England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT PETERBOROUGH
Mr Recorder Goodwin
T20107100

		Royal Courts of Justice Strand. London. WC2A 2LL
		26/02/2015

Sir Brian Leveson:

1. On 9 February 2011, in the Crown Court at Peterborough, before Mr Recorder Goodwin and a jury, the appellant was convicted of robbery in relation to Mr Yuri Rocha. His defence had been that he was misidentified as one of the robbers by Mr Rocha and his girlfriend, Ms Claudia Pereira. He sought leave to appeal against his conviction, but leave to appeal was refused by the single judge and, when renewed on 5 October 2011, by the full court (Toulson LJ, Openshaw J and HHJ Rook QC): see [2011] EWCA Crim 2932. He now further appeals following a reference to the court by the Criminal Cases Review Commission ("CCRC") pursuant to s. 9 of the Criminal Appeal Act 1995.
2. The robbery took place on 23 April 2010 when Mr Rocha and Ms Pereira were using a computer in a cafe in Lincoln Road, Peterborough. A man, who has been dubbed "Male 1", came into the cafe and invited Mr Rocha outside. When Mr Rocha refused, Male 1 grabbed his shirt. Another robber, Male 2, came into the cafe and hit him on the back with a piece of wood, a necklace was torn from his neck and the robbers ran off with it. The light was good, but, according to Ms Pereira, the incident lasted only about 30 seconds, ending when staff and others at the cafe intervened. The prosecution's case is that the appellant is Male 2. Later that day Mr Rocha and Ms Pereira gave statements to the police, in which they described Male 2. Mr Rocha described him in these terms:

" [He] was ... Kurdish and white, aged between 25 and 30, of medium build, shorter than [Male 1], approximately 1.50 metres tall. He also had black hair, but I cannot describe it because he was wearing a black baseball cap. He was not wearing glasses and had not shaved, with hair all over his face. He was wearing a white short sleeved T-shirt with letters written in black on the front. He was wearing light blue jeans and trainers. Both males spoke poor English with a Kurdish accent".

3. Ms Pereira description was that Male 2 was:

"a white male around 1.6 metres tall of an average build with no distinguishing features, marks or scars that I noticed. He was wearing light blue jeans with a white T-shirt, which had some kind of pattern on the chest in black. His hair was gelled forwards, he had a small fringe and it was dark".

