England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/08/2008

Lord Justice Latham :

1. This is an appeal by the appellant against his conviction in 1970, following a reference of it to this court by the Criminal Cases Review Commission on the 4^th September 2007 under s.9 of the Criminal Appeal Act 1995. The case has a remarkable history. The appellant was convicted of robbery on the 17^th July 1970 at Leeds Assizes before the late Mr Justice Hinchcliffe and a jury and sentenced to 10 years imprisonment. The trial was conducted by highly experienced leading and junior counsel on both sides. He appealed to the Court of Appeal Criminal Division, which dismissed his appeal against both conviction and sentence on the 19^th February 1971.
2. He has since then maintained his innocence, and explored every avenue to overturn the conviction. After his original appeal he unsuccessfully applied to the European Court of Human Rights. In circumstances to which we will return, an internal police investigation was carried out in 1979 and 1980 by Superintendent Brayson of West Yorkshire Metropolitan Police. Although in April 1981, the then Home Secretary concluded that no further action should be taken in relation to the appellant's conviction, his successor as Home Secretary referred the case to this court on the 24^th November 1993 under s.17 (1) (a) of the Criminal Appeal Act 1968, based upon fresh evidence, which was in fact the material available to the Home Secretary in April 1981. This court dismissed the consequent appeal on the 15^th July 1996. The appellant persisted,and persuaded the CCRC to consider his case, as a result of which the CCRC referred the matter to this court on the 24^th July 2003. This court dismissed the consequent appeal on 26^th August 2004.
3. The facts were set out in the judgment of the court given by Judge LJ in 1996, and were repeated in the judgment of the court given by May LJ in 2004. But it is obviously necessary for us to set them out again in this judgment in order to put the arguments before us into their context.
4. The robbery was of the day's cash takings of the Tesco store in the Merrion Centre in Leeds.
5. At about 6.45pm on the night in question, the 24^th January 1970, Mr Gregory, the store manager was taking the money to the night safe of the nearby Midland Bank, accompanied by another member of staff, Mr Pawson. It was a wet evening and the area was not well lit. They were attacked from behind and struck on the head with iron bars. Mr Gregory was forced to release the bags which contained just over four thousand pounds in cash by blows to his hand which fractured his fingers. Neither Mr Gregory nor Mr Pawson were able to identify any of the attackers, save to say that four men were involved.
6. The only witness to the robbery who was able to give any description of any of the men was the Tesco warehouse manager, Mr Stewart Wilson. He had in fact left the store with Mr Gregory but had stopped to buy a newspaper. He heard a scream, and ran to the scene. The man hitting Mr Gregory swung round in Mr Wilson's direction; but Mr Wilson managed to avoid the iron bar. In his summing-up, the judge related Mr Wilson's evidence as follows;

"The man looked at me. He hit the ground with the bar and said, "if you want a go, come on". We looked at each other for seconds, his mates then shouted to the man to come on, and he ran off to the car".

