England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2 Thursday, 13th October 2005

1. LORD JUSTICE GAGE: On 26th May 2005 this appellant was convicted at Snaresbrook Crown Court of an offence of robbery. He was sentenced on 10th June 2005 to a 21 months' detention and training order. He appeared at trial together with a co-accused, Faiysal Ali. Faiysal Ali was also convicted of robbery. He was sentenced to 30 months' detention in a Young Offenders Institution. This appellant appeals against conviction with leave of the Single Judge.
2. The background evidence and facts can be comparatively shortly stated. At approximately midnight on 7th December 2004, David Luchman, the complainant, was walking along McKenzie Road in Islington when he saw a group of three males on the other side of the road walking towards him. One member of the group, Faiysal Ali, crossed onto Mr Luchman's side of the road and approached him. Ali asked Mr Luchman for the time but Mr Luchman said that he did not know what time it was. Mr Luchman felt threatened by the situation and he handed over his wallet, which contained £225. The males then left the scene and Mr Luchman flagged down a police car. He pointed to three males, one of whom was Mr Ali and another the appellant, each of whom were arrested shortly.
3. In his evidence Mr Luchman said that, as he was walking along the road, he was approached by three males who had been on the other side of the room. They crossed onto his side of the road and the male at the front of the group, Ali, asked him for the time. He told the male that he did not know what the time was and then noticed that the other two males stood closely behind him. He described the males as surrounding him. He saw that two of them had their hands in their pockets, which led him to believe that they had weapons. He then gave them his wallet, containing £225. One of them, a man with a hat on, took the money out and handed the wallet back to him. The three men than began to leave, at which point Mr Luchman said he waved to a passing police car which stopped. He pointed to the three males, who were making off in the direction of the Caledonian Road. He said that the first man to approach him was now approximately 30 feet away but still the nearest to him. The second man was trying to bluff his way by walking. He said that, apart from the three men, there was nobody else in the vicinity. He said all three men were involved in the robbery.
4. A police officer, Police Constable Hill, in a witness statement made after the event, said:

"As our vehicle drew level with the third male, an Asian man, he shouted out that the two men that he was chasing had stolen his money."

If that statement were right, Mr Luchman was at that time saying there were only two men who approached and robbed him.

5. What happened then was that this appellant was stopped by the police officers and arrested. When he was stopped, he gave a false name and when he was being handcuffed he broke free and ran off. He was subsequently arrested and taken to the police station. At the initial arrest, he was subjected to a search and nothing connected with the robbery was found on him. His case was that he had been walking along on the other side of the road. He had seen, on the opposite side of the road, three men and another man. They were chatting together. He was not involved with what they did. He said that, after that short incident, two people ran past him. Seeing them running, he started to run himself and was subsequently apprehended by the police.
6. In cross-examination, when asked the question, "was there anyone else in the street at the time", the judge recorded his answer as set out in the summing up at page 12E:

"'There was me, them two, that boy, the boy that got robbed and the police car. I hadn't seen nobody else'. As to saying his co-accused might have been one of those involved in the incident, he thought he might have misunderstood the question."

7. The issue at trial, as put to the jury by the prosecution, was whether or not this appellant had participated in the robbery. The Crown's case was that it was not an identification case; the sole issue for the jury was participation, the appellant admitting presence at the robbery. The judge accepted that submission and the case was dealt with by the judge on the basis that the sole issue for jury was whether or not this appellant had participated in the robbery.
8. Counsel then appearing for the appellant submitted to the judge that it was not a participation case, that the issue in the case was one of identification. Counsel sought a direction from the judge on Turnbull lines and further sought to persuade the judge that there ought to have been an identification parade. In the notice of appeal and the skeleton argument, there are four specific and separate grounds for appeal but, as argued before this court, realistically, by Mr Jones on behalf of the appellant and Ms Robins on behalf of the prosecution, the real issue is whether the judge was right to hold that the issue was solely one of presence and not one of identification.
9. The Crown's case was at trial that the victim stated that he was surrounded by three men. There were only the three men and himself in the vicinity and therefore, if the jury were satisfied that there were only those three there, in addition to the victim, then the conviction must inevitably follow.
10. The appellant's case was on the contrary: it was not an identification case and there was no sufficient evidence to identify him as one of those who took part.
11. It is, we think, unnecessary to deal with all the grounds of appeal individually. As we have said, the essence of the this appeal is that the judge, from an early stage, formed the view that this was not an identity case. The expression of this view is to be found in a direction which was given in the summing up and appears at page 8 of the transcript and on to page 9. At page 8G, he said:

"If there were only three people other than the victim of the robbery in the street, it is not possible for both defendants to be speaking the truth when each said it was the other two people present with the victim who committed the robbery. In each case one of those two people must be the other defendant, must he not? And if there was nobody else in the vicinity it is not possible for the police to have arrested anyone other than two of those who were present and took part in the robbery. If that be so, it matters not what each of the defendants was wearing. There is no room for mistake and if that be your view, any need for caution as to the identification of suspects or as to the need for identity parades will be irrelevant.