4. On 25 April 2010, Mr Rocha and Ms Pereira were walking down Lincoln Road at8.30 or 9.00 pm to visit her mother. They saw the appellant on the other side of the road and thought that they recognised him as Male 2. They called the police, and pointed out the appellant as one of the robbers. The police arrested him. Mr Rocha and Ms Pereira observed the arrest, and so had ample opportunity of about half an hour, to have a careful look at the appellant. They both provided further statements In her statement of 29 April 2010, Ms Pereira said that she recognised the appellant "straight away" when she saw him, and that "Male 2 was wearing the exact same clothes as he wore when [Mr Rocha] was robbed". In his statement of 5 May 2010, Mr Rocha said that he too recognised the appellant as the robber "straight away" and asked Ms Pereira to call the police. According to the evidence of Ch. Insp. Nicholas Knight, one of the arresting officers, the streets were well lit, but there was a slight drizzle and visibility was not very good.
5. On 26 April, Mr Rocha and Ms Pereira attended the police station for separate VIPER procedures, and they both identified the appellant from nine photographs of men of similar age and appearance.
6. Mr Rocha and Ms Pereira gave evidence at the trial; Mr Rocha used an interpreter, which apparently caused some difficulty. In his evidence in chief, Mr Rocha confirmed the description of Male 2 (but not his clothing) that he had given in his statement of 23 April. He said that Male 2 had a beard that had some designs or "drawings" shaved into it, and that on 25 April he was wearing the same clothing as on 23 April, apart from the trousers: he was wearing the same jacket, the same hat and the same shoes. (He had not mentioned in his statements that on 23 April Male 2 wore a jacket.) He said in evidence that between the time of the robbery and 25/4/10 Male 2 had shaved his beard: this was not mentioned in his statement of 5/5/10. He said that Ms Pereira recognised Male 2 in the street independently of him. He described identifying one of the robbers in the VIPER procedure. The transcript of his cross-examination is imperfect, but he further described Male 2's beard: it was a full beard covering the whole of the sides of the face, and - he confirmed - had the shaved "drawings". He also said that he could see, although Male 2 wore a hat, that his hair was "gelled forward" and he had a dark fringe. Of the events leading to the appellant's arrest, Mr Rocha said that he recognised Male 2 and told Ms Pereira that he was one of the robbers.
7. Ms Pereira's evidence in chief about Male 2 was that he wore light coloured jeans, a white T-shirt, a black hat and white shoes. When she was asked about the events on 25 April, she said that, before she and Mr Rocha recognised Male 2 that evening, she had seen him with some friends that afternoon on Lincoln Road: she did not mention this in her statements. She had reached for her mobile telephone, and Male 2 had ran off: in cross-examination, she explained that she had not called the police because she had not seen where he ran. She went to the shops, and then went home and told Mr Rocha that she had seen one of the robbers. She saw him again in the evening when she was with Mr Rocha: Mr Rocha saw him first and told her to call the police, and then she looked back and saw Male 2. Male 2 was now wearing different clothes from earlier that day, and also from those that he had worn on 23 April apart from the hat: in the evening on 25 April, he wore darker jeans, different shoes and a black leather jacket. She explained her contradictory statement of 25 April on the basis that she had meant there that he was wearing the same style of clothes: English is not her first language. In cross-examination Ms Pereira confirmed the description of Male 2 given in her statement of 23 April: she explained that his hat had come off during the incident and then she had seen his hair gelled forward.
8. The appellant's case was that, at about the time of the robbery, he was on Lincoln Road and he saw police cars and ambulance outside the cafe. He was wearing a white T-shirt, black jeans and a black cap; these were the clothes that he was wearing when he was later arrested. He was on his way to New Link, an agency in Peterborough which provides assistance to immigrants, where he had an appointment at 3.20 pm with a Mr Tariq Zandi who worked there. According to the appellant, he arrived at The New Link at about 3.00 pm or a little later, and kept his appointment.
9. The appellant is a Kurd, who sought asylum in the United Kingdom in 2004 and was granted indefinite leave to remain. In April 2010 he was aged 25 or 26. He was of good character. According to the CCRC reference, he is 1.65m tall. He said at trial and when interviewed by the police that he had never gelled his hair forward or had a fringe, and that he was too bald to have one. He also said that he had never had a full beard with patterns. The officer in the case, DC Kevin Poole, gave evidence at trial that at the time of his interview after arrest the appellant had "a small paper-line beard from ear to ear, with a little growth under his bottom lip, the rest being stubble". A photograph taken on 26 April verifies this description and also shows that his hairline had receded to the top of his head.
10. The appellant denied at trial that he had changed his appearance shortly before he was arrested. He called two witnesses, Mr Jehan Namiq and Mr Hiwa Mohammed, both of whom had known the appellant since about 2007. They said that, as long as they had known the appellant, he had been bald and without a full beard. (Mr Namiq said that he had seen him with two lines cut into the hair on his cheeks, and Mr Mohammed said that he was clean-shaven, albeit sometimes with stubble.) Apparently they were not cross-examined at any length, although it was suggested at least to Mr Namiq that his evidence was driven by loyalty to the appellant.
11. When he summed up the case, the Judge gave the jury proper directions about the need for caution in cases of disputed identification, and carefully reminded the jury of the descriptions of Male 2 given by Mr Rocha and Ms Pereira in their statements and in their evidence. He pointed out weaknesses in their evidence including the fact that they relied on street identifications. He drew attention to what he called "the issue about facial hair" and that Mr Rocha had not mentioned in his statements either the "drawings" in the beard or that, as he thought, by 25 April, Male 2 had changed his appearance by shaving. The Judge similarly dealt with weaknesses in the identification of Ms Pereira. He observed that in the VIPER procedures both witnesses might simply have picked out the man whom they saw in Lincoln Road on 25 April, rather than the robber who was Male 2. Although the grounds of appeal complain that the Judge did not "properly direct the jury that Miss Pereira's identification was not independent of Mr Rocha and that one could not corroborate the other" and that he did not "properly direct the jury that the approach and identification by both witnesses at the scene of [the appellant's] arrest may have tainted the identification process", we consider that on any realistic interpretation of the summing up, these features were made clearly enough.
12. The grounds of the appellant's unsuccessful application for leave to appeal were that the conviction was against the weight of the evidence, that the Judge misdirected the jury in his summing up in referring to the appellant's evidence about going to New Link as "alibi" evidence and giving directions accordingly, and a complaint about the evidence about the VIPER procedures for Mr Rocha's and Ms Pereira's identification of the appellant. Having rejected the second and third more specific complaints, the Court said in its judgment [2011] EWCA Crim 2932 (at para 16) that the Judge "gave a full and thorough direction to the jury about potential weaknesses in the identifying evidence of each witness", and opined that it was "in no way a weak case". Toulson LJ continued:

"There were two identifications by witnesses who had seen the robbers in good light at close range. There were certainly potential weaknesses in that, if the prosecution witnesses are right, the applicant had changed his appearance by shaving. That is not unknown in such circumstances".

