determine whether Collins had joined in the lie.

28. There was no direct authority which counsel could find on the point. It is therefore useful to begin by referring to some of the authorities in relation to accusations made in the presence of the accused. It is convenient to begin with the summary of the common law position set out by Lord Atkinson in his speech in R v Christie [1914] AC 545 at 554:

"..the rule of law undoubtedly is that a statement made in the presence of an accused person, even on an occasion which should be expected reasonably to call for some explanation or denial from him, is not evidence against him of the facts stated save in so far as he accepts the statement, so as to make it his own. If he accepts the statement in part only, then to that extent alone does it become his statement. He may accept the statement by word or conduct, action or demeanour, and it is the function of the jury which tries the case to determine whether his words, action, conduct or demeanour at the time when a statement was made amounts to an acceptance of it in whole or in part… "

29. The application of that principle in a case where the accused had been silent in response to a statement made by a police officer was considered by the Privy Council in Hall v R (1970) 55 Cr App 108. In giving the judgment of the Board, Lord Diplock stated, after referring to the passage in the speech of Lord Atkinson, stated:

"It is not suggested in the instant case that the appellant's acceptance of the suggestion of Daphne Thompson which was repeated to him by the police constable was shown by word or by any positive conduct, action or demeanour. All that is relied on is his mere silence.

It is a clear and widely accepted principle of the common law in Jamaica, as in England, that a person is entitled to refrain from answering a question put to him for the purpose of discovering whether he has committed a criminal offence. A fortiori he is under no obligation to comment when he is informed that someone else has accused him of an offence. It may be that in very exceptional circumstances an inference may be drawn from a failure to give an explanation or disclaimer, but in their Lordship's view silence alone on being informed by a police officer that someone else has made an accusation against him cannot give rise to an inference that the person to whom this information is communicated accepts the truth of the accusation."

In answer to a submission that the principle only applied where a caution had been given, Lord Diplock went on to observe:

"The caution merely serves to remind the accused of a right which he already possesses at common law. The fact that in a particular case he has not been reminded of it is no ground for inferring that his silence was not in the exercise of that right, but that was an acknowledgement of the truth of the accusation."

In the circumstances, it was decided that the silence of the defendant was not evidence against him.

30. In a further case in the Privy Council, where the judgment of the Board was also given by Lord Diplock, Parkes v R (1976) 64 Cr App R 25, the accusation had been made by the victim's mother when no police officer was present and the defendant had reacted by threatening her; the Board concluded that this was a case where the direction given by Cave J in Mitchell (1892) 17 Cox CC 503 at 508 was applicable:

"Now the whole admissibility of statements of this kind rests upon the consideration that if a charge is made against a person in that person's presence, it is reasonable to expect that he or she will immediately deny it, and that the absence of such a denial is some evidence of an admission on the part of the person charged, and of the truth of the charge. Undoubtedly when persons are speaking on equal terms and a charge is made, and a person says nothing, and expresses no indignation and does nothing to repel the charge, that is some evidence to show that he admits the charge to be true."

31. The observations of Lord Diplock in Hall were considered by this Court in Chandler (1975) 63 Cr App R 1. The defendant had, when interviewed by the police in the presence of his solicitor, refused to comment on allegations put to him by the police officer. Lawton LJ after referring to the passages in Hall which have set out at paragraph 29, stated:

"We have reservations about these two statements of law because they seem to conflict with Christie and with earlier cases and authorities. … The law has long accepted that an accused person is not bound to incriminate himself; but it does not follow that a failure to answer an accusation or question when an answer could reasonably be expected may not provide some evidence in support of an accusation. Whether it does will depend upon the circumstances."

32. After referring to Christie and to some older authorities he drew attention to the observations of Cave J which we have set out at paragraph 30. Then, after referring to Professor Sir Rupert Cross' view that the decision in Mitchell was a "broad principle of common sense" and to other authorities, he concluded:

"It would be unfortunate if the law of evidence was allowed to develop in a way which was not in accordance with the common sense of ordinary folk. We are bound by Christie and not by Hall: and Christie, in our judgment, does accord with common sense."