7. Mr Wilson saw the men then run off to a car, and then had the presence of mind to write down its registration number on a match box, which proved to be correct. That evening he made a statement to the police giving a description of the man who had confronted him as being 30-35 years old, five foot seven to five foot eight tall, with light brown hair, and a complexion that he described as "dirty" which he later said was a description based upon the fact that he was unshaven. On the Sunday 25^th January 1970, he helped the police to compile an identikit picture of the person whom he had confronted. Its accuracy was variously described; perhaps it was best summed up by the appellant's own counsel at the appeal in 1971 as being "very close".
8. The identikit was published in the newspapers on Monday the 29^th January 1970. This produced two significant responses. First, a Detective Superintendent Dibb of the Bradford City Police considered that it matched the features of the appellant whom he had arrested and charged with a robbery in Bradford in 1968, but who had subsequently been acquitted. He accordingly informed the officers investigating the Tesco robbery; and as a result they were able to obtain a photograph or photographs of the appellant from the police in his home area of Stockton-on-Tees.
9. Second, three Tesco employees came forward and said that they had seen someone similar in Tesco on the Thursday before the robbery, and on the morning of the robbery itself. They were Andrew Sloboda who described seeing the man on the afternoon of Thursday 22^nd January 1970, Linda Lumsden who also described seeing a man resembling the identikit that same afternoon, and Janet Farnsworth who saw him both on the Thursday afternoon, like the others, but also on the morning of the 24^th January 1970. All of them described him as smelling, either of paint or fertiliser. They were all at some stage shown a number of photographs, including the photograph of the appellant; and all picked out the appellant as the person they had seen on those two days in question.
10. As a result of the information from Detective Superintendent Dibb, the appellant was seen by Detective Constable Doyle on the 27^th January 1970 and asked where he had been at the time of the robbery. He said that he had returned with his wife from shopping at about 2pm and was then at home with her until 9.15pm watching the television. He said that no one but his wife could verify this. According to the officer, he did not say that it was his birthday or that he had had a children's party, which was to be his account at a later stage. The appellant was seen again on the 28^th January 1970 and asked to attend an identification parade. He refused. On the 2^nd February 1970, Detective Sergeant Mather and Detective Sergeant Newton went to the appellant's house, where they showed him the identikit. According to them he agreed that it was "a ringer for me". The appellant has always denied that he used that phrase. He denied any involvement; he repeated his alibi with some slight change in the times, and added that it had been his birthday. He once again refused to attend an identification parade.
11. As a result, Detective Sergeant Mather, together with Detective Sergeant Newton took Mr Wilson to the appellant's house on the 5^th February 1970. Mr Wilson made it clear in his evidence that all he was told was that he was being taken to see if he could eliminate someone from the police enquiries. It was the intention of Detective Sergeant Mather and Detective Sergeant Newton to confront Mr Wilson with the appellant.
12. Detective Sergeant Mather and Detective Sergeant Newton got out of the car and went to the door of the appellant's house, which was opened by the appellant's wife. Mr Wilson heard some discussion about an identification parade; and then saw the appellant come to the door. Mr Wilson then described how "just for a second his expression automatically changed and he got mad and he looked exactly the same as he was doing when he was taking a swing at me." In his evidence at court, and in all subsequent statements, Mr Wilson added, although it was not in his original statement, that the appellant shouted "get him away from here; he'll identify me." It appeared to Mr Wilson that the appellant had recognised him. Detective Sergeant Mather and Detective Sergeant Newton gave similar evidence, although they recollected that when the appellant caught sight of Mr Wilson, he shouted "get that man out of here, he knows me".
13. The appellant was then arrested, and taken to the police station by the two police officers in the same car as Mr Wilson. In the police car, he said to Mr Wilson "come on mister, have another look at me, it's your word against mine."
14. After his arrest, the appellant was interviewed and denied that he had been involved in the robbery. However, he was also recorded by Detective Sergeant Newton as having said "you have no chance" when asked if there was any possibility of recovering the stolen £4,000. When asked if he would care to say who were the other persons involved, he said "all you have got to do is look round Leeds. They are local men. That's all I have got to say."
15. There was one further conversation upon which the prosecution relied at the trial, which was between Detective Sergeant Mather and the appellant alone, which occurred when the officer took a cup of tea to the appellant and asked him whether he had anything further to say. According to the officer, the appellant said "no, not really. I'll have to face the music by the look of it." And when it was suggested to him that it would be to his advantage if he disclosed where the money was, he replied "you must be joking. I told you and your mate you have no chance. Anyway, the wife will get my share if the worst happens." The appellant denied having made the remarks recorded in the interview, and vehemently denied making the remarks alleged by Detective Sergeant Mather.
16. As far as the identification of the appellant is concerned, the prosecution at trial also relied upon the fact that when the appellant was first taken to court, Mr Wilson, Mr Sloboda, Miss Lumsden and Miss Farnsworth were in court, and all identified the appellant as the person whom they had described, although Mr Sloboda was not as certain as the others. The appellant gave evidence which was generally consistent with what he had said to the police. He said it was his birthday. He went shopping with his wife and youngest daughter and they returned home about 12pm. They then remained at home, throughout the remainder of the afternoon until about 9pm. They had watched television and there had been a birthday tea party for the family. Thereafter he had gone out to a public house. His wife and his daughter gave supporting evidence.
17. The appeal in 1971 was based upon what was said to be new evidence relating to the appellant's movements in Stockton-on-Tees on the 24^th January 1970. There was evidence from a Mr and Mrs Rees that they had seen the appellant in Stockton-on-Tees shortly before 1pm and again at about 9pm that day. There was a further statement from Mr Hay who says that he saw the appellant in Stockton-on-Tees somewhere between 8.45 and 9pm that day. The court dismissed the appeal on the basis that this evidence was available to the appellant at the time of trial, and in any event did not undermine the prosecution's case that he was in Leeds at 6.45pm.
18. The inquiry carried out by Superintendent Brayson was instituted after Michael Samuel Benefield, who was under investigation for a number of robberies of a similar nature to the one of which the appellant was convicted, made a statement on the 7^th November 1978 admitting that he had been party to the Leeds robbery and stating that the appellant had played no part in it. This statement was one of a number in which he admitted responsibility for a significant number of robberies; he gave evidence at the trials of others who were charged with those same robberies. He had become what was described as a super grass.
19. The inquiry was, in form, an enquiry into the appellant's allegations that he had been wrongfully convicted, inter alia, by a conspiracy between Detective Superintendent Newton, and Detective Sergeant Mather to pervert the course of justice. By the time of the enquiry, Detective Sergeant Mather had resigned from the police service, on the 14^th December 1975. He had had a somewhat chequered career. In May 1972, together with another officer, he was charged with bribery and corruption, but acquitted. Disciplinary proceedings arising out of the matters which were the subject matter at the trial were also dismissed, although he had made certain admissions during the trial. His resignation came after 90 disciplinary charges were laid against him arising out of his relationship with a solicitor.
20. Superintendent Brayson interviewed a substantial number of the witnesses involved in the appellant's original trial including Mr Wilson and the three other Tesco employees, and the police officers. He interviewed Mr Benefield and others in relation to Mr Benefield's confessions that he had been involved in the Leeds robbery. His conclusions were:

"362. It is thought that this investigation has not revealed any evidence on which a criminal charge could be substantiated against the police officers involved.

363. Benefield's "admission" must inevitably cast some doubt on the conviction. This doubt does not, however, carry sufficient weight so that a miscarriage of justice has occurred.

364. Today's evidence in relation to the identical points proving this offence, i.e. identification and uncorroborated verbal replies, is perhaps the most contentious of any other type of evidence.

365. It is therefore a matter of conjecture whether or not a present day jury would have convicted on the evidence presented in 1970.

366. It could be said that owing to the lapse of time and other events which followed the trial, and the dangers of the involvement of the "super grass" syndrome, that in the final analysis the truth is unobtainable."

21. This enquiry revealed a number of matters which have become of considerable importance. During the trial the jury were told that the car in which the robbers had fled the scene had been found abandoned in a particular area of Leeds. They were also told that a holdall containing, in particular, the money bags and the weapons used in the robbery had been found by the roadside near Wetherby, which the jury was told would be consistent with the route which would have been taken by the appellant if he was travelling from Leeds to Stockton-on-Tees. Superintendent Brayson's investigations disclosed that a second car of a similar type was stolen the morning after the robbery and was eventually found abandoned near York station.
22. Mr Wilson was re-interviewed twice, once on the 10^th May 1979, and again on the 13^th June 1980. In the first statement, in addition to confirming the evidence that he gave, in particular what he remembered the appellant saying at the confrontation on the 5^th February 1970, he mentioned for the first time being shown photographs. He first saw "several" photographs on the evening of the robbery, but did not recognise any of them as being similar to the person he had seen at the robbery. He then went on:

"One of the Detective Sergeants who was in the case, the smaller one of the two" (this must have been Detective Sergeant Mather) "I did not see the other one until I went in the car to Stockton, he showed me another five photographs. I picked one out saying he was similar but I did not think he had been involved."

23. In the second statement he said:

"I have been asked what photographs I have been shown. Immediately after the robbery I was shown numerous photographs in albums at the police headquarters, obviously in an attempt to pick out my attackers. I never picked out any photographs. I have never been shown a photograph of Stock by police within my knowledge. I do recall pointing a photo out to the police which I clearly said was not the man who was similar."

24. Of the three Tesco employees, only two were available to be re-interviewed, Mr Sloboda having left the country. Janet Farnsworth, now Lotherington, made a statement on the 8^th May 1979, inter alia, about the photographs that she had been shown. She said:

"Some time later I was shown some photographs in large books at the police station, I think it was Millgarth but I recognised one as being that of a man I had seen in the supermarket some days earlier."

25. Linda Lumsden, now Paton, made a statement on the 14^th May 1979. She said:

"I recall that I went to a police station near The International Swimming Pool in Leeds (Brotherton House) where I examined several albums of photographs. I can remember identifying one as that of a man I had seen in the store. I remember another girl called Janet was looking at photographs at the same time, in the same room, but we were looking at different albums.

…

When I recognised the photograph I told the policeman who was making the enquiries and he handed the album to Janet, who looked through them and picked out the same photograph. When we first went in the room to examine the photographs, Janet and I were sitting on the same table and if I remember correctly we were left on our own by the police for most of the time. I selected the photograph on my own, without any help from the police or Janet. When Janet looked at the album containing the photograph I identified she picked the same one out herself. But I did not help her nor did any policeman."

26. When the matter was referred to the Court of Appeal in 1993, the grounds of appeal were, firstly, that the identification by Mr Wilson ought not to have been admitted in evidence, inter alia because he had been shown photographs which may have included one of the appellant, that it was a fleeting glimpse case, the doorstep identification was unreliable, and the trial judge failed to direct the jury as to the dangers of identification in any way whatsoever. Secondly, it was said that the identification of the appellant by the three Tesco witnesses was unreliable and should not have been admitted, again in part because they were shown photographs, the dock identification was effectively a "group identification" and again the trial judge failed to direct the jury as to the dangers of identification. Thirdly, the evidence of Detective Sergeant Mather was tainted by his subsequent behaviour. Fourthly, the fresh evidence from Mr Benefield was credible and cast real doubt on the conviction.
27. The judgment of the court was given by Judge LJ. As to the court's approach he said:

"To the extent that the present appeal involved analysis and argument about the way in which the investigation and subsequent trial were handled we think it wrong to countenance any criticism based on hindsight or subsequent development in practice or procedure, and where questions were raised and disposed of many years earlier by the Court of Appeal, the greater the lapse of time the less likely this court would be to set aside the decisions on those points. Ultimately however our responsibility is to decide whether in the light of our judgment and analysis of all the relevant circumstances this conviction is unsafe."

