Neutral Citation Number: [2016] EWCA Crim 1907
201505108 C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Thursday 12 October 2016
B e f o r e:
LORD JUSTICE SIMON
MR JUSTICE GREEN
and
HIS HONOUR JUDGE AUBREY QC
( Sitting as a Judge of the Court of Appeal Criminal Division)
R E G I N A
v
AARON ABRAHAM ISAAC
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Miss J Benson appeared on behalf of the Appellant
Mr M Mulgrew appeared on behalf of the Crown
J U D G M E N T (Approved)
LORD JUSTICE SIMON:
1. At about 10.40am on 8 August 2014 Wayne Ingold was collecting his post in the small block of flats where he lived in Bramble Road, Witham. He heard a loud banging on the communal door at the entrance to the flats and opened it. Two men were standing outside. A moment later, one of them shook the contents from what looked like a sports drinking bottle towards the right side of his face. It was acid and he was badly injured by it.
2. There is no doubt that the attack took place, although there was no motive for it, and it appears to have been a case of mistaken identity. The issue at trial, which began on 30 September 2015 in the Crown Court at Chelmsford before His Honour Judge Turner QC and a jury, was whether, as the prosecution alleged, the jury could be sure that the assailants were the appellant, Aaron Isaac, and a co-defendant, Jake McCabe.
3. In verdicts returned on 8 October 2015 the appellant and McCabe were convicted by unanimous verdicts of the charge of applying a corrosive fluid with intent to burn, maim, disfigure or disable, or to do some grievous bodily harm, contrary to section 29 of the Offences against the Person Act 1861.
4. On 6 November 2015, before the same judge, the appellant was sentenced to a term of ten years' detention in a young offender institution, and McCabe, who was a juvenile, was sentenced to six years' detention.
5. The appellant appeals against conviction on a single ground by leave of the single judge.
6. The prosecution case rested on a number of strands which it is convenient to summarise at this stage: first, telephone traffic between the two defendants' phones and another phone identified as the "003" phone; second, the presence of the 003 phone and a Vauxhall Signum car which, it was said, had carried the assailants to the place where the offence took place; thirdly, recorded movements of this car as it travelled in the direction of Witham, a gap in time, and then on its return route; fourthly, a burning eye injury to McCabe which required subsequent attendance at an Accident and Emergency Department on the same day and which the prosecution relied on as proof of his involvement; fifthly, the fact that sometime between July and November 2014 the appellant changed his appearance quite considerably by cutting off his dreadlocks so that when it came to an identification procedure in November 2014 he had short hair; sixthly, McCabe's apparent unexplained absence in the days following the attack; seventhly, hearsay evidence from a witness, Teresa Carlisle, about comments that the appellant had made in February 2015 about throwing acid in someone's fact and getting away with it; and finally, identifications of the assailants made by Wayne Ingold and a neighbour of his, Kate Booker, in February 2015. It is the last of these that gives rise to the grounds of appeal.
7. In summary, it is argued by Ms Benson that the identifications were flawed, that they should have been ruled as inadmissible, and that the admission of this evidence renders the appellant's conviction unsafe.
8. Although the attack took place in August 2014, the appellant was not arrested until November 2014. At this point a photograph was taken, showing him with short hair. It was this image that was used in an identification procedure carried out on 11 November 2014, in which witnesses failed to identify him as one of the assailants. The police later discovered that they had on their files a photograph of him taken in July 2014, shortly before the attack in which he had long hair. Accordingly, they decided to hold a second identification procedure in February 2015, with the witnesses being shown images adjusted to show long hair. At this point both witnesses identified the image of the appellant as one of the assailants.
9. The objection taken to the second procedure at trial was that there was, at the very least, a danger that they were recognising the person whom they had seen with short hair in the November 2014 procedure and not the man they had seen on 8 August 2014, the date of the crime.
10. It was an essential feature of the appellant's case that he was not present and thus not involved in the attack on Wayne Ingold; and that Wayne Ingold and Kate Booker were honest people who took part in a flawed identification procedure and made a mistaken identification.
11. Much of the evidence at trial was not relevant to this issue, and it is unnecessary to refer to it.
12. A taxi driver, Mr Kanesmoorthy, had picked up two men on 8 August 2014 in Mitcham and drove them to Lewisham, where they got out at about 8.04am. McCabe admitted that he was one of the men. Mr Kanesmoorthy described the other as having "braided hair", but on 16 November 2014 he failed to pick out the appellant at an identification procedure as this man.
