England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		12 February 2016

1. LADY JUSTICE RAFFERTY: Edward Daniel Harty, 30, on 18th May 2015 in the Crown Court sitting at Leicester was convicted of attempted robbery and sentenced to five years' imprisonment. By leave of the single judge he challenges the safety of his conviction.
2. Nadezbeda Georgieva as she parked her car near her home at about 1.45 am on 15th June 2014 noticed a young man look right into her car and then walk away. As she moved toward her home he shouted at her and hurried toward her from behind. She speeded up but he shouted for her to stop and said he knew to which house she was going. She shouted at him to leave her alone and turned to face him. He said he wanted her bag. She crossed her arms to protect it. He grabbed her but she fell to the ground. She screamed loudly and as others, including her husband, came out, he let go of the bag and ran, swearing.
3. She described him as white, about six foot two with light blue or light green eyes, light pushed-back hair, a typical English voice, wearing shorts and a sleeveless hooded top. Next day she emailed police and said he was high (by which she meant tall), blond, muscular and 22 to 24. She did not go further, she explained, because her intention was simply to alert the police. She had had little sleep and had to go to work. As time went by she remembered more. She had not, she said, changed her account as a consequence of being shown a photograph shown to her the next day by Mr Miah, a neighbour, who had it on his mobile and asked her: "Is that your attacker?" She said she immediately recognised her attacker and Mr Miah told her the individual's name. On 18th June she showed police the photograph. As advised she did not look at it again, she told the court. Two weeks later at an identification procedure she identified the appellant.
4. She described the incident as having been in the dark, but street lights were on and light shone from her home which had large windows. It was a warm, clear summer night. She had been face to face with the attacker.
5. In a second witness statement she explained she had not seen a photograph but by that she told the jury she intended to convey that she had not seen a photograph on the day of the identification procedure. She said she had hardly looked at it prior to showing it to the police.
6. Her husband Dimitar Zalatskov saw his wife on the ground and heard her screaming loudly, facing her a young boy trying to take her bag. Mr Zalatskov tried to take hold of the attacker who ran away, stopped some 500 metres down the road and laughed. He said something Mr Zalatskov did not understand. He was white, English, in white shorts and a navy jacket, one metre 80 or 90 tall and of athletic build, perhaps wearing a white cap. Mr Zalatskov had seen his face for a few seconds and identified the appellant at a later procedure. He told the jury he had not been shown the photograph. He had seen the man before the incident standing with two others when Mr Zalatskov parked his car. He tried to warned his wife who had not answered her telephone. He was confident one of those men had been the attacker. It had not been dark. The street was well lit.
7. On 18th June he was with his wife when she made a statement. She had not told him, he said, of her conversation with Mr Miah, she did not show him the photograph and no one showed it to him before the identification procedure. Husband and wife, he said, spoke separately to the police. That was confirmed by DC Van Der Velde who on 18th June took their statements separately.
8. The victim showed to him on her mobile a photograph which he printed and she supplied to him a name.
9. To a colleague of the officer the appellant said he had been with his girlfriend in a public house and a park. He invited the officers to check CCTV images, but none was available. His alibi was investigated but there was nothing to be advanced in respect of it.
10. Agreed facts included that at about 1 o'clock in the afternoon on 15th June, during a disagreement Mr Miah became aware of the appellant's name and then found the appellant's Facebook profile and an image of him. Mr Miah learned that someone had attempted to rob the victim and showed her the picture from Facebook.
11. The appellant told the jury that on 14th June at his sister's address he watched the first half of an international, kick off at 11 pm. His girlfriend had been asleep and he went out without telling her. He had intended to return for the second half, but had gone to a public house instead, some five to seven minutes walk from his sister's. He there watched the match and chatted to a friend, leaving at about quarter to one in the morning. He got home at about one, his girlfriend still asleep. He said he slept on the sofa. Consequently, he was there asleep and not present at the attempted robbery. He reminded the jury that he had asked the police to obtain CCTV footage. He dealt with a previous conviction for robbery 13 years previously when he had been 15. He explained that on previous occasions, of which there had been several, when accused of crime he had always pleaded guilty. Released from custody in 2013, he told the jury, he had decided to get his life back on track. He described the attack as vicious and cowardly, as, he was obliged to confirm, were his previous convictions, all directed at lone individuals. His sister, his friend from the public house and his girlfriend did not give evidence. The appellant explained that it would have been difficult for his girlfriend to give evidence of his alibi since his case was she was asleep.
12. The Crown sought to lead evidence of his bad character. He had a conviction for robbery in 2002, for a section 4 Public Order Act offence in 2003, a section 5 Public Order Act offence in 2003, possession of a knife in 2008, for assault in 2009 and again in 2009 for section 18 (grievous bodily harm) Offences Against the Person Act 1861. The attempted robbery was an attack on a lone woman which ended when her husband and neighbours appeared.
13. The judge said he had carefully considered any relevant authorities. Robbery was an offence of dishonesty and of violence. The appellant had been before the courts on a number of occasions for violence, including for section 18 for which the term of imprisonment had been seven years. He had on that occasion been caught on CCTV committing the offence and in the instant case had challenged the police to produce such footage. The previous convictions were admissible and would not cause unfairness. It was a strong case, not one where their admission would merely bolster the case for the Crown.
14. Grounds of appeal fall into two parts. First, it is suggested the judge failed properly to direct the jury as to the identification evidence by failing to set out the weaknesses, to highlight the effect on an individual shown a photograph and prompted to make a possible identification, to point out the discrepancies between first description and subsequent identification and to highlight the differences between the victim's description and that of the witness. The judge is said to have failed to list points which militated against an accurate identification and to comment on the likelihood of a witness having seen or accessed a photograph of the appellant.
15. The second ground as to bad character suggests that the judge failed properly to direct the jury in that he referred to the appellant having a propensity to be untruthful; he failed to direct the jury to take into account what the appellant said about it and failed to direct the jury that if it accepted the propensity evidence it could consider it alongside other evidence.
16. Dealing with identification, the judge said:

i. "The case depends on visual identification. You must carefully examine the evidence. A witness convinced in his own mind may be wrong. A convincing witness or witnesses may be wrong. You must consider the quality of each of the identifications by the witnesses separately.

ii. However, as long as you are alive to the risk of mistaken identification, you are entitled to use one witness' evidence of identification, if you are sure that it is correct, as potential support for the other. So, in other words, you look at the evidence of identification: Are you sure about the evidence?

iii. Do you think that the person, although sounds convincing, may be mistaken? Are both witnesses mistaken? Because they can be. And so you look at all that very carefully and once you are attuned to the fact that there are factors to be looked at, if you are satisfied that A got it right then you can use that fact to support the identification made by B. All right?

iv. You must examine the surrounding circumstances of the evidence of identification, such as the duration of the period during which the witness or witnesses had the person she or he says was the defendant under observation. In particular, for how long was a witness able to see the person's face; the distance between the witness and the person observed; the lighting; whether the witness had ever seen the person who he or she says he was observing before and, if so, in what circumstances -- ie whether the witness had any reason to be able to recognise the defendant -- the length of time between the original observation -- ie the time of the incident -- and the identification by the witness of the defendant to the police, whether there is any significant difference between the description the witnesses gave to the police in the appearance of the defendant and the fact that the incident was unexpected, fast-moving, shocking.

v. All these factors you have to take on board. Okay? But it doesn't mean that you get frightened off. You take these as factors that you have to consider.

vi. The defence say, amongst other things, that the identification by both witnesses is wrongful. They point to the shortcomings in terms of the circumstances; timing, lighting and so forth. They point to the variations in the description.

vii. They say, as far as the female witness is concerned, she was shown a picture of the defendant by the neighbour who asked her, 'Is this your attacker?' and she said, 'Yes'. She went on to identify the defendant, having seen that, rather than identifying the real attacker. They say the value of the normal identification procedure is lost as a result.

viii. The defence say the male witness must have colluded with the female and seen the photograph as well and then went on to identify the defendant. The defence say, by implication, that both witnesses have lied when they say to you they did not collude, [the witness] saying that she did not show her husband the photographic image and when he says his wife had not shown him the image and he had not seen any image.

ix. Alternatively, they say the female may be telling the truth but the male has, on his own folly, gone to Facebook and looked up the defendant after hearing the name being given to the policeman. All right?