13. The Court then rejected an argument that it was not open to the prosecution to suggest that the appellant had changed his appearance before his arrest because the evidence of Mr Namiq and Mr Hiwa was not challenged. The further complaint that the Judge had directed the jury that it was "a matter for [them]" whether they accepted their evidence, was also rejected on the basis that this issue had been sufficiently explored at trial.
14. The CCRC reference and the grounds of the appeal before us present a number of arguments that the conviction was unsafe, but to our mind Ms Sally Hobson, who represented the appellant before us (but not previously), correctly identified the strongest in her oral submissions. It concerns photographs of the appellant taken by the police on 20 June 2005, 31 May 2009 and as recently as 2 February 2010. The photographs had followed his arrested for matters that were not pursued. The photographs were not in evidence at the trial and there is nothing to suggest that either the police (or indeed the appellant's then advisers) were aware of them. There was certainly no question of them having been disclosed. What is, however, clear is that they show the appellant without anything resembling a full beard; he was balding and, by 2009 and 2010, his hairline had receded to the top of his head. He appeared unshaven and with the "pencil line beard" shown in his later photograph of 26 April 2010.
15. Mr Duncan Atkinson, who represented the prosecution before us (but not previously), did not resist us receiving the photographs as new evidence pursuant to the general discretion available to the court under s. 23 of the Criminal Appeal Act, 1968, and we did so. We ought to make it clear that this admission of the evidence is not based on a finding that the prosecution failed in its duty to disclose the photographs in time for the trial. To reach that conclusion would have required an investigation into the accessibility of the photographs to the police officers investigating the robbery who will have learnt (as was the case) that the appellant was of previous good character; this would have required evidence Although the grounds of appeal raised a failure of disclosure and we do not reject the possibility that this argument is well taken, the issue was not pressed in oral argument. Suffice to say that the impact of these photographs is that they potentially meet the suggestion that the appellant changed his appearance, and so refute that answer to criticism on Mr Rocha's identification evidence.
16. The VIPER identification procedures do not provide the prosecution with any convincing response to this. Mr Rocha and Ms Pereira might well have chosen the appellant's photograph because they had seen him on 25 April rather than from their recollection of Male 2's appearance on 23 April. The CCRC also pointed out in their Reference that, although the pro forma documents for the identification procedure, which were disclosed in the proceedings, said that Mr Rocha and Ms Pereira had not previously been shown other photographs, other documents record that, on 23 April, the contrary was the case. This has apparently confirmed by what Mr Rocha told the CCRC. Those other photographs, it seems, did not include one of the appellant, but it seems likely that there was a breach of Code of Practice D to the Police and Criminal Evidence Act, 1984 in that the appellant and his solicitor were not informed that the witnesses had been shown photographs before the VIPER procedure. To our mind, however, any such breach was inconsequential.
17. The question that we must consider, therefore, is whether the fresh evidence (which it was rightly conceded should be admitted) might reasonably have affected the decision of the jury to convict or (which is essentially another way of saying the same thing) whether the fresh evidence raises a reasonable doubt as to the guilt of the appellant: see R v Pendleton, [2001] UKHL 66 per Lord Bingham (at para. 19) and Dial v State of Trinidad and Tobago [2005] 1 WLR 1660 per Lord Brown of Eaton- under-Heywood (to which judgment, Lord Bingham was also a party). To our mind, it is clear that there is: as Toulson LJ recognised, Mr Rocha's description of Male 2 could only be reconciled with the appellant's appearance on arrest if he had changed it by shaving his beard, and it might well be that the jury accepted this explanation. The photographs belie it. Mr Atkinson submitted that, while the photographs might have cast doubt on Mr Rocha's evidence, they were consistent with Ms Pereira's description of Male 2's facial hair. We do not find that point persuasive: the jury were invited by the prosecution to rely on the identification evidence of two witnesses said to be mutually supportive. It is impossible so to dismiss the impact of the photographs on the evidence of one of them.
18. We therefore allow the appeal on the basis that, having admitted as new evidence the earlier photographs of the appellant, the verdict cannot be said to be safe. Having reached a firm conclusion on this point, we deal more shortly with the other points made by the CCRC in their careful reference. Apart from the points about the summing up, to which we have referred and which (like the other constitution of this Court) we reject, they fall into two broad categories: further observations about the identification evidence and criticisms of the police investigation.
19. There are three points in the first category:

i) Tattoos: it is clear from the photograph of 31 May 2009 that the appellant's right arm is heavily tattooed. If the witnesses were right in their evidence that Male 2 was not wearing a jacket but only a short sleeved T-shirt, Ms Pereira's evidence that Male 2 had "no distinguishing features, marks or scars" that she noticed would indicate that he was not the appellant.

