England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		8 February 2007

Thursday 8 February 2007

LORD JUSTICE HOOPER: I will ask Dame Heather Steel to give the judgment of the court.

DAME HEATHER STEEL:

1. On 29 September 2006, in the Newcastle Crown Court before His Honour Judge Faulks and a jury, the appellants were convicted of two offences. Count 1 charged an offence contrary to section 20 of the Offences against the Person Act 1961, the particulars being that on 25 December 2005 they unlawfully inflicted grievous bodily harm upon Craig Mitchell. Count 2 charged an offence contrary to section 47 of the Offences against the Person Act 1861, the particulars being that on 25 December 2005 they assaulted Martin Platt thereby occasioning him actual bodily harm. Count 3 of the indictment was severed and on the direction of the judge the jury convicted Nicky Eastlake of breaching an Anti-Social Behaviour Order made under section 1 of the Crime and Disorder Act 1998 on 22 November 2004 by Tynedale Magistrates' Court. On 19 October 2006, they were each sentenced to 18 months' detention concurrently in a young offender institution on counts 1 and 2. Nicky Eastlake was sentenced to a concurrent term of six months' detention in a young offender institution in respect of count 3.

2. The appellants appeal against their convictions by a certificate from the trial judge that the case is fit for appeal on ground 1, and by leave of the single judge in respect of grounds 2 and 3 which concern the appellant Nicky Eastlake.

3. The first ground of appeal, as set out in the certificate of the trial judge, reads:

   "Under the provisions of section 101(1)(d) and section 103 of the Criminal Justice Act 2003 should evidence of a relevant propensity to commit offences be capable of supporting the accuracy and reliability of identification evidence when identification is the only issue in the case?"

4. The single judge gave leave in respect of grounds 2 and 3, which concern Nicky Eastlake. Ground 2 is that the judge erred in not withdrawing the case from the jury after a submission of no case was made in accordance with R v Turnbull [1977] QB 224; and ground 3 is that the judge erred in not referring adequately in his summing-up to the weaknesses and circumstances of the identification of the appellant. We are grateful to Mr Bloomfield on behalf of the appellant Kevin Scott Eastlake and Mr Walker on behalf of the appellant Nicky Eastlake, and also to Mr Gatland on behalf of the prosecution for their submissions and for the authorities which have been supplied to this court.

5. The brief facts of the offences are that at about 11.15pm on 25 December 2005 a group of seven teenagers, which included the two complainants, Craig Mitchell and Martin Platt, were walking along Elsdon Avenue in Seaton Delaval in Northumberland. They had been to a party and were making their way home when the encountered a group of three males, two of whom assaulted Martin Platt (aged 16) and, when he attempted to intervene, Craig Mitchell. Martin Platt suffered two black eyes and a swollen jaw. Craig Mitchell had one tooth completely knocked out and two further teeth were broken. He required extensive dental treatment.

6. After the attack, all three males ran off, two in one direction and one in another. One of the three males had shouted at one of the attackers, "Come on, leave it Scott", or words to that effect. There was no dispute that one of the three males had stood and watched the attack and took no part in the assaults.

7. The appellants were arrested on 26 January 2006. In their respective interviews they gave accounts that they had spent the evening in a social club on Elsdon Avenue before walking together to their home addresses some two or three minutes away from the club. Both stated they were home with their family from about 10.30pm to 10.40pm. Kevin Scott Eastlake agreed that he was known as Scott.

8. On 10 February 2006, a series of identification procedures were carried out with five witnesses from the group of seven. Ross Mitchell, who was aged 13 and the brother of the complainant Craig, identified the appellant Nicky Eastlake; and Jessica Platt identified Kevin Scott Eastlake.

9. At the trial both appellants relied on alibi and asserted that the identification of them by witnesses was mistaken. There was no other direct evidence against them. At trial they each gave and called evidence in support of their defence. No complaint is made by either appellant in respect of the directions given to the jury as to how they should approach the alibi evidence.