13. Wayne Ingold told the jury that he lived in Flat 41 of his block of flats in Bramble Road. He was checking his post on the ground floor and could see something through the glazed door. There was kicking and banging and he opened the door. He was asked about Flat 55. He said that it was at the top. At that point someone came from his left holding what like a sports bottle and made a flicking movement towards his face. He felt a terrible burning sensation and suffered burns to his fact, hands, arms and upper torso which required skin grafts. He described two men as involved. The first, whom the prosecution said was the appellant, had asked about Flat 55. He was black or dark skinned, aged late teens or twenties, slim build with shoulder-length braided hair that was distinctive. He was fairly smartly dressed, had no facial hair, tattoo or piercings. He saw the man for about 20 seconds and at a distance of about three feet. An electronic image of the man had been prepared with his assistance on 13 August 2014. He saw the second male for about five to six seconds. He described him as olive skinned, possibly Turkish, possibly Eastern European.
14. At the identification procedure on 11 November 2014, using short-haired images, Mr Ingold had identified picture 9 as the black male (not the appellant). He said, "It's very hard. The guy had hair down to his shoulders".
15. At the second procedure on 22 February 2014 he picked out picture 8, which showed the appellant with long hair. As we have noted, by this stage long hair had been added to all the images of the people that he saw.
16. Kate Booker gave evidence that at about 10am or 10.30am she had looked out of her living room window and noticed an unusual blue-grey car. She saw two people get out, one from the front and one from the back. The car then moved off. She described the first male as black, in his twenties, about six feet tall, wearing dark clothing, very baggy, carrying a plastic bag around a bottle or can. The second male was taller with hair piled up on top of his head, dangly and very thin, dreadlocks piled on top, different colours. He looked as if he had freckles. His skin was lighter than the first male, although he had black features. He was about the same age as the first man and wore combat trousers and a hooded top.
17. At the first identification procedure on 11 November 2014 Miss Booker identified McCabe, although she found the procedure difficult. She thought that he was the one with the dreadlocks, although the hair was different in the pictures. She said that she found it very difficult because they were not images of people standing up. She had initially thought that she was looking for two people rather than one. She is recorded as saying, "I'm not convinced, because I didn't see him as well as I saw the other man". She did not identify the appellant.
18. In a second procedure on 22 February 2015 the images had artificially-added hair. She eventually chose picture number 7. She said, "I think it's number 7", having narrowed her choice from 2, 5 and 7, although she stated that she was not one hundred per cent sure. Image number 7 was an image of the appellant.
19. There was other evidence from Rosemary Frimpton of Merton Youth Service who gave evidence of contact with McCabe via a number that he had given her. On 8 August he told her that he would not be attending a session because he felt unwell. On 12 August he told her that he had been to hospital on 8 August because he had hurt himself with a friend. She had visited him the following day and saw injuries to his left eye that looked like burns or scratches. Whatever it was, it was common ground that he had been treated for it at an Accident and Emergency Department. He had told her that he had been playing in Phipps Park and got hurt. On 2 September Miss Frimpton reported him missing when he failed to keep contact. When she finally spoke to him on 17 September, he told her that he had been busy and unable to make contact.
20. Teresa Carlisle gave evidence that on 8 February 2015 (six months after the attack on Wayne Ingold), the appellant, whom she knew as Kid Horty, threatened her, saying that she had best move on because he could do what he wanted, that she was getting on his nerves, and that he had thrown acid in someone's face before and got away with it. The defence accused her of lying about this, to do him down, because he was part of a local group to whom she objected. She denied that accusation. She was positive that this had happened. She was scared. She was not there to get him into trouble; she was there to tell the truth.
21. A police support employee, Paul Jones, gave evidence about his investigation into three mobile phones, a "393" number (McCabe's, as was admitted), a "3705" (attributed to the appellant), and a "003" number (attributed to another man).
22. Another police support employee, Gillian Powell, prepared a timeline setting out the apparent contacts between the various phones and the various locations of those phones at particular times.
