England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WINCHESTER
Her Honour Judge Evans Q.C.
T20117247

		Royal Courts of Justice Strand, London, WC2A 2LL
		14 May 2013

Lord Justice Moore-Bick :

1. On 18^th May 2012 in the Crown Court at Winchester before Her Honour Judge Evans Q.C. the appellant was convicted of an offence of robbery in respect of which he was sentenced to 9 years' imprisonment. He now appeals against conviction by leave of the single judge, who referred his application for leave to appeal against sentence to the Full Court.
2. The robbery occurred on 8^th May 2011 at about 10.00 pm when Dee Riley and Michael Ryan were walking home after a meal at the West Ham leisure park in Basingstoke. They noticed two men loitering in the road ahead of them and as they approached them the two men attacked them, knocking them both to the ground and punching and kicking them before making off with Miss Riley's handbag. A dog unit was called to the scene and various items belonging to Miss Riley were found, including her handbag, which had been thrown into a hedge, and a number of receipts and vouchers which had been in it. The police found fingerprints on some of the vouchers and blood on one of the receipts. A DNA profile taken from the blood stain matched that of the co-defendant, James Ganney, who was a friend of the appellant.
3. The appellant took part in an identification procedure 16 days later and was picked out by Mr. Ryan. He was not identified by Miss Riley, who picked out a volunteer. The prosecution case was that the appellant and the co-accused had carried out the robbery together. The appellant said that he had been at home with his parents at the time of the robbery and that Mr. Ryan was mistaken when he identified him as one of the robbers. The co-accused declined to answer questions in interview and did not give evidence at the trial. He simply put the prosecution to proof of its case. In due course the jury convicted the appellant but acquitted the co-accused.
4. In her evidence at the trial Miss Riley said that when the two men approached her and Mr. Ryan one of them had pushed her by the left shoulder causing her to fall to the ground. He tried to take her bag. She heard Mr. Ryan calling for help and saw him lying on the ground to her left. She then felt a blow to her right and a very sharp pain in her face. The blow had been struck by the same man who had tried to take her bag. As she put up her hands to protect her face her bag was finally wrenched from her grasp. At that point the other man was behind her, but she did not know what he was doing. Mr. Ryan was curled up on the ground. As soon as the attack was over she ran to a nearby house for help.
5. Miss Riley described the two attackers as tall, in their 20's with what appeared to be local accents, both white with dark hair. The receipt on which the blood stain was found had been deep in her handbag. In his evidence Mr. Ryan said that there had been some street lighting at the scene of the robbery, but that when the attack started his view of the two men had been poor because they had been walking towards Miss Riley and him and the light had been behind them. He said that one of the men had had a hooded top and the other wore dark clothing. He described them both as being slightly taller than himself.
6. Both victims were injured in the course of the robbery. Miss Riley suffered two fractured eye sockets and a fractured nose. Mr. Ryan was kicked in the ribs and head, suffering a fractured eye socket, a significant injury to one of his eyes and a number of broken ribs. All that had happened at an early stage in the incident. He said that at one point he had curled up in a foetal position on the ground with his hands over his face in order to protect himself. He said that he had not seen the blow coming which injured his eye, but that the man wearing the hood had been responsible. He thought that both men had kicked him.
7. When he was asked to describe what he had seen of the attackers Mr. Ryan said that after he had been knocked to the ground the two men had tried to seize Miss Riley's bag. He had managed to get up from the ground and at that point had had a good view of the face of one of the men who was pinning Miss Riley's arms back while the other wrestled with her bag. The light was then behind Mr. Ryan, shining on the man's face, and he got a good look at him. He was wearing dark clothing. In his initial description to the police Mr. Ryan described him as being about 5 feet 11 inches tall. The appellant is about 6 feet 3 inches tall.
8. In addition to the evidence of the witnesses there was DNA evidence that the blood found on the receipt belonging to Miss Riley had come from the co-accused.
9. At the close of the prosecution case Miss Dempsey, relying on the well-known case of R v Turnbull [1977] Q.B. 224, invited the judge to withdraw the case from the jury on the grounds that this was a classic case of an observation based on a fleeting glance, or at any rate one made under difficult conditions, and that the identification of the appellant was too weak to support a safe conviction. The judge considered the evidence relating to the speed of the attack, the proximity of the victims to their assailants, the quality of the street lighting and the positions of the witnesses at different stages, in particular in relation to the lighting. She also considered specific weaknesses in the evidence: the fact that neither witness mentioned tattoos, although the appellant had tattoos on his neck; the fact that Miss Riley had been unable to pick out the appellant at the identification procedure; the fact that Mr. Ryan was under attack, had suffered injury and might therefore have been distracted; and the discrepancy between the height of the assailant as estimated by Mr. Ryan (5 ft 11) and the height of the appellant (6 ft 3 in). Having considered all those matters the judge concluded that it was not a case of a fleeting glance and that although the identification evidence might not have been of the highest quality, it was not so poor that she should withdraw the case from the jury.
10. That was sufficient for her decision, but the judge then went on to say that the identification was capable of being supported by evidence of the appellant's previous conviction for an offence of robbery committed with the co-accused, which the prosecution had indicated that it would apply to adduce as evidence of bad character. She indicated that in her view that evidence, together with the evidence that the co-accused's blood had been found on the receipt from Miss Riley's handbag, was capable of supporting Mr. Ryan's identification of the appellant because it made it less likely that he had by chance picked out at the identification procedure an innocent person who happened to have a history of this kind of offending.
11. The next day the prosecution made a formal application to adduce evidence of the appellant's conviction for robbery and also evidence of a conviction for assault occasioning actual bodily harm arising out of an unprovoked attack in much the same location on a middle-aged man walking home at night, whom the appellant had knocked to the ground and kicked. Although Miss Dempsey submitted that the case was too weak to justify allowing evidence of the appellant's convictions to be adduced in support of it, the judge held that there was a case to go to the jury in any event and that the two convictions were relevant, so far as the appellant was concerned, to the important issue of identification, because they tended to support the other evidence of identification. She also held that they tended to support the conclusion that the appellant had a propensity to make attacks in that particular area on older people together with his co-accused. Although she accepted that the evidence of the convictions was highly prejudicial, she considered it to be highly probative and did not think that admitting it would have an adverse effect on the fairness of the trial.
12. There are two grounds of appeal in this case: the first is that the judge should have withdrawn the case from the jury because of the weakness of the identification evidence; the second is that the judge should not have allowed the prosecution to adduce evidence of the appellant's two previous convictions.