10. The Crown sought leave to adduce evidence of bad character of the appellants by way of their propensity for violence pursuant to section 101(1)(d) and section 103(1)(a) of the Criminal Justice Act 2003. The judge ruled that the evidence should be adduced.

11. The first ground of appeal which is pursued on behalf of both appellants is the one on which the trial judge (unusually) issued his certificate that the case was fit for appeal. Both appellants attack the judge's decision to admit into evidence, pursuant to section 101(1)(d) and 103 of the Criminal Justice Act 2003, the previous convictions of the appellants.

12. In the case of each brother the previous convictions to which the bad character application related were for common assault. Scott Eastlake had four such convictions: one on 12 January 2004 for two offences committed in an incident in the street on 10 November 2003, one on 6 April 2004 for an offence of street violence on 6 February 2004, and one on 16 November 2004 for an offence of street violence committed with his brother on 13 August 2004. Nicky Eastlake was convicted of one such offence on 7 June 2004 for an assault committed on 17 April 2004, and was convicted in the youth court on 16 September 2004 for an offence committed with his brother in August. Although Nicky Eastlake had other previous convictions, they were not sought to be introduced into evidence.

13. Section 101(1)(d) of the Criminal Justice Act 2003 reads as follows:

    "(1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if --

    ....

    (d) it is relevant to an important matter in issue between the defendant and the prosecution

    ...."

    That section is supplemented by section 103 which, insofar as it is relevant to this case, reads as follows:

    "(1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include --

    (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;

    ....

    (2) Where subsection (1)(a) applies, a defendant's propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of --

    ....

    (b) an offence of the same category as the one with which he is charged."

    Mr Bloomfield draws attention to subsection (3) which reads:

    " Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case."

14. The argument advanced to the trial judge was essentially based on the judgment in R v Hanson and Others [2005] 2 Cr App R 21, [2005] EWCA Crim 824. At paragraph 10 Rose LJ said:

    "In a conviction case, the decisions required of the trial judge under section 101(3) and section 103(3), though not identical, are closely related. It is to be noted that the wording of section 101(3) -- 'must not admit' -- is stronger than the comparable provision in section 78 of the Police and Criminal Evidence Act 1984 -- 'may refuse to allow'. When considering what is just under section 103(3), and the fairness of the proceedings under section 101(3), the judge may, among other factors, take into consideration the degree of similarity between the previous conviction and the offence charged, albeit they are both within the same description or prescribed category. For example, theft and assault occasioning actual bodily harm may each embrace a wide spectrum of conduct. This does not however mean that what used to be referred to as striking similarity must be shown before convictions become admissible. The judge may also take into consideration the respective gravity of the past and present offences. He or she must always consider the strength of the prosecution case. If there is no or very little other evidence against a defendant, it is unlikely to be just to admit his previous convictions, whatever they are."

15. It was submitted that this was a weak case, being based solely on the identification of each of the two brothers by a single witness and that the Crown sought to bolster a weak case with bad character evidence, which would distract the jury from their task of dispassionately evaluating the reliability of the identification evidence. The judge summarised the argument and ruled as follows:

    "The application is made under gateway (d), the propensity gateway.

    The prosecution put their reasoning in this way. This is an identification case. One prosecution witness picked out Kevin Scott Eastlake, another prosecution witness picked out Nicky Eastlake. They are brothers; their defence statements put themselves together that night. The identifications have been examined in some detail and they are not of the strongest. However, one identification of one brother in a sense supports the identification of the other brother since the brothers themselves put themselves together that night.

    Additionally, there is the fact that one or more of the witnesses heard reference to the name 'Scott'. The prosecution say that the fact that these two defendants have previous convictions for street violence supports the accuracy of the identifications because it would be a remarkable thing if two people with previous convictions for street violence should have been identified rather than someone representing presumably 99.9% of the rest of the population who do not have convictions for street violence, so they say it goes to support the prosecution case in that way because they have identified someone who has a propensity to violence, so it is a mater which is relevant to something in issue between the parties.