28. Before then proceeding to consider the evidence of Mr Wilson, it concluded that it was unlikely that Mr Wilson would have been shown a photograph of the appellant before the identikit was produced. It concluded that there was nothing improper about the confrontation, and concluded that his evidence was compelling evidence. It was supported, at least to some extent, by the fact that the three Tesco witnesses had each picked out the appellant's photograph on the occasion that they were shown albums of photographs, which the court considered would have been on the 2^nd February 1970. It concluded that there was nothing improper about asking the witnesses to look at the photographs, although the fact that they saw them when they were together was an obvious weakness. Nonetheless, as the court put it:

"If Mr Wilson's identification is correct, it remains an unusual coincidence that each of the three witnesses on looking at bundles of photographs should each have picked out the appellant as the man each had seen on separate occasions at Tesco on the Thursday. "

29. The court did, however, accept that it was inappropriate to allow evidence of the dock identification to go before the jury and accordingly expressly excluded it from their consideration. Further, it accepted that the material relating to Detective Sergeant Mather was such that the court should ignore any evidence of his which was not supported by another officer. Accordingly it excluded from its consideration the remark said to have been made by the appellant when Detective Sergeant Mather was taking him the cup of tea.
30. The crucial aspect of the appeal was the evidence of Mr Benefield. He gave evidence in accordance with the statements that he had originally made in 1978, and later. He said there were five altogether in the gang, Mr Knight, Mr Khan, Mr Bobrow, Mr Simms, and Mr Benefield himself. He said that Mr Simms was the driver, the others attacked the staff, and his, Mr Benefield's role was to collect the cash. The only one of those who could possibly have been mistaken for the appellant was, it would appear, Mr Khan. He described how the evening was wet. He described a cinema in the precinct, which he thought was curious. He later said that the film that was being shown was "War and Peace" and ultimately said that he had in fact watched the film although it was in Russian.
31. The court accepted that Mr Benefield clearly had knowledge of details of the robbery which could only have been given by someone who was either there or who had been given a detailed account of the robbery. The court did not accept that his evidence was credible. His account of how he came to hear about the appellant's conviction for the robbery was, it was said, incredible. The way the story in relation to the film developed suggested that he was making it up incrementally. His memory of the details of this offence contrasted startlingly with his inability to remember details of other robberies. He and Mr Knight had returned to London either directly or to a town 30-40 miles away where they got a train. They dumped the suitcase on the way. The court considered that that was highly unlikely as an explanation as to how the items from the robbery were found near Wetherby, as that was not a route anyone would sensibly take from Leeds to York. Of considerable significance, also, was the fact that it was difficult for the court to see how Mr Wilson could have mistaken the appellant for Mr Khan whom Mr Benefield accepted looked nothing like the identikit. The appeal was accordingly dismissed.
32. In 1998 the appellant applied for his case to be considered by the CCRC. He had visited Mr Bobrow and Mr Khan who, he said, had admitted to him their involvement in the robbery and Mr Bobrow confirmed the account given by Mr Benefield. However, despite offers of immunity from prosecution, neither Mr Bobrow nor Mr Khan was prepared to talk to the CCRC. Despite the fact that there was therefore no new evidence or new material, the CCRC was prepared to consider the appellant's application and undertook what the Court of Appeal in 2004 described as an enormously detailed re-examination of existing material. The court expressed its concern about the value of such an exercise 30 years or more after the original trial. Nonetheless, after having considered that material in detail, the CCRC concluded that there had been significant failures by the police in relation to the identification procedures adopted both in respect of Mr Wilson, and the three Tesco witnesses, and a failure by the prosecution to disclose relevant material to the defence which could have enabled the defence to undermine the identification evidence. Further, it was discovered that Mr Wilson who was believed at the time of trial to have no previous convictions in fact had been convicted in February 1970 of driving offences, including driving whilst over the prescribed limit of alcohol. Subsequent to the trial he was convicted of dishonestly receiving stolen property. But that perhaps should be put in context since he was only fined £10.00. Nonetheless, the CCRC considered that both the defence at trial and the Court of Appeal in 1996 had been misled as to Mr Wilson's antecedents.
33. It concluded that the evidence of Detective Sergeant Mather and Detective Sergeant Newton was tainted. The report by Superintendent Brayson was considered to have been inadequately carried out, particularly in relation to the question of what photographs were shown to whom in the period following the robbery and before the dock identification on the 8^th February 1970. It noted that the defence at trial had not been made aware of evidence relating to the Ford motor car that was stolen in Leeds and found at York. It also concluded that there was, contrary to the conclusions of the Court of Appeal in 1996, clear evidence to support Mr Benefield's account, particularly his account of having travelled from Leeds to "a nearby" railway station in that contrary to the assumption of the Court of Appeal in 1996, the journey could well have been along a route which would have passed the site at Wetherby where the suitcase was found. It concluded that there was evidence which made it difficult to see how the appellant could have got to Stockton-on Tees in time to be at home by 8.45, which was when he was seen by a witness. It concluded, having made further enquiries, that his account of having seen War and Peace was credible. Its conclusion was:

"For the reasons outlined above, the most important being the unfairness caused to the trial process arising from the police failure to follow the correct procedures relating to identification, including the showing of photographs to witnesses and that arising from a failure to disclose relevant witness statements, the Commission has decided to refer this case to the Court of Appeal."

34. The Court of Appeal encapsulated the arguments in paragraph 22 of the judgment:

"The main thrust of Mr Mansfield's submissions on this appeal is that police procedures relating to identification and the showing of photographs to potential identifying witnesses were inadequate; that relevant evidence about the showing of photographs was withheld from the defence; and critically that Mr Wilson was, or probably was, shown a photograph of the appellant at some stage before he made his identification on 5^th February 1970."

35. The Court of Appeal considered and rejected the argument that there had been any failure to disclose evidence relating to the showing of photographs to the Tesco witnesses. It rejected submissions based upon apparent discrepancies between the statements of the various witnesses including Detective Sergeant Mather and Detective Sergeant Newton.
36. As far as the critical issue was concerned, namely the question of whether Mr Wilson was shown a photograph of the appellant before the confrontation on the 5^th February 1970 is concerned, the Court of Appeal said:

"34…it looks as if the sequence is as follows. At the time of the robbery, the Leeds police did not have a photograph of the appellant. This court in 1996 accepted evidence from Mr Robinson to this effect. On the evening of the robbery, Mr Wilson was shown photographs (which did not include the appellant) from which he did not identify the appellant. He helped prepare an identikit. On the following day he was shown five further photographs. The identikit was published…Leeds police then acquired a photograph of the appellant…It is likely that the photograph was in the possession of the Leeds police by 28^th January."

37. The court then set out a passage from the cross-examination of Mr Wilson at the trial in which he was asked whether he had been shown a photograph of the appellant; perhaps the most important question and answer is this:

"Q. Is this your answer this (sic), to be fair, you had been shown some photographs but you do not recollect having seen a photograph of this man – is that a fair way to put it?

A. Yes that's right."

38. The court rejected a suggestion that Mr Wilson had been evasive in the answers that he gave up to that point. It then went on to consider the statement given by Mr Wilson in May 1979 in which he had said that he had been shown five photographs by Detective Sergeants Mather and had picked one out saying that he was similar but did not think he had been involved. It recorded that Mr Mansfield had submitted that this must have meant that Mr Wilson was shown the five photographs after the week-end, because Detective Sergeant Mather was not on duty at that time. The court rejected that submission. It concluded that the passage in context did not suggest that he was shown photographs on a different occasion from the making of the identikit. But above all it concluded that the statements in no way undermined Mr Wilson's assertion at trial that he had not been shown a photograph of the appellant.
39. Dealing with the evidence of Mr Benefield, the court accepted that the evidence before it suggested that Wetherby was on a perfectly sensible route from Leeds to York, at least on the configuration of roads in 1996. However, although the evidence before the court suggested that certainly at that time there was a perfectly sensible route from Leeds to York which would pass Wetherby, that was not sufficient to undermine the findings of the court in 1996, which had an opportunity to see and hear Mr Benefield. Above all, it concluded that the crucial evidence was that of Mr Wilson, whose credibility had not been undermined in any way by any of the new material.
40. We come then to the reference with which we are now concerned. The grounds are set out in paragraph 87 of the reference in the following terms:

"That there is new evidence and new argument to show that the original police investigation was poorly and unfairly conducted, particularly in relation to the identification procedures, and that certain information relevant to the defence was not disclosed;

That the tainted evidence of the three Tesco witnesses would have undermined the credibility of Mr Stock and Mrs Stock;

That there were failures in the summing-up on the identification evidence which is the central issue of the prosecution case;

That there were failures in the summing-up on the alibi evidence, which is the central issue of the defence case;

That there were significant misunderstandings of the 2004 appeal about the crucial submission that there had been an undisclosed showing of photographs, almost certainly including one of Mr Stock, to Mr Wilson before the confrontation; and

That there was new evidence and new argument that suggests that the evidence of Mr Benefield should be given more weight."