"These safeguards may be significant in cases where it is possible that of many people present at the scene of a crime only one or two are suspected of having committed the offence or where there is a significant difference in time between the commission of the offence and a suspect being apprehended. Here it is admitted, is it not, that each of the defendants was one of the only three people, two of whom each defendant admits, if not asserts, must have robbed Dave Luchman, on whose evidence it is plain that all three were involved.

"Where known suspects such as Faiysal Ali and Abdi Muhidinz admit presence at the scene of a robbery, but deny criminal participation in it, they are not disputing identification and no further identification, whether from their photographs being shown with others or by way of an identity parade, is either necessary or appropriate."

"If, of course, you took the view that there might have been some other person in Mackenzie Road at the material time, then, of course, it would be possible to argue that there may been a mistake in the identification of one or other of the robbers of whom these defendants are said to be two."

12. On behalf of the Crown, Ms Robins submits that, by accepting that he was on the other side of the road, the appellant was admitting presence at the scene of the robbery and that was the sole issue.
13. In our judgment, this was an identification case. Put in its simplest form, the question was: was the appellant one of at least three men which Mr Luchman said had confronted and attacked him. Mr Luchman said that he was and the appellant said that he was not. The appellant's case was that he was on the other side of the road. The judge, as we have indicated, appears to have thought that an admission that he was on the other side of the road was an admission that he was present at the scene of the crime. In our judgment he was wrong to do so. Code D 3.12 of the current codes of practice, which deal with identification by the witnesses, requires an identification parade to be held whenever:

"i) a witness has identified a suspect or purported to have identified a suspect prior to any identification procedure set out in paragraphs 3.5 to 3.10 having been held; or

Ii) there is a witness available, who expresses an ability to identify the suspect, or where there is a reasonable chance of the witness being able to do so, and the witness has not been given an opportunity to identify the suspect in any of the procedures set out in paragraphs 3.5 to 3.10,

"And the suspect disputes being the person the witness claims to have seen, an identification procedure shall be held unless it is not practicable or it would serve no useful purpose in proving or disproving whether the suspect was involved in committing the offence. For example, when it is not disputed that the suspect is already well known to the witness who claims to have seen the suspect commit the crime."

14. In his witness statement Mr Luchman said that he could "probably recognise him if I saw him again". He was, in that passage of his statement, referring to the man in the hat who had run off, he said, with his money. The prosecution case was that that was this appellant. No identity parade was held. In R v Forbes [2000] 1 AC 473, it was held that in such circumstances it will be a breach of the code if the police fail to conduct an identity parade. Such a breach may not be fatal to a prosecution but it will require a direction by the judge that the defendant has been deprived of an essential safeguard, namely the right to challenge the victim's evidence and to see if the victim can identify him as the person who committed the offence. As my Lord His Honour Judge Wide put to counsel for the prosecution, Ms Robins: suppose an identification parade had taken place and the witness, Mr Luchman, had, in response to the parade, said that there was nobody there who was present at the scene. That would, of course, have been a very powerful point in favour of the appellant.
15. Against that, the prosecution case against this appellant was a strong one. The appellant was running away from the vicinity where the offence was committed when he was stopped by the police. When stopped, he gave a false name and successfully broke free from the officer holding him. These admitted actions are not wholly consistent with an innocent explanation of why he was in the vicinity of the robbery. On the other hand, the description by the victim in evidence was not completely consistent with the appellant's description of how he appeared on the day of incident. Further, on an initial search when first stopped, the appellant was not found to be in possession of the money which Mr Luchman said had been taken by the man who had confronted him. If an identification parade had been carried out and Mr Luchman had, as we have said, failed to identify the appellant, there can be no doubt that this would have strengthened the appellant's case.
16. In our judgment, the judge should have directed the jury that the appellant had been denied the benefit of that safeguard and that fact should be taken into account in its assessment of the whole case giving it such weight as is thought fair. Strong as the case against the appellant may have been, in our judgment this omission amounts to a misdirection, which renders the verdict of the jury unsafe and accordingly we quash the conviction.
(Submissions re retrial were then heard)