England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		20 December 2016

1. LORD JUSTICE SIMON: On 8 April 2016, following a trial before Mr Recorder Boothby and a jury at Peterborough Crown Court, the appellant was convicted of an offence of wounding with intent to cause grievous bodily harm contrary to section 18 of the Offences Against the Person Act 1861. He had previously pleaded guilty to two charges of possession of Class A drugs with intent to supply and a further charge of handling stolen goods. On 18 May he was sentenced to a term of 4 years' imprisonment on the wounding charge with which this appeal is concerned, and consecutive sentences totalling 2 years for the other offences. He appeals against his conviction with the leave of the single judge.
2. The appellant was a drug dealer and the complainant, Kathryn Watkins, was a drug user. The appellant provided both Ms Watkins and her partner, a man named David Kinlan, with Class A drugs. The appellant had lived at Ms Watkins' address for six weeks until she had asked him to leave towards the end of June 2015.
3. At about 8.50 pm on 10 August 2015 she was walking with Mr Kinlan in Peterborough when she noticed a man loitering close by. She ran away and was chased by him. At some point she fell and was stabbed twice. She was taken to hospital and required stitches for a 1-centimetre wound to her lower left back and a 2-centimetre wound to her left buttock. She told the police at the hospital that she did not know who had stabbed her. A few days later, she contacted the police to make an appointment but did not keep it. However, coincidentally, the police went to her home on 16 August looking for the appellant. They showed her a picture of him and she said, "That's the person who stabbed me." This was the first time she had named the appellant as her attacker.
4. The appellant was arrested and interviewed on 22 October. He accepted that he knew Ms Watkins but did not recollect knowing Mr Kinlan. When asked about the stabbing of Ms Watkins he gave "no comment" answers and refused to participate in an identification procedure, since he said Ms Watkins would pick him out. A VIPER identification procedure was conducted on 4 November and Ms Watkins identified the appellant as the man who had stabbed her on 10 August.
5. The prosecution case was that the appellant and Ms Watkins had parted on poor terms when he left her home, and that he was the man who had stabbed her. The prosecution relied on the evidence of Ms Watkins and her identification of the appellant as the man who attacked her; the appellant's previous convictions, which were admitted on the basis that he had attacked Ms Watkins' character; his failure to mention facts in interview later relied on; and the evidence of Mr Kinlan, the nature of which was equivocal and the manner of giving it characterised by the recorder in a way which founds one of the grounds of appeal.
6. It was the defence case that the appellant had not been in Peterborough at the time of the attack and that Ms Watkins had maliciously misidentified him as her attacker. The defence relied on the appellant's evidence to the jury, Ms Watkins' antecedent history associated with her addiction to drugs, and the fact that she failed immediately to name the appellant, a man she was later to say she knew as her attacker. The main issue for the jury was whether they were sure that it was the appellant who had stabbed Ms Watkins thereby wounding her.
7. Kathryn Watkins gave evidence that about one and a half months before the attack the appellant had lived at her address for about six weeks. He had moved a girl into her home without her permission and had refused to leave when she had asked him to. She had managed to evict him with the help of friends and there had been resulting tension between them. On 10 August 2015 she had been at home with her partner, David Kinlan, with whom she lived. Mr Kinlan, who had himself been to prison, was controlling and threatening and she had had a panic button installed at her address as a consequence. She had left home with Kinlan at about 8.30 pm to visit a friend. It had been starting to get dark but there was still some light.
8. They had cut across a grassed area behind a Jobcentre when Kinlan had spotted a suspicious-looking man and told her to run. She had seen a person who appeared to be hiding behind a sign. She did not know who it was as he was too far away, but began to run. At some point she had looked back and seen the appellant chasing her. He was no more than 6 or 7 feet away. She had been able to see his face and had instantly recognised him as they had spent a lot of time together. She had looked around again and seen him before she had tripped and fallen on all fours, at which point she had been stabbed twice. When she got up, the appellant had gone past her.
9. She had also seen a man riding a bicycle about 12 feet away, although he did not ever get any closer. She recognised this man as someone she knew as "Littles", a friend of the appellant's. She had run away as fast as she could and then noticed blood spraying from her left buttock and realised that she had been stabbed. A taxi driver stopped and called an ambulance. At this point Kinlan had joined her. While they waited for the ambulance he had told her not to grass and not to ruin his reputation.
