England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		25 May 2012

1. LADY JUSTICE HALLETT: On 28 July 2011 in the Crown Court at Sheffield before Openshaw J, the appellant was convicted of an offence of aggravated burglary and sentenced to 7 years' imprisonment. He appeals against conviction with leave.
2. The facts can be shortly stated. On 6 February 2011 Richard Allen, the complainant, was at home alone. At 7.30pm he answered his front door to a man who asked for Steven. The complainant explained that no one called Steven lived at the address, before closing the door. 20 to 30 minutes later there was a loud banging at the complainant's door. He opened to find three men with their faces obscured. We need only focus on one man, male 2, said to be the appellant.
3. The men attacked the complainant and pushed their way into his house, where the attack continued. Mr Allen was beaten and threatened with a crowbar and hammer. His house was searched and property taken. Mr Allen's view of male 2 was initially obscured by the man's hood, which was drawn up around his head concealing part of his face. However, during Mr Allen's struggle with the men the hood slipped off, uncovering his entire face. Male 2 continued to strike Mr Allen and did not immediately re-cover his face. At this stage he was only 2 to 3 feet away from Mr Allen. Mr Allen had him in view for what he told the jury was about 2 to 3 minutes.
4. When first asked to give a description of his attackers, Mr Allen described male 2 as being white, 5 foot 9 inches tall, of stocky build and aged in his mid to late 20s. He also said that the man had a pockmarked face, by which he meant it was scarred, and a Barnsley accent.
5. After the men left, Mr Allen called the police and discovered that his laptop and a hammer had been stolen. The only evidence linking the appellant to the scene and the offence was Mr Allen's identification of him at a video identification procedure four days later.
6. The appellant refused to answer questions in interview, and at trial his defence was one of mistaken identity.
7. During their retirement the jury sent a note which read:

"Can we see the photograph that the witness identified the accused with? If not, did the photograph have a marked face?"

8. The judge ruled that the photograph could not be provided to the jury because it had not been adduced in evidence during the trial.
9. The first ground of appeal is that the judge erred in not withdrawing the case from the jury at the close of the Crown's case. Mr West, who was trial counsel, described the identification evidence as weak, and submitted that it was further undermined by the fact that the appellant did not have a pockmarked face as described. Mr West was able to point to a number of factors which might affect the quality of Mr Allen's identification. As the judge described it: "This was a sudden and unexpected attack upon Mr Allen in his own house, which was frightening, even terrifying. It was over quickly. Mr Allen had sight of his attacker's face for what he estimated was 2 or 3 minutes", (which, as the judge observed, may well have been an overestimate).
10. By the time male 2's face became visible, Mr Allen had suffered blows to both arms and was on his back with his view partially blocked by his own arms and legs. Male 1 was standing at 90 degrees to Mr Allen's right, wielding a crowbar towards his head. When one adds to that the fact that Mr Allen said his attacker had a pockmarked face, by which he meant his attacker had facial scarring (which the appellant does not), Mr West asserted that this was plainly a case where the identification evidence was poor within the terms of R v Turnbull [1977] QB 224.
11. He relied on the oft-cited passage from Turnbull:

"When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification."