ii) Height: if the information about the appellant's height in the CCRC reference is correct, he is 165 cm (or 5'5") in height, considerably taller than Male 2 as described by Mr Rocha.

iii) Speech: Mr Rocha's evidence was that Male 1 said in the cafe that "his brother wanted to speak to him", and that he had said in his statement that Male 2 was Kurdish because he recognised the language that he spoke. Ms Pereira said in her statement, although not in evidence, that Male 1 "possibly" had a Kurdish accent. (In evidence she simply said that Male 1 had said that his brother was outside and wanted to speak to him.) However it appears from the CCRC reference that, when she telephoned the police from the cafe, Ms Pereira had said that she thought that the attackers were Polish; and that Mr Rocha told them that the police had suggested that the robbers were Kurdish. He said that he was unable to distinguished Kurds from Pakistanis. (The CCRC observed, incidentally, that, according to the appellant, he has no brother, only a sister.)

20. On the basis (as we were told) that the 999 call from the café had been disclosed, all these points were available to the defence at trial. As far as we can tell from the material before us, none of them was deployed by the appellant's then representatives, or at least none was emphasised by them. The two points about identification that they stressed were the "beard issue" and the evidence of a fringe. It would therefore be difficult for the appellant now to rely on the points about tattoos, height or speech as independent complaints about the verdict, but they do nothing to lessen our concern that in view of the photographs the identification was not sufficiently robust for the conviction to be safe.
21. The CCRC reference identifies other potential evidence that the police might have obtained. As for evidence directly relating to the robbery itself, apparently there was no relevant CCTV from inside the cafe. CCTV coverage from outside the cafe and of Lincoln Road was not disclosed on the basis that it had no evidential value. The CCRC, however, suggest that it might have been used to trace persons who had been in the area and possibly could have provided information of some significance. They also suggest that more might have been done to identify who was in the cafe when the robbery took place. We are not impressed by these points. In so far as they are directed to criticism of disclosure, we observe that the defence did not make an application under section 8 of the Criminal Procedure and Investigations Act 1996. If the suggestion is that the defence were prevented from finding useful evidence, it is simply speculation and in any case the police and prosecuting authorities were under no obligation to assist the defence trace or identify potential defence witnesses: Brown, [1998] AC 367, 379G per Lord Hope.
22. When interviewed shortly after his arrest, the appellant gave the police the same account of his movements as he gave at trial. He had asked the police to obtain CCTV footage from The New Link in order to establish his appearance and dress on 23 April and, in particular, whether he was wearing the black jeans in which he was arrested (and not light blue jeans such as were said by the prosecution witnesses to have been worn by Male 2). However, the police found that the camera was broken and no CCTV coverage was available.
23. The prosecution relied at trial on the evidence of Mrs Pamela Manning's to challenge the appellant's account that in the afternoon of 23/4/10, shortly after the time of the robbery, he had been to "The New Link" and kept his appointment with Mr Zandi. She said that office records indicated that he had not attended his appointment: his name was not ticked on the relevant form and his name was not entered on their computer system. The CCRC reference suggests that her evidence might have been challenged on the basis that different documents show different spellings of the appellant's name "Mohammed" and this might have led to her searches of the New Link's records being inaccurate or incomplete. This point was available to the defence at the trial and apparently was not taken: we see no reason to think that this was a telling point that the appellant's advisers missed. Mr Zandi did not give evidence: on 9 September 2010, long before the trial, the defence were told that he was reluctant to do so and unwilling to assist in the investigation. This affords no grounds for complaint about the conviction. Further, the CCRC reference shows that the appellant's advisers spoke to Mr Zandi and decided not to call him as a witness because, although he recalled a meeting with the appellant, he did not know when it was. That was an understandable and proper decision.
24. At the end of the hearing on 5 February, we announced our decision to allow the appeal. The prosecution then applied for a re-trial. We refuse that application: the appellant has now served a term of 3 years, and neither justice nor any other public interest demands that he be tried again.