x. The prosecution say, amongst other things, that despite the caution that has to be exercised, this is a case where you can rely on the identification. Both witnesses are honest and reliable. The male witness has said, and you can believe him when he says, he never saw any Facebook photograph of the defendant and he identified the assailant.

xi. They say the female immediately recognised the attacker when the neighbour showed her the photograph and gave her the name of the defendant. She did not dwell on it, did not even download the photographic image.

xii. When she spoke to the police and gave the name and went to the Facebook page, the police printed the image and she followed the advice to not look at it again before the identification procedure. The witnesses have not colluded in any way at all. The descriptions, of course vary, as it is only human to do so.

xiii. Finally they say, 'What a coincidence that of all of the potential people that could have been picked out, both the witnesses picked out, in the procedure, the defendant who happens to be in the same area that they lived in'."

17. As to bad character, the judge said simply:

i. "You have heard that the defendant has previous convictions and the details of them. You have heard about them because the prosecution say this is a man who you cannot believe. He has a propensity to behave in a violent manner. He has attacked the character of the prosecution witnesses to say they have colluded about the Facebook photograph before going to the identification procedure and are lying about it to you.

ii. The defence say he has, in the past, committed offences and pleaded guilty whenever he was guilty. His previous robbery is from when he was 14 years of age and with others and now he is a reformed character. He has not committed this offence.

iii. What you make of his previous convictions is, ultimately, a matter for you. What you can't do is to say that because he has got previous convictions he must be guilty of this offence as well. You cannot put an overemphasis on his previous convictions. The previous convictions are a part of the evidence and if you think it helps you in your assessment of the case then you are entitled to use that as evidence."

18. Mr White for the Crown has underlined how clear was the evidence as it emerged before the jury. He submits that it is certain the jury understood and could interpret it.
19. That may well be right, but there are difficulties in the Crown's way, as Mr White sensibly conceded. It is one thing for the evidence to emerge clearly before a jury and another for a summing-up to direct the jury on its approach to it.
20. In cases of identification the clarion call for the jury is especial caution because of mistakes in the past. The summing-up, which we have been careful to recite verbatim where relevant, did not convey that message. The familiar Turnbull direction requires a jury to hear that two witnesses can be mistaken. The judge should also highlight the discrepancies between first description and the appearance of the defendant. That is absent from this summing-up. The judge supplied to the jury in writing his direction on identification, which he then recited into his summing-up, but that was the sum of the help he offered. What the summing-up required was a fleshing out of how the jury should approach its task and a fleshing out tailored to these facts. That was the point at which highlighting weaknesses would sensibly have sat.
21. Those deficiencies, sad to say, go to the core of the identification evidence risks so clearly underlined so often by this court over the years.
22. .
23. It has not been necessary for us to consider the bad character ruling or the dialogue that led to it. But we add this. It was the judge who posed the question of whether the evidence should be admitted to show a propensity to attack women in the street and/or because of the attack by the appellant during the trial on the truthfulness of the witnesses for the Crown. He did not answer his own rhetoric question and consequently failed to identify the gateway or gateways justifying admission. Once again we have read verbatim the relevant part of the summing-up. Missing from it was a clear direction to the jury to ask itself whether the convictions demonstrated a propensity to rob. It would be difficult to resist the conclusion that the appellant had a propensity to be violent. The difficulty created by the terseness of the direction is that the appellant answered an allegation of attempted robbery and his only conviction for the choate offence (robbery) was 13 years earlier.
24. The direction also introduced propensity to untruthfulness. The Crown had not relied upon that in its application, unsurprisingly. The summing-up should have reminded the jury, when it dealt with propensity to untruthfulness, that the appellant had attacked the character of the Crown's witnesses with the consequence that the jury was entitled to consider his credibility. It was also silent on how, if at all, the jury should approach the appellant's previous convictions when they had been preceded by a plea of guilty.
25. In our judgment either of the grounds is sufficient to call into question the safety of the conviction, but taken together their effect is the more powerful.
26. We allow the appeal and quash the conviction for attempted robbery. We direct a fresh indictment be served, that the appellant be re-arraigned within two months of today, that he be held in custody and that the venue for the retrial determined by the Presiding Judge of the Midland circuit.