12. Mr West argued that this was either a fleeting glimpse case or, at the very least, it was a case of a longer glimpse in difficult circumstances. There was here no other evidence to support the correctness of identification, thus Mr West argued there was a real possibility that Mr Allen fell squarely into the category of a mistaken but convincing witness, and therefore the case should have been withdrawn from the jury.
13. In our judgment, there is considerable force in many of the points made by Mr West, as the trial judge, Openshaw J, himself acknowledged. However, there is even more force in the point that the trial judge was far better placed than the members of this court to assess the true strength or weakness of the identification evidence. As Mr West properly conceded, Openshaw J performed the exercise of analysing the quality of the evidence with conspicuous care and fairness. Having done so, the judge observed that the attack lasted for a considerable time inside Mr Allen's own home. During that time Male 2's hood slipped down and revealed his full face. Mr Allen was looking at his attacker at a very short distance during a repeated assault upon him. Thus, this was far from a fleeting glance case, and, in our judgment, although the conditions that the complainant was under were far from ideal, the evidence was not so poor that the judge was obliged to withdraw it from the jury.
14. Thereafter, Openshaw J gave the jury the very fair and full warning that he was obliged to do. Mr West has absolutely no criticism to make of the way in which the judge summed the case up to the jury and directed them on the dangers of relying upon a mistaken but convincing witness of identification.
15. For all those reasons, therefore, we reject the assertion that the trial judge was bound to accede to the submission of no case and that the conviction is unsafe on that ground.
16. We turn to the second ground of appeal, the jury's note asking to see the photograph i.e. the image used in the video identification procedure. Mr West argued that this question illustrates the danger of leaving a poor case to a jury. Notwithstanding Openshaw J's careful summing-up, Mr West claimed the jury's question shows that they were concentrating on the wrong issue. It was his contention that the question implies that they were attempting to compare the complainant's description at the time with an image of the appellant, rather than with the appellant himself. Further, he submitted their question could have no relevance to the proper issue for their consideration, which was whether they could be sure that the complainant's observation was capable of substantiating a reliable identification of the appellant. The evidence was clear and not challenged that the appellant did not have a marked face and never had had. The jury could see this from their jury box, and, therefore, he argued they should not have been speculating on whether he had any condition or facial feature in the past which might have been confused with a pockmarked face.
17. Accordingly, Mr West sought to persuade us that that the jury must have adopted one of two approaches, either of which would render the conviction unsafe. They either thought that if the photograph the complainant identified showed a man with marked face, then the appellant must somehow have subsequently changed his appearance to appear mark-free in the dock, or they thought that if the photograph showed a man with an unmarked face, then this somehow corroborated the identification of an unmarked man.
18. Mr West has also informed us that one of the reasons the jury was not given a copy of the image was that the local branch of the Crown Prosecution Service enforced a blanket policy not to provide DVDs of identification procedures as a matter of course. Legal representatives in the area faced repeated and unnecessary difficulties in obtaining this material, even when relevant to a criminal trial. Not surprisingly the trial judge took exception to the suggestion of a blanket policy, as do we. However, Mr West attempted to use the policy as a platform to argue that, as a result, the appellant was denied a fair trial.
19. Given our concerns at any blanket policy we explored this matter in some detail in argument with counsel. We are satisfied that in reality, the appellant's lawyers were given, the opportunity before the trial of seeing the evidence, by viewing it at a police station. The conditions may not have been ideal but we are satisfied there was no question here of the defence being deprived entirely of access to important material. Thus, they could, if necessary, apply to the court for an order for production or attempt to elicit any admissions from the Crown as to the content.
20. Things have also moved on in relation to this appeal, in that Mr West has been given an opportunity by Mr Hillis for the Crown to see the DVD. When pressed, Mr West was unable to point to any substantial or significant argument that he could have deployed at trial had he seen the DVD before the trial. Also, he was unable to point to any way in which the jury may have had their confidence in Mr Allen's identification of the appellant undermined had they seen the DVD of the images.
21. Since this appeal was launched, we are pleased to note that the matter of disclosure of DVDs of video ID parades has been resolved, and the CPS branch responsible for the blanket policy (a frolic of its own) has been brought back into line with national Crown Prosecution Service policy.
22. Thus the only relevance of the jury's note now is whether it suggests that the jury was following an irrelevant and impermissible line of enquiry.
23. In our judgment, the jury's note does not suggest that the jury was following an irrelevant line of inquiry. They were simply focusing appropriately on the issue in hand, namely was Mr Allen a reliable or mistaken witness? They wanted to analyse what was his first description, what were the photographs shown to him of the appellant and what were his opportunities for observation and then identification.
24. The judge could not assist them further by admitting evidence of the DVD photographs which had not been put before them by either party during the course of the trial. The jury therefore had to rely upon the material that had been put before them by the parties. The jury's verdict indicates that, whatever the contents of their note, ultimately, that material was sufficient to enable them to reach the conclusion that the appellant had been correctly identified. Nothing has been put before us, despite Mr West's best efforts, to undermine the safety of that conclusion.
25. Before leaving this case, however, we wish to make reference to one other matter that has come to our attention during the course of the hearing. Mr Hillis, who did not in any way attempt to support the blanket policy and who has acted with conspicuous fairness throughout, put before us an e-mail emanating from Ms Wilson (Head of the Higher Court Advocates Unit) in which this blanket policy was set out. There are additional lines that caused us considerable concern and which we feel we should mention. They read as follows:

"Don't forget - even where a judge makes an order, we can write to Judge Goldsack QC in appropriate cases with further representations regarding the order."

26. At first blush - and we emphasise "at first blush" because we do not have any explanation of what those lines mean - they suggest a misunderstanding, at the very least, of the effect of a judge's order. Where a judge's order is made, that order must either be complied with or an attempt made to appeal it. We say no more on that subject other than to highlight our concern that a document in those terms should have been distributed amongst Crown prosecutors.
27. For all the reasons we have given this appeal must be dismissed.