England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Wednesday, 8th October 2008

LORD JUSTICE DYSON: On 16th January 2008 the appellant was convicted of dangerous driving (count 1), driving whilst disqualified (count 2) and breaching an anti-social behaviour order (count 3). He appeals against conviction with the leave of the Full Court.

1. All three convictions arise out of the same driving incident that occurred on 27th July 2007. At about 20.35 hours on that day Police Constable Smith, who was driving an unmarked police vehicle, became aware of a turquoise Rover Metro registration number R424DOK which was being driven at excessive speed in Coseley, West Midlands. He noted that there were two persons in the car, a male driver and a female passenger. Police Constable Smith followed the Metro and attempted to stop it by illuminating the blue lights on his vehicle. The Metro pulled over briefly and then sped away. He followed the car in pursuit towards the town of Dudley. Other police units were alerted. At a junction a police car occupied by Police Constable Andrews and Police Constable Loosemore was forced to swerve to avoid a collision with the Metro. Police Constable Loosemore said that he immediately recognised the driver and was later able to confirm his name as that of the appellant.
2. The Metro was travelling at a speed in excess of 70 miles per hour, possibly as much as 77 miles per hour and the police car was being driven at a speed of a little less than 10 miles an hour. Their combined speed therefore was in excess of 80 miles per hour. The police continued to pursue the Metro but lost sight of it after it had been driven the wrong way down a dual carriageway. A decision was made by the police to call the chase off because of the dangerous way in which the Metro was being driven.
3. The Crown case was that the driver of the Metro was the appellant. He had been disqualified from driving at the time of the offence and had been the subject of an anti-social behaviour order which prohibited him from driving any motor vehicle in the Borough of Dudley. The Crown relied on the identification evidence of Police Constable Loosemore and Police Constable Andrews to prove that the appellant was the driver. The identity of the driver was the only live issue in the case. The defence was one of alibi.
4. Police Constable Loosemore gave evidence that he was the passenger in the police car which was being driven by his colleague, Police Constable Andrews. He had heard over the radio that a pursuit was taking place and he was looking out for the Metro. He then saw the Metro travelling along the Stourbridge Road. The police car was travelling, as we have said, at less than 10 miles per hour.
5. When he was first able to see the driver's face, Police Constable Loosemore said that the Metro was about 30 metres away. In evidence he said that he saw the driver's face for two or three seconds. As the car got closer he was able to see more of the side of the driver's face rather than the front. He said he had seen the driver before and he recognised him. He immediately told his colleague, Police Constable Andrews, that he recognised the driver but he could not put a name to him. He did know however that he had seen him earlier that year.
6. In evidence he said that on 8th June 2007, that is to say 7 weeks before the incident with which we are concerned, he had dealt with the appellant for about a total of 8 hours. During the first half-an-hour to hour on that occasion, he had observed the appellant from a distance of no more than 3 metres. They had then spoken. There then followed what he described as between six and 10 episodes when the appellant was no more than 1 metre away from him. He had not seen the appellant again until 27th July, although he had seen photographs of him. What had happened was that immediately after the 27th July incident, he returned to the police station and within about 40 minutes of the incident, by going through some photographs kept at the station, he had been able to identity the appellant and discover his name. The officer later went through a video identification procedure, and hardly surprisingly, in view of his consideration of the photographs, identified the appellant as the driver of the Metro.
7. Police Constable Andrews said that as the Metro approached and passed the police car, he looked up and caught a glimpse of the Metro from a distance of about 10 to 15 metres. That was the only time he saw the occupants of the car. He described the driver as a white male, in his mid-twenties, with short dark hair and a dark goatee beard. He thought that he recognised the driver. He later learnt the appellant's name by also looking at photographs of him at the police station. He too identified the appellant in a video identification procedure after examining photographs of him.
8. The appellant, who is 24 years of age, has many previous convictions. These include two convictions for offences of driving while disqualified in 2003 and a further conviction for the same offence in 2005. At the close of the Crown case two applications were made to the Recorder: the Crown applied to adduce evidence of these three convictions under section 101(1)(d) of the Criminal Justice Act 2003. The defence application was that the judge should withdraw the case from the jury on the grounds that there was no case to answer, since the evidence of identification was so poor that it would be unsafe to leave the case to the jury.
9. As the Recorder observed when giving his ruling on both matters, there was a link between the two applications since, even if the evidence of the previous convictions was "relevant to an important matter in issue between the defendant and the prosecution", within the meaning of section 101(1)(d) and 103(1) of the 2003 Act, it would not be right to admit the evidence to bolster a weak case (see R v Hanson [2005] EWCA Crim 824, [2005] 1 WLR 3169 paragraph 18). The Recorder found that the previous convictions established a propensity in the appellant to drive whilst disqualified and that this propensity made it more likely that the appellant had committed the offence of driving whilst disqualified.
10. Next, he held that it would not be unjust to admit the evidence. He said at page 3G of the ruling:

"I have to bear in mind that the jury has already heard evidence indicating that the defendant is of bad character. In particular, it knows that he is the subject of or will shortly be told that he is the subject of a conviction for driving whilst disqualified on 25th August 2005. That is relevant because it has to be proved for the purposes of Count 2, and they also know that he is subject of an anti-social behaviour order because that is necessary for them to know for the purposes of Count 3.

In addition, the jury has heard evidence adduced in cross-examination by the defence of the police officers called in this case that they looked at what were referred to as mug shots of the defendant, and so that there is a risk obviously that the jury will infer that the defendant was of bad character; that added to the fact that one of the police officers describes recognising the defendant and refers to an extensive period of contact that he had with the defendant, although he gives no evidence as to the circumstances.

So there is already evidence of bad character which might lead the jury to speculate as to bad character of the defendant which is before the court, and so, it doesn't seem to me that it would be unjust or unfair to the defendant to allow in a sense two extra convictions of driving whilst disqualified to be admitted."

He then considered whether he should refuse to admit the evidence on the grounds that, as submitted on behalf of the appellant, it was being relied upon, or would be relied upon by the Crown to bolster a weak case.

11. The Recorder said that if the evidence of Police Constable Andrews has stood alone, it was would rightly be characterised as poor evidence of identification. It was no more than a fleeting glimpse of a man, whom he believed he recognised, having seen no more than a photograph of him. But the evidence of Police Constable Loosemore, in the judgment of the Recorder, fell into a different category. The Recorder said this at page 5B:

"It's right that his [Police Constable Loosemore's] observation was for a very short period - only some two to three seconds. I conclude on the evidence that the observation that he made was whilst PC Andrews was manoeuvring the car from the same carriageway as the car approaching, so that it was out of the way of that car and on the opposite side of the road, so I would obviously have to take into account in this respect that the car from which PC Loosemore made his observation was moving towards the car approaching. The car approaching was probably travelling at some seventy miles an hour or more, maybe as high as seventy-seven miles an hour, so that the combined speeds of the two cars was well in excess of eighty miles an hour, and of course it's suggested to me that PC Loosemore was looking through glass in his car and through the glass of the car approaching; but, on the other hand, he had good cause to look carefully at the face of the driver as the car approached, because of course he was looking at someone he knew to be an offender because he'd been forewarned of the approach of this car and that it was evading apprehension, and so, he knew that this was an offender and would have no doubt had in his contemplation the prospect that at some stage he might have to chase this individual and apprehend him.

So, as I say, he had good cause to look at this persons face, and his recognition of the defendant that he claimed to have made was based on the fact that on 8th June 2007, this offence having occurred on 27th July, he had over a period of eight hours had cause to observe the defendant as close quarters. He spent between thirty minutes to an hour observing him about three metres away, and then over the remainder of the period of eight hours he'd had may be six to ten episodes of encountering the defendant in episodes lasting from a few minutes to a quarter-of-an-hour where he was no more than a foot away.