Identification

13. It is well known that miscarriages of justice have occurred from time to time as a result of the mistaken identification of defendants by honest witnesses and it is for that reason that in Turnbull the court emphasised the importance of withdrawing the case from the jury if the identification evidence is weak. It also emphasised the importance, even in cases which are allowed to proceed, of giving clear directions to the jury warning them of the dangers inherent in evidence of this kind and drawing to their attention particular aspects of the evidence that require careful consideration. The circumstances in which the original sighting of the defendant took place are critical and vary widely from case to case. In the present case it is accepted that the quality of the street lighting was poor and that Mr. Ryan's observation (which is the only relevant observation for present purposes) took place under difficult conditions, because he had been knocked to the ground at the beginning of the attack and was no doubt shocked. However, his evidence was that he had managed to get up as the two men were trying to take Miss Riley's bag. He said that the man wearing the dark clothing was standing behind her, so that the street lights were shining on his face and that he had got a good clear look at him as he tried to pull the other man away. After that he was knocked down again.
14. Although the whole incident lasted only a few minutes, this was not really a case of a fleeting glimpse, such as one might have of a person running away from the scene of a crime. Mr. Ryan and the two robbers were all in close proximity and he was able to get a good look, albeit for only a short period of time, at the face of the man standing behind Miss Riley. Experience suggests that it is not necessary to look at a person's face for long in order to take in its essential features, especially when there is good reason for it to be imprinted on the mind of the observer, as was the case here. It is quite true that neither witness mentions seeing any tattoos, though whether they were clearly visible under the prevailing conditions is uncertain. There is also the discrepancy between Mr. Ryan's assessment of the attacker's height and the height of the appellant, but there is a real distinction between the instinctive process of taking in a person's facial features and the conscious mental process involved in assessing a person's height in feet and inches.
15. In our view this was a case in which the quality of the original observation was good enough to justify the judge's leaving the case to the jury provided that she warned them clearly of the dangers inherent in visual identification and drew their attention to the specific weaknesses in the evidence. In the event, no criticism is made of that part of her summing up.
16. When giving leave to appeal the single judge drew attention to the fact that in her ruling the judge had referred to the support that could be given to Mr. Ryan's identification of the appellant by his previous convictions. In our view it was not open to her to rely on that evidence when she made her ruling, because at that stage there had been no application to adduce it and she had not ruled on its admissibility. However, it is clear from the transcript of the judge's ruling that her decision did not depend on the admission of that evidence; it stood on the quality of the identification evidence alone, which she considered was good enough to justify leaving the case to the jury as it stood.
17. In those circumstances this ground of appeal fails.