    The defence submit that this is a weak case. I have already said in my view the identifications are not of the strongest, and they point to Lord Justice Rose's observations in the case of Hanson [2005] 2 Cr App R 21, [2005] EWCA Crim 824 saying that bad character should not be adduced to bolster a weak case.

    Alternatively, it is said that in any event it would be unjust to admit those convictions because the jury view would be likely to be clouded by the knowledge of those convictions and they would be unable to properly assess the strength or otherwise of the identifications.

    There is, I accept, some force in those submissions. However, I am conscious that the Judicial Studies Board guideline for directing a jury about bad character is a very strong one and I am satisfied, having given the jury a direction on identification and the dangers thereto and the new guideline direction on bad character, that the jury would properly be able to assess the strength of the identification without injustice to the defendants.

    So in the circumstances, although I accept that it is a borderline matter, I am prepared to allow the evidence of bad character to be adduced."

16. Before us, counsel for both defendants (Mr Bloomfield on behalf of Kevin Scott Eastlake and Mr Walker on behalf of Nicky Eastlake who adopted his arguments) have renewed those submissions. But they also put their argument in another way: that the bad character evidence was not relevant at all. The submission is that the issue in this case was one of the correctness of the accuracy and reliability of the identification evidence; that the bad character evidence should not have been admitted because it was not relevant to that issue; and that it should have been excluded on the ground of lack of relevance.

17. Mr Bloomfield develops the argument before us in this way. The defence was alibi. The appellants deny that they were present at the time of the offence. The jury's task was to assess, in the light of all the evidence, whether they were sure of the accuracy and reliability of the identifications. There was no dispute at the trial that the victims were attacked. The two men who attacked them (whoever they were) were the sole aggressors. The bad character evidence, if it indicated a propensity at all, indicated a propensity to be an aggressor. Since the defence here was that the appellants were not present, the character evidence was not relevant.

18. Mr Walker on behalf of Nicky Eastlake puts the matter in very similar terms. He submits that the bad character evidence did not make it any more likely that the two appellants were at the scene, which was the real issue that the jury had to decide.

19. We do not accept this submission. The jury had to decide whether the two appellants were the two young men who committed the offence. The evidence of bad character was capable of establishing that they had a propensity to commit an offence of street violence, and to do so together. That evidence was capable of lending support to the conclusion which the Crown invited the jury to reach, namely that the two appellants were correctly identified as those who committed the attack. This is so even though there was no dispute in the trial that those who committed it, whoever they were, acted as aggressors.

20. The second submission, as we have indicated, is effectively the argument which was advanced to the trial judge, based on Hanson [2005] 2 Cr App R 21, [2005] EWCA Crim 824, that this was a weak case of identification and that the admission of the bad character evidence unbalanced the trial to the extent that it was no longer a fair trial for the two appellants.

21. In our judgment the judge was fully entitled to reach the conclusion which he reached. He held that, properly directed both as to identification evidence and as to the significance which they could properly attach to the bad character evidence, the jury could assess the case without injustice to the appellants.

22. In Hanson Rose LJ said at paragraph 15:

    "If a judge has directed himself or herself correctly, this court will be very slow to interfere with a ruling either as to admissibility or as to the consequences of the non-compliance with the regulations for the giving of notice of intention to rely on bad character evidence. It will not interfere unless the judge's judgment as to the capacity of prior events to establish propensity is plainly wrong, or discretion has been exercised unreasonably in the Wednesbury (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) sense...."

    In our judgment the judge directed himself properly. His decision cannot be said to have been an unreasonable one as defined in that paragraph.

23. The judge said that the decision was a borderline one. He accepted the submission of defence counsel that the identifications were not strong. In our view this was a somewhat generous approach to the facts of the case. True it is that each brother was identified by only one witness. But the fact that the two persons identified were in fact brothers, who on their own account had spent the evening together and had been in the club from which the assailants were seen to leave, was itself a powerful factor in support of the correctness of the identifications. Some further support was provided by the evidence of the name "Scott" being heard at the time of the offence. We would not ourselves have regarded this as a weak case.