41. How should we approach our task in view of the fact that this is now the fourth time that this matter has come before this court? We consider that the judgment of the Court of Appeal in 2004 provides a clear answer, and we can do no better than repeat it here:

"18. For the purpose of the present appeal, we were referred to R v Thomas [2002] EWCA Crim 941 (26^th April 2001). This was a third appeal upon a reference by the Commission. Auld LJ giving the judgment of the court said, at paragraph 72, that the court's jurisdiction and a duty on a reference, as in an ordinary appeal, is to consider the safety of the conviction. Section 9(2) of the 1995 Act provides that a conviction reference shall be treated "for all purposes" as an appeal under section 1 of the 1968 Act. Section 13(1) of the 1995 Act empowers the Commission to make a reference if it considers that there is a real possibility that the court would not uphold a conviction in the event of a reference because of a new argument or evidence. Section 13(2) empowers it "in exceptional circumstances" to make such a reference even where there is no new argument or evidence and, by necessary implication, acknowledges or extends the power of the court in exceptional circumstances to depart from its previous decision where there is no new argument or evidence. Auld LJ then said at paragraph 73:

"The court, in the exercise of its overriding power and duty to consider the safety of the verdict, is not bound under the reference procedure by the rule in R v Pinfold (1988) 87 Cr App R 15, CA, that it cannot re-open its previous determinations on the merits. If and to the extent that issue estoppel may be a feature of the criminal law… the reference procedure is capable in appropriate circumstances of overcoming it. However, in the absence of new argument or evidence, the proper exercise of the Court's power to depart from its previous reasoning or conclusion should, we believe, equally be confined to "exceptional circumstances"; see e.g. R v Chard (1984) 78 Cr App R 106 per Lord Diplock at 113 under the procedure of reference by the Home Secretary:

"… The court that hears the reference will give weight to the previous judgment, from which it will be very slow to differ, unless it is persuaded that some cogent argument that had not been advanced at the previous hearing would, if it had been properly developed at such a hearing, have resulted in the appeal against conviction being allowed.""

"19.We were also referred to a later decision of this court, also presided over by Auld LJ, in R v Poole and Mills [2003] EWCA Crim 1753 (17^th June 2003). This again was an appeal against conviction following a reference by the Commission upon a re-application to them after judicial review proceedings of a previous decision not to refer. A first appeal against conviction may have been dismissed by this court and the House of Lords. Auld LJ considered the task of the court with reference to Thomas (among other cases). He concluded at paragraph 62 that the task of the court included determining whether there is some new argument or evidence not previously before, or properly developed before the court. The court has itself to be sure of the safety of the conviction, bearing very clearly in mind that the question for consideration is whether the conviction is safe, not whether the accused is guilty see R v Pendleton [2001] UKHL 66 at paragraph 19."

42. The CCRC reference is summarised in the grounds of appeal in the following terms:

"(1) There are substantial grounds to regard the identification evidence of Stewart Wilson as contaminated by his being shown photographs and by his subsequent failure to disclose those events at trial.

(2) There are substantial grounds to regard the identification evidence of "the three witnesses" as contaminated for the same reasons.

(3) There were significant failings in the summing up in relation to the identification evidence, the alibi evidence and the evidence of the detectives in the case, whether judged by today's standards or those of the times.

(4) There is evidence to suggest that Mr Benefield's evidence exonerating the Appellant was true.

(5) The role of D.S. Mather, later proven to be a dishonest officer, was such as to render the conviction unsafe."