Bad character

18. The appeal on this ground rests on two submissions: that neither of the convictions was relevant to any important matter in issue in the proceedings and that, even it was, the admission of that evidence was likely to have such an adverse effect on the fairness of the proceedings that it should have been excluded under section 101(3) of the Criminal Justice Act 2003. Miss Dempsey drew the judge's attention to the case of R v Hanson [2005] EWCA Crim 824 and in particular to the warning given by this court that judges should not allow evidence of bad character to be adduced in support of a weak case. The prosecution, on the other hand, argued that the convictions were relevant, both because they supported Mr. Ryan's identification of the appellant and because they demonstrated a propensity to commit robbery in conjunction with the co-accused and a propensity to attack older people in public places in that part of Basingstoke.
19. The judge relied on the decision of this court on R v Eastlake [2007] EWCA Crim 603 as support for the proposition that evidence of bad character which indicates a propensity to commit offences of the kind with which the accused is charged can support identification evidence placing him at the scene of the crime. Dame Heather Steel giving the judgment of the court said (paragraph 19):

"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."

20. Miss Dempsey submitted that the present case differs from Eastlake in a number of respects and no doubt it does, but that does not undermine the principle for which that case stands, namely that evidence of a previous conviction can be admissible for the purpose of reinforcing other relevant evidence. For that purpose it does not need to capable of showing a propensity to commit offences of the kind under consideration; the question, as always, is whether the previous conviction is relevant to an important matter in issue between the prosecution and the defence and, if so, whether its admission in evidence would have an adverse effect on the fairness of the proceedings.
21. Evidence of one or more convictions for offences of a similar kind are clearly capable (depending on the circumstances) of showing that the accused has a propensity to commit offences of the kind with which he is charged and therefore of bolstering a visual identification of the defendant as the person who committed the offence. That was the position in R v Eastlake. It may also reinforce other evidence tending to show that the defendant committed the offence with which he is charged. However, it must be approached with care. In R v Hanson the court gave guidance on the approach that judges should adopt when faced with applications to adduce evidence of the defendant's previous convictions. Sir Christopher Rose V.-P. giving the judgment of the court pointed out that a single previous conviction, even for an offence of the same description or category, will often not be evidence of a propensity to commit offences of that kind. It may do so if it demonstrates a tendency towards unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged. In other cases, however, it may be very difficult to infer from a single conviction that the defendant has a propensity to commit offences of that kind. The court also pointed out that when considering what effect evidence of a conviction is likely to have on the fairness of the proceedings, the judge should take into account the degree of similarity between the previous conviction and the offence charged even if they share the same description. It will often be necessary, even when considering offences of the same description or category, to examine each individual conviction rather than simply to look at the name of the offence or at the defendant's record as a whole.
22. In the present case the judge recognised that evidence of the appellant's convictions was highly prejudicial, but she considered that it should be admitted because it was highly probative. In our view that proposition needs to be examined with some care, given that the robbery and the assault shared some common features with the present offence, as well as some dissimilarities.
23. We consider, first, the appellant's conviction for robbery at a garage in the area of Basingstoke where the attack on Mr. Ryan and Miss Riley subsequently took place. The circumstances of this offence were described to the jury in the summing up as follows:

"Now of the conviction together for robbery Mr. Dossett and Mr. Ganney this was a robbery in 2010 and the officer said that the details […] are that both Mr. Ganney and Mr. Dossett and another male entered the Shell Garage in Old Worting Road. One attempted to leave with a basket of goods. The shopkeeper was hit, pushed and pulled and the men left."

24. It is clear, therefore, that the three men had entered the garage shop together, and certainly the appellant and Mr. Ganney were prepared to use force in order to steal alcohol. Although the violence does not appear to have been particularly great, this was a casual, opportunistic, public offence of theft accompanied by violence and in that sense it bears some real similarity with a street robbery or "mugging", in which the use of some degree of force is an integral part of the offence. Furthermore, that robbery was committed in the same area as the instant offence.
25. The second conviction, committed against an elderly man, again in the same part of Basingstoke, was described by the learned judge to the jury as follows:

"In relation to Mr. Dossett alone in 2010 the ABH on Mr. Gallagher. [The officer] said this was an elderly man out for an evening walk in South Ham Road. He said two men approached him in an alley. He was nudged and stumbled to the ground. He got up. Later he was kicked on the ground and [the officer] … said … that Mr. Dossett and another male gave themselves up in an intoxicated state with blood on them and blood from Mr. Gallagher was found on Mr. Dossett's shoe and when he was interviewed Mr. Dossett said that he had not punched Mr. Gallagher. Mr. Gallagher had in fact set upon him and the then said, "I was so pissed I kicked him once when he was on the floor" and he said, "I pleaded guilty to ABH". "