It seems to me that this evidence does not satisfy the criteria of being poor so as to justify my withdrawing this case from the jury. It seems to me that there is a basis on which a jury could quite properly be satisfied that this evidence was reliable, and of course although by itself it would not be sufficient, if PC Loosemore's evidence passes the test of adequacy it seems to me that the prosecution are entitled to say that although on it's own it would not be sufficient PC Andrews' evidence could provide some corroboration for PC Loosemore's observation. That point may not go very far, but the prosecution would be entitled to say that it provides some support. But it seems to me that even if PC Andrews hadn't been able to identify and hadn't recognised the defendant, even on it's own PC Loosemore's evidence would be sufficient to pass the test which I have to address of whether the evidence in this case is weak so as to fall within the principles laid down in Turnbull and Galbraith so as to cause me to withdraw the case from the jury.

On the basis that I do not consider it appropriate to withdraw the case from the jury, it does not seem to me, it follows, that the bad character evidence can be seen as bolstering a weak case, and so, I intend to allow the application by the prosecution and reject the application by the defence."

12. On behalf of the appellant it is submitted that the Recorder should have acceded to the submission of no case to answer. It is said that the Crown case rested entirely on the reliability of the identification evidence. The suspect vehicle was travelling at a speed in excess of 70 miles per hour and the police vehicle at about 10 miles per hour. Police Constable Loosemore conceded that he only saw the driver's face for two or three seconds and that was through the window of his and the suspect's vehicle. After viewing photographs, he identified the appellant. It was conceded by the Crown that Police Constable Andrews only caught a fleeting glimpse of the driver. For these reasons it is submitted on behalf of the appellant that the identification evidence was inherently weak and that, even if the Recorder was to give a careful Turnbull direction, as he in fact did, the quality of the identification evidence was so poor that no reasonable jury could have convicted on it.

The next point that is made is that the Recorder was in error in allowing the evidence of the previous convictions of driving whilst disqualified to be admitted because it was unjust and unfair to the appellant to do so. It is said that the case was really a case not about driving whilst disqualified but about dangerous driving, and that the driving whilst disqualified charge was subordinate, if not peripheral, to the principal charge in this case which was one of dangerous driving.

The third complaint concerns a passage in the summing-up which we shall come to when we have dealt with these first two interlinked grounds of appeal.

In the course of argument, there was some exploration of the question whether it was possible for Police Constable Loosemore's evidence to be correct when he said that he had been able to see the face of the driver for two to three seconds, starting from a time when the Metro vehicle was about 30 metres away. Arithmetic would indicate that where there is a combined speed of about 80 miles per hour, it is far more likely that the officer would have had the face under observation for no more than one second and not two to three seconds as he said. That point was not explored in evidence at trial. It was not a point made by counsel to the Recorder. Nevertheless the point having been identified by my Lord, David Clarke J, it is in the arena, and it is a matter which, in our judgment, does require to be taken into account.

13. In our judgment, the assessment made by the Recorder that the identification evidence was not so poor as to require him to withdraw the case from the jury at the close of the prosecution case is unassailable. He took into account all the relevant evidence. The assessment of that evidence and whether it amounted to poor identification evidence involved an exercise of judgment. The Recorder was in a position, denied to this court, of seeing and hearing the evidence, in particular Police Constable Loosemore, and he was able to assess whether the quality of his evidence was so poor as to require the case to be withdrawn. It is plain that the Recorder considered that the evidence of Police Constable Loosemore was not so unreliable that he should withdraw the case from the jury. Of particular importance, it seems to us, is the fact that Police Constable Loosemore had been, as the Recorder said, alerted to the fact that there was a man driving dangerously. This was quite different from the case where a witness identifies or purports to identify someone whom he has never seen before and who, in circumstances where an incident occurs unexpectedly is not alert to the need to observe particularly carefully with a view to making an identification.
14. In this case Police Constable Loosemore was alert. He was a professional police officer, trained to carry out observation. Furthermore, recognised the driver. He told his colleague, Police Constable Andrews, immediately upon seeing the driver that he recognised him and within 40 minutes he had picked him out in photographs kept at the police station, and was able to name him.
15. It seems to us that whether Police Constable Loosemore had the driver under observation for one second or two seconds, it was, on any view, a short period of time. The Recorder was alive to that. He made the point himself. However, the other factors which we have mentioned amply justified the Recorder's conclusion that this was a case which was not so weak that it should be withdrawn from the jury's consideration. It was for the jury, having heard all the evidence to make their own assessment of the reliability of the identification evidence. We conclude, therefore, that the Recorder was right not to withdraw the case from the jury.
16. We turn to the next point which concerns the admission of the previous convictions for driving whilst disqualified. This was the point which troubled the full court and was the only point which the full court considered justified giving leave to appeal, although they did not restrict the appellant as to the points that could be taken on his behalf. The concern expressed by the full court was that the reason for admitting the evidence of previous convictions was that they showed that the appellant had a propensity to drive whilst disqualified and that this supported the identification evidence of the officer that the appellant was in fact driving the car on 27th July. The full court said that it was arguable that the three previous convictions for driving whilst disqualified were of no assistance to the jury on the only issue in the case, namely whether the police officers had correctly identified the driver. In expressing that view, the full court clearly did not have in mind a previous decision of this court in the case of R v Eastlake [2007] EWCA Crim 603. In that case the trial judge had certified this question:

"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?"

The judgment of the court was given by Dame Heather Steel and at paragraph 16 she identified the submission advanced on behalf of the appellants, that the bad character evidence was not relevant at all since the issue in the case was one of the correctness of the identification evidence. It was argued that the bad character evidence should not have been admitted because it was not relevant to that issue. At paragraph 19 the court said this:

"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."

In the light of this decision, it is clear that there is no substance in the point which the full court considered to be arguable. It was not clear to us whether Mr Harris was seeking to adopt the argument identified by the full court, but if and to the extent that he was, we reject it.

17. The two other points made by Mr Harris to which we have already referred, in our judgment, have no substance either. The judge very carefully considered whether it would be unfair and unjust to the appellant to admit the evidence of the previous convictions, in the passage which we have already quoted. He explained why he considered that it would not be unjust or unfair to him. In our view, his reasoning is impeccable and cannot be challenged.
18. As to the other point made by Mr Harris, we do not understand how the fact that the case was really about dangerous driving rather then driving whilst disqualified takes the appellant's case anywhere. The only issue in the case was whether the appellant was the driver of the vehicle and that was relevant to all three charges. The relevance of the previous convictions was that it went to support the evidence of identification. Therefore the fact that the most important and serious charge which the appellant faced was the dangerous driving is not to the point.
19. We turn, finally, to the third ground, which is a criticism of the way in which the Recorder directed the jury as to how they could deal with the evidence of Police Constable Andrews. At page 13G of the summing-up the Recorder said:

"If the prosecution case had relied only on the evidence of PC Andrews I would have directed you that it was too weak as identification evidence to support a conviction. If you were to be sure of the defendant's guilt it really can only be on the basis of your conclusion that the evidence of PC Loosemore is reliable, although reaching that conclusion you can consider whether or not what PC Andrews did have to say about the identification of the driver provides any support to the reliability of PC Loosemore's evidence, but in doing so you'd have to bear very carefully in mind that it was on a glimpse and he believed he recognised the driver. So you may think that really the critical thing for you to look at is whether you think that PC Loosemore's evidence is reliable as it stands on its own."

20. As we understand it, the criticism is that the Recorder should have directed the jury that they could not rely on the evidence of Police Constable Andrews in any way as supporting the evidence of Police Constable Loosemore. We do not accept this submission. In our view, the Recorder struck entirely the right note here. He was very careful to indicate to the jury that they might think that the extent to which the evidence of Police Constable Andrews could support the evidence of Police Constable Loosemore was very limited indeed, but it was a matter that they could take into consideration. It seems to us that is entirely correct. It was capable of supporting the evidence of Police Constable Loosemore, although standing on its own it could not have supported an identification and even as supporting evidence, it was of little weight. But the extent of the weight to be given to that evidence was a matter for the jury. We can find no error in this or indeed in any other part of the summing-up. In our view, the Recorder, both in his ruling and his summing-up, handled this case admirably. For all these reasons we dismiss this appeal.