10. She accepted that she had lied to the police at the hospital when she said that she did not know who had stabbed her. She had lied because Kinlan had told her to and she had been scared of repercussions. After she was discharged from hospital she returned home with him and Kinlan had repeated that she should not grass. A few days later she had spoken to a friend and decided to tell the police who had stabbed her.
11. She was cross-examined about this account. She accepted that she was a Class A drug user and had been drinking a can of Polish beer just before the incident. This had been her first drink of the day and she had drunk a quarter of a can. It had been starting to get dark. She accepted that she had been frightened and that the incident had been of short duration. She had quickly glanced back several times at the man who was chasing her and had recognised the appellant. She had been facing downwards when she fell and had not seen the actual stabbing and the appellant had run away quickly. She had not seen him from the back.
12. She had not, she said, been mistaken in her recognition, nor had she deliberately misidentified the appellant as her attacker after being shown his picture by the police. When she had seen the appellant he had been wearing a "covered jacket thing that he always wore". It had a hood but his face had been clear the whole time. This was later referred to as a "hooded puffer jacket". She agreed that she had not told the taxi driver that it was the appellant who had attacked her, and she accepted that, at the time she had spoken to the taxi driver, Kinlan had not yet warned her not to grass.
13. David Kinlan gave evidence that he had seen Ms Watkins being chased by two people and had seen the attack. He had been about 30 yards away at the time and had not clearly seen what had happened. He had not discussed with her whether she should speak to the police or not. In cross-examination, he accepted that he knew the appellant and would have likely recognised him if he had been the attacker. Towards the end of his evidence, the recorder asked him if he believed that it was wrong to "grass on people". The witness laughed and said, "I can't answer that question," and later, "I don't like to answer that question. No."
14. The appellant gave evidence in his defence. He told the jury that he knew Ms Watkins well as he had stayed with her. She had given him an hour to leave the address and he may have taken longer to leave than that. This had been the only issue between them. He may have been in Slough on the day of attack, but was certainly not in Peterborough. He had been evasive in interview because he had been taken aback by the allegation.
15. That, in broad terms, was the evidence before the jury.
16. The recorder summed up the case, and the first ground of appeal relates to his summing-up of how the jury should approach the evidence of Ms Watkins that she had recognised the appellant as her assailant. We should say at once that, even allowing for this being a short trial, the recorder's summing-up was marked with an informality of manner and a lack of clear structure which would not have helped the jury. This is illustrated by his failure, at least initially, to direct the jury accurately as to the burden of proof. The recorder misspoke in a way he would not if he had written out his directions for the jury. We note, however, that Mr Shaw, who was not trial counsel but who appears on this appeal on behalf of the appellant, does not pursue this complaint. In our view, he was right not to do so, since the recorder corrected himself when he returned to the burden and standard of proof shortly thereafter and gave a proper direction in relation to both.
17. Mr Shaw is, however, critical of the summing-up in relation to the Turnbull direction: see R v Turnbull [1977] QB 224. This is a direction which must be given in a case where the prosecution relies wholly or substantially on evidence of identification or recognition, as this case was. Mr Shaw submitted that the jury needed to be directed on a number of specific matters. First, of the special need for caution before convicting on the basis of the evidence of recognition; secondly, the reason for this, that people have been wrongly convicted in the past on the basis of this type of evidence; thirdly, that a convincing witness can be a mistaken witness; and fourthly, of the circumstances in which the witness purported to recognise her assailant, as matters which went to the reliability of her identifying him as someone she knew.
18. As to this last point, Mr Shaw pointed out that in the present case it was an unexpected attack. Ms Watkins had not recognised the assailant before she had started to run. She had glanced at her assailant at a time when it was getting dark and had not seen his face as he made off. In any event, her evidence amounted to a few fleeting glances over a relatively short time, in doubtful light, and a recognition of someone whom she had not seen recently and who was wearing a hood when she saw him. Mr Shaw's complaint is that some of these material matters were mentioned but not others, and some of those that were mentioned were given a gloss by the recorder which undermined the full and necessary force of the Turnbull direction.