26. This was an attack by two men on their victim in significantly similar circumstances to the present allegation: they approached Mr. Gallagher and assaulted him by causing him to stumble to the ground, and they then kicked him while he was on the ground with sufficient force to leave Mr. Gallagher's blood on the appellant's shoe. It seems that during the attack, as in the instant case, the victim was punched by at least one of the men. The principal dissimilarity is that nothing was stolen.
27. Particularly given the observations of Sir Christopher Rose V.-P. in Hanson that "[a] single previous conviction for an offence of the same description or category will often not show propensity", it is necessary to consider these two previous convictions together. As indicated in Hanson, the judge should take into account the degree of similarity between the previous conviction and the offence charged even if they share the same description; the name of the offence, taken alone, will often be an insufficient guide. As we have observed, these two previous convictions occurred in the same area of Basingstoke as the instant offence; on each of the two previous occasions the appellant committed the offence with at least one other man and the index offence was committed by two people; they were seemingly opportunistic in nature; and they involved public violence inflicted on strangers. The robbery, although it occurred in a garage shop, entailed the use of violence that ceased – as in the present case – when the robbers had secured the goods they wanted to steal; and the assault on Mr. Gallagher was carried out in broadly similar circumstances to the attack on Miss Riley and Mr. Ryan, save that none of his property was stolen.
28. The admission of previous convictions to show propensity is no longer confined by the common law requirement for "striking similarity" between the previous offending and the offence being tried. It is important that Hanson should not be understood as maintaining that requirement by a different use of language. At the same time it is important that the requirement to show propensity should not be allowed to degrade or diminish to the point where convictions are admissible if they merely show a preparedness to engage in crime of vaguely the same kind as the index offence. This court has repeatedly emphasised the need for care in this. There must be a logical basis for concluding that the previous offending shows that the defendant was more likely to be prepared to commit the specific crime in question. Provided such a logical connection can be made, there is no requirement that the previous offending should consist of or include an offence of a strikingly, or even markedly closely, similar nature to the index offence.
29. Here the appellant's previous convictions showed that he was capable of using violence of a different kind to ensure the success of a theft, and thus of being guilty of robbery. Further, the conviction for assault demonstrated that, on a separate occasion, he was capable of using similar violence in similar conditions to that of the offence in question, although without the motive of theft. Although not every judge might necessarily have reached the same conclusion, we consider that, taken together, it was open to the judge to conclude that the convictions could logically and properly demonstrate a propensity to behave as the appellant was said to have behaved in the robbery being tried. Whether or not they did so was for the jury to decide.
30. Additionally, in our judgment the previous convictions for robbery and assault were admissible in relation to the identification of the appellant as one of the perpetrators of the offence on 8^th May 2011. As regards the robbery, in the present case there was strong evidence in the form of the blood stain and the DNA evidence that the co-accused had been involved in the offence and the conviction for robbery tended to show that the two of them associated with each other in the relevant area of Basingstoke. The evidence therefore tended to link the appellant to the offence through his links to the co-accused and in that way tended to support Mr. Ryan's identification by making it less likely that it was the result of pure coincidence. The judge and the jury were entitled to consider that evidence all together. As the crown emphasised, once the link to Ganney was established by the blood on the slip from the handbag and the appellant had been identified by the witness, the previous participation by both of these men in a robbery, even if of a somewhat different kind, took on a logical, not merely prejudicial, significance.
31. Furthermore, the judge was entitled to leave the question to the jury as to the chances of Mr. Ryan's mistakenly picking out from a line of nine men on an identification procedure the person who had previous convictions for a robbery and an assault committed very close to the scene of the present attack. The identification evidence was good enough to stand on its own and in our view strong enough to justify admitting evidence of bad character in support of it. For these reasons we are satisfied that the judge was right to admit the evidence of the appellant's previous convictions for robbery and assault.
32. Evidence of a defendant's previous convictions, especially convictions for offences of the same description, is liable to be prejudicial because it carries with it a risk of diverting the jury away from a careful analysis of the evidence towards finding that the defendant is guilty simply because he has previously committed an offence of the same kind as that with which he is charged. It is important, therefore, for the judge in summing up to explain to the jury the relevance of any evidence of previous convictions and its limitations.
33. We turn in those circumstances to the directions in law relating to the previous convictions, as given during the summing up:

"Now what about the Defendants' previous convictions? Well you have heard that in May 2010 both Defendants pleaded guilty to an offence of robbery that took place at a filling station on Worting Road not far from the scene of the robbery that you are now concerned with. Now that robbery was of a different nature to the one now alleged because […] it involved a basked being filled with alcohol and then an attempt to leave the shop without paying and then the shop keeper being pushed and hit as he struggled with the basket. Now in addition to Mr Dossett you have heard that in the same month in 2010 he was involved with another male in an unprovoked attack on a retired man in which the man was knocked to the group and he was kicked on the ground and that too happened fairly close to the scene of the robbery, an attack that you are now considering.

Now the prosecution argues that this evidence is relevant to the question of whether Mr Ryan has correctly identified Mr Dossett as one of the robbers. They say firstly what are the chances that Mr Ryan would mistakenly pick out from a line of nine males on an identification procedure the person who happened to have a previous conviction for robbery and ABH committed very close to the scene of the attack? As well as that they say what are the chances that of all the people that Mr Dossett committed that previous robbery with it turns out to be Mr Ganney who is the man whose blood is found on the receipt that was in Miss Riley's handbag?

Now secondly the prosecution say that the fact that Mr Dossett has that previous conviction for robbery with Mr Ganney and a conviction for ABH committed with another male shows that he Mr Dossett has got a propensity or a tendency if you like to commit an offence of robbery with Mr Ganney and a propensity or a tendency to be violent towards older people having attacked Mr Gallagher in a similar way to the way the prosecution say that Mr Ryan was attacked and they say that those factors make it more likely that Mr Dossett was involved in these offences.