On the facts of the case, therefore, as the defendant and the police officer were speaking on equal terms because the defendant had his solicitor present, the judge would have been entitled to direct the jury that they could consider whether the defendant's silence amounted to an acceptance of what the police officer had said.

33. This decision was followed in Raviraj (1986) 85 Cr App 93 and in Horne [1990] Crim L.R. 188; in the second of these cases, the victim of a glassing had without prompting identified the defendant, in the defendant's presence and the presence of police officers, as the person who had glassed him; the defendant had remained silent. This Court held that where some protest or denial might be expected, a jury was entitled to take into account the fact that an accused had said nothing; whether or not some reply was expected was a question of fact for the jury.
34. From the authorities to which we have referred, it is clear that where an allegation is made against the accused in his presence:

i) It is for the jury to determine whether a statement made in the presence of the accused calls for some response;

ii) If it does, and if no response is made, the statement can only be evidence against the accused if by his reaction to it, he accepts that statement as true; although that is a question for the jury to determine, mere silence cannot of itself amount to an acknowledgement of the truth of an allegation.

iii) A distinction is made in the authorities between cases where the defendant is on equal terms with those making the accusation (in which case silence may be used against him) and those where the defendant is at a disadvantage (in which case silence cannot be used against him).

35. The issue in the present case did not concern an accusation made against the appellant, but an untruthful statement made by a companion in answer to a question from the police addressed to both the appellant and his companion. However, we consider that similar principles are applicable where circumstances arise where an important question is asked in the presence of the accused and an answer given and the issue arises as to whether he has joined in the answer; we consider therefore that a jury was entitled to consider whether his reaction to that question and answer could amount to his adoption of that answer, provided that the jury were directed first to consider the question as to whether in all the circumstances, the question called for some response from the defendant and secondly whether by his reaction, the defendant adopted the answer made.
36. We have referred at paragraph 23 to the discussion before the judge in relation to this evidence and at paragraph 24 set out the direction; the discussion took place and the direction was given by the judge in circumstances where the argument advanced before us was not addressed to him and where he was not therefore directed to the authorities. In the first place, therefore, there was no exploration of the evidence in relation to the appellant's reaction to the question and answer to see if there was any evidential basis on the facts of this case on which the issue could be left to the jury; on the materials before us, we are unable to conclude that there was any evidential basis. Mere silence in the context of the single question asked and the answer given by Burt, without more, would not provide a sufficient evidential basis for leaving to the jury the question of whether by his reaction, Collins was adopting that answer; mere silence could have been the exercise of his right to silence in the response to the question asked, particularly when the question was asked by a police officer and the parties were not on equal terms
37. Even if there had been an evidential basis and the parties had been on equal terms, the judge did not provide a sufficiently full direction to the jury. He did not direct them to consider whether, in the light of the right of a defendant not to incriminate himself and to remain silent, the circumstances were such that the question asked and the answer given by Burt called for some response and, whether by his reaction, Collins adopted the answer.
38. It was contended on the appellant's behalf that there would be a breach of Article 6 (1) if the appellant's silence could be held against him; we do not agree, provided, in the light of Condron v UK (2001) 31 EHRR 1, the direction of the judge properly reflects the balance required.
39. We consider that, for the reasons given that there was no evidential basis on which to leave the issue to the jury and, in any event, the direction to the jury was not sufficient. In the circumstances, and because this was a matter that the jury were told they could use as support for the evidence of Hutchinson, we have concluded that the convictions on counts 1 and 2 cannot be said to be safe. We accordingly quash them.