19. We have looked carefully at this part of the summing-up with these points in mind. The recorder began by introducing the direction as if it were a matter of common sense and repeated the reference to common sense later in the course of this part of the summing-up. However, he also (1) warned the jury twice of the need for caution about Ms Watkins' evidence ("You must be careful about what Ms Watkins is saying" and later "Be careful because mistakes are made"); (2) he directed them that people had made some extraordinary mistakes when it comes to recognising people, including "astonishing mistakes" in relation to people who are well known; (3) he directed them about the care they needed to take about the circumstances in which she came to recognise the appellant as her attacker, the distance he was from her, the lighting at the time, the circumstances (she was running away and was very frightened) and that she had been drinking. He did not specifically direct the jury that a convincing witness can be a mistaken witness.
20. For the Crown, Mr Pearson submitted that these directions were sufficient. He submitted on the basis of R v Nash [2004] EWCA Crim 2696 that the precise form of the Turnbull direction is less important as long as the full force of the direction is given, and that the summing-up must be tailored to the facts of the case and be expressed in a way which most assists the jury. He observed that in R v H (Buick Wildcat) [2008] EWCA Crim 3321 the judge had omitted giving as the reason for the need for caution in relying on identification evidence that miscarriages of justice had occurred. The court held at paragraph 26 that the direction was sufficient in that case, although it would have been better to state in terms the reasons for special caution.
21. He also submitted that in the Privy Council case of France and Vassell v The Queen [2013] Crim LR 237, the importance of the full sense and spirit of the Turnbull direction being given was emphasised. In that case, the judge did not refer to the fact that a mistaken witness might be a convincing witness, and this was not held to amount to an error sufficient to render the conviction unsafe. Mr Pearson pointed out that either of these two omissions, if thought to be material, could and should have been drawn to the recorder's attention at the conclusion of the summing-up so that he could put them right.
22. We have considered these submissions. The recorder in the present case did not avail himself of the Crown Court Compendium, which gives guidance how to direct a jury in cases where identification or recognition is in issue. If he had done so, and if he had given careful thought about the structure of the Turnbull direction, the points relied upon by Mr Shaw would not have arisen, and nothing we say in this judgment should be regarded as anything other than an encouragement to use the published guidance on the Turnbull direction adapted to the facts of the particular case. In our view, the summing-up was deficient in failing to point out that even honest witnesses may be mistaken about recognising someone, and in suggesting that the risks of misidentification should be regarded as a matter of common sense. On the other hand, as we have noted, the recorder warned the jury twice to be careful about the recognition evidence, and that "extraordinary mistakes" can be made when it comes to recognising people. He also warned them that they needed carefully to consider the circumstances in which Ms Watkins came to recognise her assailant, and set out those circumstances.
23. In our view, this part of the summing-up read as a whole exposed the jury to the full force of the dangers which the Turnbull direction seeks to address. We should add that Mr Shaw was critical of the recorder referring to the fact that Ms Watkins, according to her, knew the appellant as well as any two people know each other and had no difficulty recognising him. We see no objection to this observation. The appellant had agreed that he knew her well and the recorder was describing her evidence about her knowing him. This took place before the warning that he gave subsequently about recognition evidence.
24. This was the recognition of someone she saw on more than one occasion at close range. It was someone who was chasing her and it was someone she had cause to know well. For these reasons, we reject the first ground of appeal.
25. The second ground is founded on the recorder's observation about Kinlan's evidence:

"He seems to be a subscriber to the philosophy of the street, never grass to the police, so he's not really been much help one way or the other. I would just ignore Kinlan, he's no help to us at all".

In our view, this observation should not have been expressed in the emphatic and peremptory manner that it was. Although it may have been justified, it was for the jury to weigh his evidence and not for the recorder to direct them to ignore it. However, he had told the jury that the facts were their province and it was their view about the evidence that was important.

26. Thirdly, it is argued that the recorder was wrong to tell the jury that Ms Watkins had given "a good reason" for the delay in her identification of the appellant to the police. The complaint here is about the word "good": she had certainly given a reason for the delay and had been challenged about it; whether the reason for the delay was a good one was a matter for the jury. The reason was good if they accepted Ms Watkins' evidence, which they plainly did.
27. Like the single judge, we are not persuaded that this amounted to a misdirection.
28. In our view, Mr Shaw has identified errors in the summing-up which should not have occurred and which in the case of the Turnbull direction could have been avoided if more care had been taken. We are not, however, persuaded that the errors were such as to render the conviction unsafe, whether taken individually or cumulatively.
29. Accordingly, the appeal must be dismissed.