[. . .]

Now it is for you (to) decide whether in relation to Mr Dossett, the evidence of his previous convictions provides any support for the correctness of the identification by Mr Ryan and/or whether it does in fact show a propensity or a tendency as the prosecution suggest.

[. . .]

Now the defendants both accept that they do have those convictions. But they say that the robber that the prosecution rely upon is of a very different nature to the one that they now both face. They say in effect that the robbery was a shoplifting gone wrong. Very different to the street robbery now alleged and as well as that they say that they both pleaded guilty to the robbery of the filling station and Mr Dossett says that he pleaded guilty to the ABH upon Mr Gallagher. It is a matter entirely for you to decide the extent to which if at all the evidence of previous convictions establish what the prosecution suggest and if it does the extent to which it assists you in determining guilt.

What is very important is that evidence of previous behaviour is only part of the evidence in this case. Its importance should not be exaggerated and you should not convict either or both defendants wholly or mainly upon the evidence of bad character. It does not follow that just because the defendant behaved in a certain way in the past he did so again on this occasion. Bad behaviour in the past cannot alone prove guilt."

34. Therefore in the course of her summing-up, the judge explained to the jury the central aspects of the two ways in which these convictions had relevance and potential probative value (viz. supporting the identification of the appellant and propensity). She clearly explained the basis on which the prosecution relied on this material and she emphasised the defence submissions as to their circumstances and certain suggested dissimilarities. The judge made it clear that these were essentially questions of fact for the jury and cautioned them against attributing undue significance to that material. Although the learned judge did not give the jury a specific direction in this discrete context on the burden and standard of proof, her earlier direction on these issues was sufficient. Accordingly, we consider that the judge directed herself and the jury correctly and in this regard it is important to have in mind the direction of this court in Hanson:

"If a judge has directed himself or herself correctly, this Court will be very slow to interfere with a ruling […] as to admissibility […]. 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 sense (compare R v Makanjuola [1995] 2 Cr App R 469 at 473E)."

35. In our judgment there is no proper basis for concluding that in admitting this material the judge made a "plainly wrong" decision or that she exercised her discretion unreasonably.
36. In all the circumstances, this appeal against conviction is dismissed.
37. Turning to the application for leave to appeal against sentence, Miss Riley was hit hard to her face and she suffered two fractured eye sockets and a fractured nose. She was badly shaken by this shocking and violent crime. In line with the former Sentencing Guidelines Council's Definitive Guideline for Robbery the judge correctly placed this offence in category 3 to reflect the fact that the victims had been caused serious physical injury as the result of the use of significant physical force. It follows that we reject the appellant's submission that the injuries summarised above did not amount to injury of a kind falling within this bracket. That led to a sentencing range of 7 – 12 years with a starting point of 8 years' custody. The judge found that the appellant's criminal history, considered above, was an aggravating factor. Two offenders were involved, and whichever of them delivered the greater number of blows, they were equally involved in the commission of this offence, each fully engaged in playing his part. The appellant was not entitled to the credit that would have resulted from a guilty plea. In all the circumstances, notwithstanding the fact that the offence was essentially opportunistic, that the appellant was acquitted of the assault on Mr. Ryan and that the judge withdrew the count charging an offence contrary to section 20 of the Offences Against the Person Act 1861 against Miss Riley, a sentence of 9 years' immediate imprisonment is unassailable.
38. Finally, although at one stage the judge asked for the return of the papers for possible reconsideration of the sentence under the slip rule,^[1] in the event she decided that that step was unnecessary because, on reflection, she concluded, without convening a hearing, that the sentence was appropriate. The willingness of a judge to revisit a sentencing decision in order to ensure that it was not flawed does not raise an expectation that the sentence will, as a consequence, be varied. It indicates no more, at its highest, than the judge's preparedness to review her original decision.
39. In consequence, we refuse the application for leave to appeal the sentence.

Note 1   See Powers of Criminal Courts (Sentencing) Act 2000, section 155 (1).    [Back]