24. Against this background there was a clear case for admitting the joint conviction arising from the incident on 13 August as evidence of propensity to commit a joint offence of this sort. On the information before the judge, the other individual offences were of a similar type and they too were rightly admitted pursuant to section 101(1)(d).

25. This case exemplifies the paradox inherent in the admission of bad character evidence of this sort. The previous convictions were of recent date and for offences similar to (albeit less serious than) those charged in this indictment. The more recent and similar the previous convictions are, the more powerfully they may indicate a relevant propensity; but those factors may strengthen the argument that they should be excluded to avoid the risk of the trial becoming unbalanced by their admission into evidence.

26. The safety valve is of course the giving of proper directions to the jury. There is some criticism of other parts of the summing-up made by Mr Walker on behalf of Nicky Eastlake, but none by either counsel of the directions relating to the bad character evidence. These are clear at page 8 of the summing-up when the judge directed the jury as follow:

    "In this case you have heard each defendant has previous convictions for assault. Now, it is important that you should understand why you have heard that evidence and how you may use that information. I will explain in more detail, but you must not convict either defendant simply because he has a bad character.

    You have heard of those convictions because the prosecution submit they indicate a propensity to commit offences of violence similar to that with which each defendant is charged. The prosecution submit to you that that is a relevant matter to bear in mind when assessing whether or not the identifications can be relied on, because the witnesses have not identified two apparently law-abiding members of the public but two naughty boys who have engaged in street violence in the past.

    As I have said, bad character cannot of itself prove guilt. It would therefore be quite wrong for you to jump to the conclusion that either defendant is guilty just because of his previous convictions, but in the context of this case it is simply an additional factor for you to weigh up when considering whether those identifications are accurate. You have to decide to what extent, if at all, you are assisted by the knowledge of those convictions."

    The jury having been given those directions in clear terms in a concise summing-up, we conclude that the admission of the bad character evidence does not render these convictions unsafe.

27. In his second ground of appeal Mr Walker, on behalf of Nicky Eastlake, submitted that the case should have been withdrawn from the jury at the close of the prosecution case on the basis that the identification evidence amounted only to a fleeting glimpse made in difficult circumstances and was not therefore something upon which a jury properly directed could convict. The evidence of Ross Mitchell had been that at the time of the incident he saw three men coming from the direction of the club, one of whom had a glass in his hand. One of the men asked him what the commotion was about and Ross Mitchell told the man that it was his brother who was drunk. The man asked if he wanted him sorting out, but he said no. He said that the man was wearing a white top and that he spoke to the man for about 30-60 seconds. He was nervous about what could happen and that he and Matthew Hall went out of the way of potential trouble and he did not see the attack on the complainants. At the identification procedure he was asked by the police officer who conducted it, "What did this person do?", to which he replied, "I don't know". It was submitted that, even if the identification made by Ross Mitchell was correct, he had merely identified the appellant Nicky Eastlake as one of the three males, one of whom had not participated in the attack.

28. On 28 September, having been referred to the case of Turnbull, the judge ruled on this submission as follows:

    "This is a submission made on behalf of Nicky Eastlake that I should withdraw his case from the jury on the basis that the identification of him was in effect a fleeting glimpse made in difficult circumstances and therefore not something upon which a jury properly directed could reasonably convict, and I am referred to the well known case of Turnbull in that regard which states that in such circumstances a judge should withdraw a case from the jury unless there is some other evidence, which need not be corroboration in the strict meaning of the word.

    In this case there is some other evidence, as I indicated in the argument before, because we have two brothers, the two defendants, one being identified by one person and one being identified by another. They tie themselves together so that the identification of Kevin Scott to a certain extent has to support the correctness of the identification of his brother.

    Secondly, there is the shouted words, 'Scott, leave it', or, 'It's all over', words to that effect, which supports to some extent the identification of the brother and that in turn assists in some way with the correctness of the identification of Nicky.