23. Neither the appellant nor McCabe had answered questions in interview, but both gave evidence in their defence. The appellant said that he could not recall where he had been on 8 August 2014. He could not remember being at a party attended by McCabe the night before. He knew McCabe, but did not "hang out" or mix with him socially. His "3705" phone had been stolen at the beginning of August by someone to whom he owed money for cannabis and whom he refused to name. He denied that he had disposed of it himself. His hair had been short in August because he had had it cut in July for a funeral. Before then it had been plaited. He denied that he had changed his hair after 8 August to alter his appearance and make identification more difficult. He agreed that he had argued with Teresa Carlisle, but denied having said anything to her about acid being thrown. She had lied about that to get at him. The incident involving Wayne Ingold was common knowledge in the area. While he agreed that the physical description matched him in a number of respects, he also pointed out that there were discrepancies.
24. Tracey Wallace gave evidence that Teresa Carlisle was lying about the threat so that she could move from her flat. It is not clear to us on what basis her evidence was admitted, since it appears to have been opinion evidence with very little factual basis.
25. The appellant's brother, Cassium Isaac, gave evidence of the theft of the appellant's "3705" phone and of the attempts to retrieve it from the person who had taken it.
26. The co-defendant, Jake McCabe, gave evidence that the appellant was not part of his group, although they got on in a civil way. He had been to a party on the evening before 8 August. The appellant had left at about 1am, but he had stayed up all night and wanted to replenish his cannabis supply the following morning. Someone had booked a cab using his phone. He got into the cab with someone whom he could not recall since he was too drunk. This other person was not the appellant, although he acknowledged that his Defence Statement recorded that the appellant had been in the cab. He said that he did not remember the journey and did not see the appellant at all that day. He had obtained the cannabis and then received a call from someone wanting to buy from him. He had cycled to New Cross Road, where he saw a car parked. Three boys jumped out and one, whom he did not recognise, approached him. This person had thrown something into his face, catching his eye and nose. He did not want the police involved, since he had been attacked before. He was worried about his sight. When an ambulance did not arrive, he made his own way to hospital. He had not told the staff what had happened and had invented a story about an accident in the park. He denied being in telephone contact with the appellant.
27. Having heard the evidence and following the judge's summing-up, the jury returned guilty verdicts against both the appellant and McCabe.
28. It is convenient at this point to return to the application to exclude the evidence of identification made by Wayne Ingold and Kate Booker in February 2015. A voire dire was held at the start of the trial; and the judge watched the DVD recordings of the November and February procedures, including the November procedure when Kate Booker identified Jake McCabe, as has this court. The judge gave his ruling on 30 September 2015. He noted that both defendants challenged these identifications. He recorded that a second identification procedure had been held on 22 February 2015 as a result of the discovery of an earlier photograph of the appellant which was said to represent his appearance nearer the time of the incident. No objection was or could be taken to the fact of a further identification procedure, and there was no suggestion that the Code of Practice prevented this. The defence had questions whether there might have been a breach of the written notes for guidance at Code D3(b): see Archbold Supplement (at page 268), but the focus of the defence submission was on section 78 of the Police and Criminal Evidence Act 1984. It was argued that there was a fundamental unfairness in that the only photograph that Kate Booker saw twice (albeit with significantly different hairstyles) was that of the appellant. It was submitted that the consequence of this was that there was a very real danger that it was not the identification of someone seen on the day of the offence in August 2014, but the recognition of someone seen in the previous identification procedure in November 2014. The judge recorded the submission that Kate Booker had said as much in conversation with the identification officer in February 2015. The judge also noted the submission that this was not a problem that could be resolved by cross-examination, and that the identifications ought to be excluded. The judge recorded the prosecution submission that these points were relevant to the weight to be attached to the evidence and were capable of reasonable exploration at trial, but were not good reasons for excluding the evidence from the jury's considerations.
29. The judge, having heard the argument, indicated that a DVD recording of each of the identifications of each witness and transcripts were available to the jury which showed the identification procedures. The defence points were points which could be canvassed on the basis of good quality recordings and transcripts. The jury was entitled to, and capable of, evaluating any inconsistency between the procedures, factoring in all they had learned about the appellant's change in appearance. The application was consequently refused.