Keep: the direction in respect of the use of the evidence of count 3

40. We now turn to the two grounds of appeal advanced on behalf of the appellant Keep.
41. On count 3 of the indictment, as we have already stated, Keep was charged with doing an act tending and intended to pervert the course of justice. Evidence was given that he threatened Mr Stych with violence unless he persuaded Hutchinson to drop the kidnapping charges. It was Mr Stych's evidence that Keep rang him and was threatening; he was told by Keep that he had 24 hours to get the gear and money and to get Hutchinson to drop the charges. Although Keep, as we have said, did not give evidence, the case put to Mr Stych in cross-examination was that he was lying.
42. The ground of appeal advanced on behalf of Keep in respect of this evidence related to one short passage in the judge's summing up where the judge said:

"Now, on Mr Stych's evidence, if he is to be believed, Mr Keep made what you may think amounts to an admission of guilt in respect of counts 1 and 2 and, at the very least, shows clear knowledge of the matter and that he has an interest in it. You may think that when we look at it, that it really amounts to an admission. What he had to say is only evidence in Mr Keep's case.

If Stych is right as to what is said then, as I say, that may well be evidence against Mr Keep not only to count 3 but counts 1 and 2, but it is not evidence in anyone else's case and, when considering other peoples cases, should be ignored".

At the very end of his summing up the Judge returned to consider the prosecution case against Keep and concluded:

"They invite you to consider what Stych had to say according to what Keep was saying. But if Stych is substantially right, then it constitutes they say an admission. Again, if the case is so strong that you might look for an explanation they would invite you to bear in mind as support the fact that Mr Keep did not give evidence."

43. It was submitted on Keep's behalf that the judge misdirected the jury when he told them, in the passage as set out above, that what Keep said to Mr Stych was capable of amounting to an admission in relation to counts 1 and 2. It was accepted on behalf of Keep that the account given by Stych could amount, in relation to counts 1 and 2, to evidence showing that Keep knew of the matter and, had an interest in it; indeed it was accepted in the absence of any evidence from Mr Keep it might amount to a substantial piece of evidence on which the prosecution might rely.
44. Nonetheless, it plainly was not an admission, as Mr Hillen on behalf of the prosecution quite properly accepted. However the judge had already given proper directions in relation to counts 1 and 2; it is clear to us that in the use of that word "admission" the judge clearly made a slip of the tongue. No one noticed it at the time; plainly it can have made no impact on those listening to the summing up, as those present would have had a duty to point out such a slip of the tongue. Nor reading the whole of the summing up and considering the context can we accede to the submission that this was a material misdirection which would have had any impact upon the decision of the jury. There is no substance in this ground of appeal.

Keep: the direction in respect of P.C Parlour's evidence

45. We turn to the second ground of appeal. We have already briefly referred to the fact at paragraph 8 that police followed the Audi until it was abandoned in the vicinity of South Park Road, Maidstone. The police gave chase to those who had been in the car; as we have stated two of those were Collins and Burt.
46. There was evidence from a resident of South Park Road that three men had been seen leaving the garden, two of those were seen going in the direction to the point where they were stopped by the police. The third was seen walking. P.C Parlour, who was in a police car which had turned into South Park Road, gave evidence that he had seen three or four men run away into the alleyway at the back of South Park Road. He spoke to a householder and went back to the roundabout where he saw that Collins and Burt had been stopped. He then saw a man who was walking in an adjoining road. His evidence was that he saw him across the roundabout 50-75 yards near Devon Way away for about 5 seconds. He thought he recognised the man as Keep, a man he had known for 20 years but was not 100 per cent sure.
47. It was not disputed that P.C Parlour had known Keep for 20 years, but it was the defence case that P.C Parlour was lying. Subsequently P.C Parlour picked out Keep as the man whom he had seen walking that evening.
48. The judge directed the jury in respect of PC Parlour's evidence:

"He thought that it was Carson Keep but he was not 100 percent sure. He had known him for 20 odd years. He had him under observation for about 5 seconds. The man did not run away. He went back to speak to the redoubtable Mrs Dunne. He said he was a person I thought was Keep, Carson Keep was the first name that came to mind but it was 50-75 yards away and across the roundabout. Of course he was not sure. That is not identification. You cannot say to yourselves Parlour identified him as Keep. The furthest you can take it is that Parlour saw someone who looked like or very much like Mr Keep but it is not identification of Keep. If you were, I would be warning you about the dangers of identification because it is all too easy to make a mistake about identification. It may be that realisation that makes Parlour say that he cannot be sure……

On 16 January at the identification parade he picked out Mr Keep as walking up Devon Way. If he is right and Keep is wrong what he is doing is identifying the man who he knows is Mr Keep it does not add anything to the evidence."