    Then there is the factor which I am bound to say I had not addressed my mind to until Mr Gatland referred to it, that so far as identifying who out of the three was responsible, at the end of the day two of them are running back towards the club -- that is in the direction of Coronation Road where the two defendants live.

    I have already indicated that in my view the identification is not of the strongest. I consider, however, that there is just sufficient in this case to warrant the matter going before the jury because of the additional factors to which I have referred.

    So far as Ross's identification is concerned, if the jury accept what he said to Mr Gatland in re-examination that he was standing an arm's length away from the person he identified, a person was saying, 'What's all the commotion about?', he was saying, 'It's nothing much, don't worry', the conversation went on in that way, even though he said to the police that he was not looking particularly at the person, if you are talking to someone at that distance, one would have thought that you might well be able to identify him subsequently, so that I am minded to allow this case to go to the jury and they will obviously be given very careful directions about the dangers of convicting on identification evidence such as this."

29. It is now submitted on behalf of the appellant Nicky Eastlake that the first two factors, the identification of the appellant's brother and the shouting of the name "Scott" by one of the attackers, do not have a direct impact on the correctness of the identification of this appellant. The third factor, the route the attackers took away from the scene in the direction of the appellants' home address, it is said, does not in reality amount to support for the identification. There were two directions in which the attackers could have gone; inevitably one would lead in the direction of their home.

30. We have considered these matters. We conclude that this case should not have been withdrawn from the jury. There was evidence on which, properly directed, the jury could convict and it was therefore appropriate for the matter to be left to them to consider.

31. Ground 3 is that the judge failed adequately to deal with the circumstances of the identification. In Turnbull the court identified three main requirements where a case depended wholly or substantially on the correctness of identification:

    (1) The judge should warn the jury of the special need for caution before convicting the defendant in reliance on the correctness of the identification.

    (2) The judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made.

    (3) He should remind the jury of any specific weaknesses which had occurred in the identification evidence.

32. In his summing-up the judge set out for the jury the correct approach to the issue of identification. Having indicated at page 4 that the defence case was alibi and that the two appellants were not present, he said at page 6:

    "Now, ladies and gentleman, this is, of course, an identification case. The case against each defendant depends on the correctness of the identification and in each case it is alleged that that identification is mistaken.

    To avoid the risk of any injustice in this case such as has happened in cases in the past, I must therefore warn you of the special need for caution before convicting the defendant whose case you are considering in reliance on the evidence of identification. A witness who is convinced in his or her own mind may as a result be a convincing witness but may nevertheless be mistaken.

    You should therefore examine carefully the circumstances in which the identifications were made, for instance, how long did Ross or Jessica have the person in question under observation? At what distance? In what light? Did anything interfere with the observation? Has the witness ever seen the person he observed before? So all those are relevant factors that you need to bear in mind in this particular case.

    I have to remind you of apparent weaknesses in respect of each identification. In the case of Ross, first of all, he is a very young lad; he was 13 at the time. In his interview with the police -- and you have just been reminded of it -- he said, 'I didn't get a real look at their faces'. That was the first thing he said. Later he referred to 'mainly getting a look at their clothes. When I looked at their faces', he said, 'I looked down straightaway', as it were to avoid eye contact.

    He did not see the incident itself because he was round the corner with Matthew Hall and so even if he is correct about the identification, Mr Walker says, 'How can you conclude that the one he identified, Nicky Eastlake, was in fact one of the two attackers rather than man number 3 who everyone agrees did not play any part?' So those are some of the weaknesses that you must bear in mind in the case of Ross."

    For the purposes of this appeal we are only concerned with the identification made by Ross Mitchell.

33. During the course of reminding the jury of the evidence that had been given, the judge went on to refer to the evidence of Ross Mitchell. He said:

    "Ross's account, which is obviously the most important account so far as Nicky Eastlake is concerned, is that he was told to go home when they got to Elsdon Avenue by Craig and he was getting fed up with Craig, so he turned round and made his way back to the traffic calming measures, being called the chicane, on Elsdon Avenue.