30. In the written grounds of appeal and in oral argument Ms Benson developed the submissions made before the judge. She submitted that the judge erred in law in admitting the evidence of the identification of the appellant at the identification procedures in February 2015 by Wayne Ingold and Kate Booker. In each case following these identifications the officer asked: "Have you been shown or seen any broadcast or published film, photographs or descriptions of suspects relating to the offence?" Each answered: "No". This went to the heart of the complaint, because they had previously seen images of the appellant in the November process, and no one else. When it came to February it was not possible to know whether they had identified the image of the appellant as a result of seeing him at the time of the offence, or at the time of the November identification procedure. His was the only image shown in both procedures to the witness. Whereas the November image had been looked at and studied by these witnesses for a considerable time, Ms Benson makes the point in oral argument that the time during which they had seen the assailants had been a matter of seconds only. She argues that the judge's view that the matter could be investigated in cross-examination was no answer to this problem, since the witness might be genuinely mistaken as to whether they were identifying someone seen at the time of the offence or at the subsequent identification procedure.
31. In our view, the starting point for consideration of this issue is section 78(1) of the Police and Criminal Evidence Act 1984, which provides:
"In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."
32. There are two issues for the court to consider: the circumstances in which the evidence was obtained; and the extent to which the admission of the evidence impacts on the fairness of proceedings.
33. As to the first issue, the judge and the jury were both able to review the circumstances of the November 2014 procedure and to observe the concerns that the witnesses expressed, that they were not comparing like with like. The person they had seen had long hair, and the images that they were being shown had short hair. The circumstances in which the February 2015 evidence was obtained are also clear. The police had obtained in July 2014 an image of the appellant with dreadlocks. They now wished to show the witnesses images which showed that appearance at the time of the offence, to see if they could identify the appellant as one of the assailants.
34. We do not wish to be taken as accepting that the police are entitled to try again, when an initial procedure has not yielded the results they wish. But here there was plainly a proper basis on which they could conclude that the appellant had deliberately changed his appearance in order to thwart an identification. In these circumstances there was, in our view, no unfairness in the process by which the February 2015 identification evidence was obtained.
35. The second issue is whether the admission of the evidence, nevertheless, had such an adverse effect on the fairness of the proceedings that the evidence should not have been admitted. On this issue we agree with the conclusions of the trial judge. It was for the jury to decide what weight should be given to the February identifications in the light of the points made by the defence, which could be explored in the trial as part of the trial process. We accept that it would not have been easy for the defence to investigate with witnesses the point that in identifying the appellant in the February identification they may have recognised a face they had seen in the November procedure, rather than the face of the assailant that they had seen in August. However, the point was a matter of comment and in any event, (as is not uncommon in criminal trials) such comments could be framed as questions as much for the consideration of the jury as for the witness.
36. There were good quality recordings and available written records of the identification procedures which enabled the jury to form their own view of the reliability of the identifications; and in his summing-up the judge highlighted the "difficulties with the identification evidence". This included the qualifications in Kate Booker's identification. At page 10D-G the judge added this:
"Now, a word about identification. The case against the defendants, against both of them, depends, to a large degree, on the correctness of one or more identifications made by Mr Ingold himself and by Kate Booker and I will remind you carefully of the details of what they said at that time, said to police in their statements and then subsequently said during the identification processes and, unusually in this case, you have actually seen two of the processes with your own eyes and you have helpful and agreed transcripts of what was said and it is clear, as the defence have said in this case, that there is quite an agonising process going on and there are, without doubt, a number of potential or actual flaws in relation to that process and I will remind you of those when I get to that aspect of the evidence. So you always, and especially in a case like this, need to be careful about identification matters."
Later in the summing-up the judge took the jury through the detail of the two sets of identifications by the two witnesses (summing-up pages 22E-28G). Quite rightly, there is no criticism of the judge's summing-up either on the law or the evidence on this point, nor of the direction of law about the care which needs to be given where the prosecution relies on identification evidence - the Turnbull direction given at pages 11A-12A in the summing-up, again reminding them of "weaknesses in this identification process".
37. In our view, the identification evidence was part of a strong prosecution case against the appellant, as we have outlined at the start of this judgment. Nor, when it came to it, was his case assisted by the evidence of his co-defendant McCabe.
38. In conclusion, we are satisfied that the conviction is safe. Accordingly, the appeal will be dismissed.