49. No objection was taken (or could have been taken), to what the Judge said there. If that is all the Judge had said then no point would have arisen. However when directing the jury as to the matters they could take into account as lending support to Hutchinson's evidence for the reasons we have given at paragraph 25, the judge had said:

"As to Mr Keep, there is the fact that Mr Parlour, if he is to be believed – you will remember he is accused of lying so you will have to consider that – saw someone who looked like Mr Keep. There is no question of that evidence meaning it was Mr Keep, that would be impossible to conclude on Parlour's evidence alone, but the fact of the matter is that it does show that in the area of what you may think is a relevant time, there is someone who looks like Mr Keep."

50. The Judge had been requested by counsel on Keep's behalf to give a Turnbull direction; he had declined to do so on the basis that there was no identification of Keep and so such a direction was unnecessary. Indeed that was the way in which the Judge directed the jury in the first passage to which we have referred at paragraph 48. However it is the passage to which we have referred at paragraph 49 that gives rise to this ground of appeal.
51. It was submitted that in that passage the judge was in fact directing the jury that they could make use of P.C Parlour's evidence as showing that there was someone who looked liked Keep in the area at the time as support for Hutchinson's account; as the Judge was in effect directing the jury they might take into account the evidence of P.C Parlour as showing that there was a man who looked like Keep in the area, then a Turnbull direction should have been given.
52. It was submitted on behalf of the prosecution that a Turnbull direction was not necessary, where the evidence was not a specific identification but only evidence to the effect that it was someone who looked like someone known to the witness; that was in reality evidence of description rather than evidence of identification by facial features.
53. In submissions that were again put forward with great clarity and to which we are much indebted, Mr Hillen relied on R v Gayle [1999] 2 Cr App Rep 131 and R v Doldur [2000] Crim. L.R. 178. Both of these cases concerned the question of whether an identification parade should have been held where the person who had seen the defendant was only able to give evidence as to a general description of the clothes and general appearance of the defendant but not his facial features. In both cases it was held that an identification parade was not necessary in those circumstances. In Gayle, Henry LJ explained the reason for the distinction at 135:

"the special need for caution before conviction of 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."

54. The evidence given by P.C Parlour in the present case was not evidence of the general description of the person he saw; it was evidence that the person looked like a man he had known for 20 years by reason of his general appearance, including his facial appearance.
55. If it was not identification evidence, as the Judge thought, then it could not contrary to the Judge's direction which we have set out in paragraph 49 lend any probative support to Hutchinson's account. The fact that someone was in the vicinity who looked liked Keep would have little probative value independent of the strength of the quality of the identification of the person as Keep. If therefore the evidence was to be used to link Keep to the presence in the area where the Audi had been abandoned, then, as that evidence depended upon the accuracy and strength of P.C Parlour's evidence about the person he had seen, we consider this to be a case where a Turnbull direction was necessary. In essence, the evidence could only be relied upon by the prosecution as showing that Keep was in the vicinity because at a distance of 50-75 yards at night P.C Parlour had thought it was Keep, someone he had known for 20 years. If the prosecution were to rely on that evidence as proving Keep was in the vicinity, and it was a matter for the jury to assess the strength of that evidence, then the jury should have been warned of the dangers that, if they concluded that PC Parlour was an honest witness, he might nonetheless have made a mistake in thinking that the person was Keep, someone whom he had known for 20 years.
56. In the circumstances, we consider that the approach taken by the Judge was mistaken given the reliance placed by the prosecution on the evidence as linking Keep to the scene; as this was one of the significant matters advanced against Keep and upon which the jury might have relied, we cannot conclude that the conviction of Keep was safe.
57. On this ground alone, therefore we allow the appeal of Keep against his conviction on counts 1 and 2 and quash those convictions.