    There he said he encountered three men coming from the direction of the club, one carrying a pint glass in his hand. One of the men asked him what all the commotion was about and Ross said it was just his brother who was drunk. The man said, 'Do you want sorting out?' and Ross said, 'No', and Ross became nervous about what might be going to happen.

    He said that the man was about an arm's length away while they were talking. The man was wearing a white top and that was the man who he picked out on the identification procedure.

    He thought that he was talking to him for about a minute. Well, a minute to someone is 30 seconds, to another person so .... but it was at this stage that Matthew Hall, sensing trouble as well, took hold of Ross and they went up the cut out of the way of potential trouble, so neither saw anything of the incident."

    The judge went on to refer to the evidence of Matthew Hall in these terms:

    "Matthew Hall, who told us that he ran back to join Ross at the chicane and took Ross up the cut, gave evidence to the effect that he had no recollection of Ross talking to any of the three men coming from the direction of the club and, as you have heard, Mr Walker says, 'Well, that must undermine the account given by Ross'. It is a matter for you."

    We have a note of that apparently unchallenged evidence given by Matthew Hall.

34. Mr Walker, on behalf of Nicky Eastlake, complains that there was no reference to the circumstances of the identification as recounted by Hall and that these amounted to specific weaknesses in the identification and were such that the judge was bound to remind the jury of this, but that he failed to do so. We were today referred not just to the note of the evidence of Matthew Hall, but also the photographs of the scene.

35. We do not agree that this was a weakness which required the judge specifically to recite before the jury. It was a matter of evidence. It is clear that in saying what he did in relation to Matthew Hall, the judge did no more than highlight the point which had been made by Mr Walker very recently in his closing speech. That matter must have been clearly in the minds of the jury at that time. We are satisfied that the evidence of the witnesses was set out correctly in the summing-up within the directions given in accordance with Turnbull. We do not agree that the summing-up was deficient in dealing with the central issue in the case against Nicky Eastlake in relation to the circumstances and the reliability of the identification of the appellant.

36. It was further submitted that, in summarising the prosecution case against Nicky Eastlake, the judge did not differentiate between the two brothers, even though two of the alleged coincidences did not relate to Nicky. In summing the case up to the jury, the judge set out the way in which the prosecution put the case. He said:

    "Ross Mitchell picked out Nicky Eastlake. A similar procedure was then gone through with his brother, Kevin Scott Eastlake's picture, and Jessica picked him out.

    The prosecution invite you to rely on those two identifications because of the otherwise remarkable coincidences which accompany them. First of all, each witness has picked out a different brother, not a random member of the public, a brother.

    Secondly, the two brothers admit that they were indeed together that night on Elsdon Avenue very close to where this incident happened, having been to the club, and the prosecution remind you that the two attackers had come from the direction of the club and one was even carrying a pint glass so he had obviously been into licensed premises.

    Thirdly, the prosecution say the two identifiers each picked out a young man with a propensity for violence and who have indeed a joint conviction for street violence.

    Fourthly, the name of one is indeed Scott, one of those picked out on the identification parade; and, fifthly, they say the defendant, Scott Eastlake, was wearing dark clothes like the larger of the two attackers and, quite clearly, he is larger than his brother, and the overall gist of the witnesses is that of the two attackers there was one who was bigger than the other, so they say those coincidences otherwise cannot really be explained other than by the fact that the witnesses' identification are, in fact, correct.

    The defence say the quality of each identification is so poor for reasons which I shall remind you about shortly that you should acquit."

    We are reminded that there was indeed a height differential between the two appellants. The jury were reminded during the course of the summing-up that after the attack "the one that did not do anything went off towards the shops of Elsdon Avenue and the other two went back towards the social club where they came". That was the evidence of Jessica.

37. We are not persuaded that the summary of the prosecution case was anything other than fair; nor that the conviction of Nicky Eastlake was in any way rendered unsafe as a result of that passage.

38. Having considered separately the three grounds of appeal argued before this court, we are satisfied that the convictions of each of the two appellants are safe. Accordingly the appeals are dismissed.

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