43. As to the first ground, Mr Bennathan QC on behalf of the appellant accepts that this was the central issue before the court in 2004, when the appellant's arguments were rejected. He submits, however, that the CCRC reference makes it plain that the Court fundamentally misunderstood the argument, and came to a conclusion that was quite clearly wrong on the material before it or at least wrong now that the material has been more fully deployed and argued.
44. The basis for this submission is the conclusion of the CCRC that the five photographs which are mentioned by Mr Wilson in his 1979 statement included one of the appellant, and was shown to Mr Wilson by Detective Sergeant Mather. As Detective Sergeant Mather was not on duty over the weekend of the robbery, they were clearly shown to him after he had helped compile the identikit, and probably on the 28^th January 1970. This is information which was not disclosed to the defence at trial, and does not appear to have been recorded, contrary to proper practice. Detective Sergeant Mather himself refers to showing some photos. It follows that the identification by Mr Wilson on the 5^th February 1970 was potentially contaminated.
45. We agree with the submission up to a point. If Mr Wilson was correct in his recollection in the 1979 statement that he was shown five photographs by the smaller of the detective sergeants that is likely to be a reference to Detective Sergeant Mather. As Detective Sergeant Mather was not on duty over the weekend, Mr Wilson's account must mean that he was shown the five photographs on some occasion other than the occasion that he was shown the albums and helped compile the identikit, which was on Sunday 25^th January 1970. It follows that the conclusion of the Court of Appeal in 2004 that he was shown the photographs on the same occasion, is difficult to justify. If he was right that it was Detective Sergeant Mather who showed them to him it must have been later in the week. Other evidence suggests that Detective Sergeant Mather did see Mr Wilson on the 28^th January 1970; and indeed the Detective Sergeant accepts that he showed some photographs to Mr Wilson at that time. It may be that those photographs did include a photograph of the appellant. That would be consistent with Mr Wilson's statement that he considered that one of the photographs was of a man similar to the appellant. There is no doubt that if he had indeed been shown a photograph of the appellant, Detective Sergeant Mather should certainly have made a note of the matter and the fact that he had been shown photographs; and should in any event have been disclosed to the defence, whether or not the appellant's photograph was amongst those that were shown to him that day.
46. It seems to us, however, that there are two difficulties for the appellant. The first is that the point he seeks to make is dependent upon an evaluation, 28 years after the statements in 1979 and 1980 were made, of statements which themselves were made 9 and 10 years after the events in question. That in itself would make it difficult for us to conclude that the evidence was sufficiently clear as to justify the conclusion that it can be a secure basis for interfering and doubting the safety of the verdict. But perhaps more important, even if we accept that the appellant's photograph was amongst the photographs shown to Mr Wilson, at whatever time, before the confrontation on the 5^th September 1970, it is clear, first, that it was not available before he helped with the identikit, which was agreed to represent a likeness which was "very close" to the appellant, and the circumstances of the confrontation as described by Mr Wilson was so dramatic that they must have been critical to the conclusion of the jury. If it be the case that there was a photograph of the appellant which Mr Wilson did not immediately recognise as his attacker, that seems to us to be capable of strengthening the reliability of his ultimate identification, in that he was not prepared to identify him from a photograph, which can often be an unrepresentative likeness, but was able to identify him when he saw him in person. We accordingly do not think that any of the arguments that have been put before us in relation to the photographs undermine the safety of the conviction.
47. As to the second ground of appeal, it should be remembered that the court in 1996 discounted the dock identification. So, implicitly, did the court in 2004. We approach this appeal on the same basis. But Mr Bennathan QC has developed further arguments in relation to the three Tesco witnesses with which we should deal. He submits that we should not simply ignore the identification evidence but should look at the material now available and conclude that there is, at least a real possibility that, had the defence been provided with all the evidence which is now before us, it may have been able to deploy an argument to the effect that the witnesses may never have identified the appellant at all, other than at the dock identification, in that they were not shown photographs of the appellant and accordingly must have picked out someone other than the appellant. This argument is based on the fact that reference was made to them being shown albums, and there was some evidence that might suggest that they were shown albums on a Monday which, it is said, could have been Monday 26^th January 1970. The argument is that any reference to albums must be the albums that were seen by Mr Wilson on the 25^th January 1970, which clearly did not include any photograph of the appellant.
48. Once again we consider that this argument is based upon an unrealistic retrospective analysis many years after the events. It seems to us improbable in the extreme that three witnesses would have been put in a position on the 8^th February 1970 to identify the appellant at court if they had not positively identified him from photographs at some earlier stage. In their statements they all positively aver that they recognised the same photograph, which was the photograph of the person they saw in court. There is no reason to believe that there was any material available which the defence could have used to cast doubt on that part of their evidence.
49. The third ground of appeal raises issues which could have been, but were not developed in earlier appeals. Nonetheless, it is right that we consider the extent to which they affect the safety of the conviction, and we do so in the light of the judgment of this court in R v Bentley (deceased) [2001] 1 Cr App R 307. The first complaint about the summing up is that it did not contain, in one sense for obvious reasons, the warnings to the jury in identification cases which this court held in R v Turnbull [1977] QB 224 should be given in order to guard against mistaken identification. The fact is that the judge merely directed the jury that they had to determine whether Mr Wilson was a responsible and reliable person upon whose evidence they could rely and ask whether he could really be mistaken. There is no doubt that that would be considered inadequate today. That does not mean that the conviction must be unsafe. In this court,in the judgment in 1996, it was pointed out that this could not properly be described as a fleeting glance case. The appellant was in full view face to face with Mr Wilson, albeit for a short time, but in circumstances which clearly imprinted themselves on the memory of Mr Wilson. The most important feature of his recognition of the appellant on the 5^th February 1970 was his facial features when clearly in stress and anger. There cannot have been a clearer opportunity for a proper identification than that.
50. As far as the alibi evidence was concerned, this was considered by this court in its 1996 judgment. There are two aspects. First, in directing the jury as to their approach to the alibi evidence, the judge, having said that the defence was that he was in Stockton-on Tees at the time and not in Leeds, said as follows:

"Well, of course, members of the jury, if this is right, it is the perfect defence, and your verdict will be one of not guilty. If it might be right, or if it causes you to entertain any doubt about the case for the prosecution, then your verdict will be one of not guilty. But, watch it, members of the jury; you should always scrutinise an alibi for the defence very carefully. This is a "family" alibi. Is the wife, do you think, making an honest mistake? Is she trying to help her husband? Is she, do you think, attributing to this Saturday something which happened upon another Saturday? Has she got the date wrong? Members of the jury, alibis are sometimes truthful, sometimes they are honest but inaccurate, and sometimes they are deliberately untruthful. In which category do you think this alibi falls?"

51. And then, later on, when dealing with the evidence of Mrs Stock, who had apparently broken down in the witness box, he said:

"Then you had the evidence of Mrs Brenda Stock the wife of the accused man. You have to judge whether you felt you can rely upon her evidence or whether it was a bit too pat – perhaps put on a bit of an act. It is for you to say."

52. It is submitted that in those passages the judge was effectively undermining the defence case. The comments, "but watch it" and "putting on a bit of an act" were unfair and calculated to diminish the impact of the alibi evidence. There is no doubt that these were the sort of robust comments which were more frequent at the time of this trial than they are today. But we do not consider that they are unfair in the sense of undermining the safety of this conviction. The first was a colloquial way of headlining a matter of common sense. The latter may well have been a perfectly apposite comment in the circumstances.
53. The third matter arising out of the summing-up was comment made about Detective Sergeant Mather. The judge said this:

"… You must make up your minds about him, members of the jury. You may think that he is a splendid type of police officer – I do not know, it is a matter for you."

54. Once again that is not the sort of comment one would expect in a summing-up today. And, in the circumstances, it is particularly unfortunate bearing in mind what we now know about the subsequent career of Detective Sergeant Mather. We propose to take the same course as the court did in 1996, and discount the evidence of Detective Sergeant Mather. That still leaves the question of whether or not this comment is one which raises any question in our minds as to safety of the verdict. There is no doubt that the evidence he gave as to what the appellant apparently said to him in the cell was capable of being damning evidence. But was it in any sense critical? In our view it was not. The critical question in this case was whether or not the identification by Mr Wilson was reliable. We have already given our answer to that.
55. The fourth ground of appeal essentially seeks to reinforce the arguments which were deployed in support of Mr Benefield's evidence both in the 1996 and the 2004 appeals. In addition, we have been asked to receive in evidence a statement from the appellant's solicitor Mr Maddocks which sets out a number of conversations that he had with Mr Bobrow. We were not prepared to admit that evidence. There is no doubt that Mr Benefield has been able to give an account of what he says was his involvement in the Leeds robbery which can only have come from knowledge that he acquired either from being there, or from somebody who was there. The telling details to that effect are, for example, the fact that he mentions the presence of a large number of half crowns amongst the takings. Most if not all of these details have been considered by this court in both 1996 and 2004. It does not seem to us that there is anything in the new information which tells us any more about the credibility of his assertion that the appellant was not there. The fundamental difficulty about accepting that the appellant was not there is the fact that the identikit simply does not match any of those whom Mr Benefield says took part in the crime. The nearest is Mr Khan. The most obvious characteristic of Khan is that he is coloured. Even though Mr Wilson described the person whom he confronted at the scene as dark, that is not the same as coloured.
56. Mr Wilson would undoubtedly have described him in different terms if indeed it was Mr Khan. Perhaps more important, Mr Benefield had to accept that the identikit looked nothing like Mr Khan.
57. Finally, the appellant seeks to rely on the facts that emerged as to Detective Sergeant Mather's character after the trial. This was known to the court in 1996 and in 2004, and no new arguments, in our judgment, have been produced which could justify the conclusion that the decisions on those two occasions were wrong. As we have said, the only real question is whether or not we consider that the identification evidence of Mr Wilson has been in any way undermined. For the reasons that we have given, we do not think it has. It has, as we have indicated, been discovered that he was not a man of good character in the strict sense at the time of the trial, and has had a conviction since the trial. But we cannot believe that a conviction for driving when over the limit or indeed a conviction in relation to handling for which he was fined £10 could properly justify the conclusion that in any way his credibility could be said to be undermined. We are surprised that that suggestion was ever made. We accordingly dismiss this appeal. We do so recognising the tenacity with which this appellant has fought to overturn this conviction. It may be suggested in some way that this of itself should cause us to doubt the safety of the conviction. He has certainly persuaded the CCRC to expend considerable time and resources in seeking to support his case. Whether or not the truth may be that he has been angered by the evidence of Detective Sergeant Mather we will probably never know. For the reasons we have given, we cannot say that this verdict was unsafe.