Gray, R v [2003] EWCA Crim 1001

Case No 2002/2459/X3

[2003] EWCA Crim 1001

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday, 27 March 2003

Strand

London, WC2

B E F O R E:

LORD JUSTICE TUCKEY

MR JUSTICE MITTING

SIR BRIAN SMEDLEY

Between

R E G I N ACrown

-v-

Between

PAUL EDWARD GRAY

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MR P WILCOCK appeared for APPELLANT

MR T FORSTER appeared for CROWN

J U D G M E N T

[1]MR JUSTICE MITTING: On 26th February 1997 at about 1.30 pm, an armed robbery took place at Lloyds Bank, Nelson Road, Greenwich. The robber wore a Balaclava helmet, initially rolled up into a woolly hat which revealed his facial features below his hairline. He produced a yellow bag at the counter and demanded that it be filled up. He pulled down his Balaclava to form a mask and pointed a gun at the cashiers. They handed over £2,100 in notes marked with dye. He left the bank with the money in the yellow bag and got into a red Nissan motorcar and drove off. The incident was witnessed by a customer, Colin Macey, who saw him enter and leave the bank and get into the Nissan and drive off, and by three bank employees Emma McDermott, Linda Strudley and John Burnett, who saw and heard what happened inside the bank. The robber's face was also captured, in profile and face on, on the CCTV camera inside the bank. The eyewitnesses described the robber as five foot six to five foot seven inches tall, wearing a jacket which all but Mr Macey described as blue or blue or green.

[2]At 1.45 pm a red Nissan motorcar D990 OGP which had been stolen on 9th February was found by P.C. Cole at Gilbert House, MacMillan Street in Greenwich about a mile from Nelson Road. In it was a yellow money bag containing dye stained notes and a blue cotton jacket. It had clearly been the getaway car. Later that day a higher identification officer, Julian Gomm, recovered a Bacofoil box containing a roll of foil from the glove box, on which was a fingerprint impression which was chemically developed and photographed on 2nd March and 7th April. The appellant was arrested on 12th June and interviewed. During interview he was shown the CCTV footage. He denied that it depicted him. He provided specimens of his fingerprints. On 9th July 1997 the fingerprint developed from the roll of foil was compared with his and found to match. An admission was made at the trial that the fingerprint on the roll of foil was his.

[3]Identification parades were held on 16th July 1997 during which Colin Macey and Emma McDermott each picked out a volunteer and not the defendant. None of the eyewitnesses noted or gave evidence at the trial of any distinctive facial characteristics of the robber.

[4]The Crown called Michael Harrow, an expert in imagery analysis, for two purposes. First, to calculate the height of the robber shown in the CCTV footage, which he put at five foot six and a half inches; and secondly to compare distinctive facial characteristics of the robber with photographs of the appellant. Mr Harrow identified a number of characteristics which were shared by many of the general population, plus six which he said were, "the more unusual and thus individual". They were, first, a mark or dark shadow on the left cheek; secondly, high arched eyebrows; thirdly, dark bags under the inner section of the eye; fourthly, a pronounced nose lip fold on the left hand side of the face; fifthly, a pronounced lip chin fold and associated recess or shadow just below the lower lip; and sixthly, non adherence of the lower part of the ear and the pronounced size and shape of the lower earlobe when seen in profile. He concluded that in his words the "photographic cover" of the robber, in other words the CCTV footage provided "strong support to the Crown's case that the robber and the appellant were one and the same person."

[5]Both aspects of his evidence were disputed in detail by Dr Linney, a medical physicist, who has advised or given evidence on facial imaging topics in a number of cases. It is not necessary to set out his detailed objections to Mr Harrow's finding, save to note that he put the robber's height at five foot three to five foot four inches, and certainly less than five foot six inches, and said that he was not sure it was safe to come to the conclusion that the robber and the appellant were one and the same.

[6]At the trial the jury were invited to compare the stills from the CCTV footage with the appellant who walked in front of the jury box for that purpose. The appellant elected not to give evidence in his own defence after due warning from the judge.

[7]At the conclusion of the evidence the Crown's case rested on four main planks and one subsidiary one. The four main planks were, first, the fingerprint on the roll of foil in the glove box of the getaway car; secondly, the jury's comparison of the CCTV stills with the appellant; thirdly, Mr Harrow's evidence; fourthly, the defendant's failure to give evidence; and the fifth and subsidiary point was the eyewitnesses' estimate of the robber's height.

[8]The judge's directions in law were accurate and complete and no material criticism is now made of his summary of the evidence.

[9]The jury unanimously convicted the appellant of robbery and of possessing a firearm or imitation firearm with intent to commit robbery. It acquitted him of a similar pair of counts arising out of an earlier robbery of a different branch of Lloyds Bank.

[10]Leave to appeal was granted by the single judge because of doubts, properly disclosed by the Crown, about the reliability of Mr Harrow. The same doubts were considered by this court in Stubbs

[2002] EWCA Crim. 2254

, and were summarised in the judgment of the court given by Rose LJ at paragraphs 17 to 19. The court described them as founded on:

"material which relates to a man called Baker and another man called Brade... It showed that in November 1997 a man called Baker was arrested and charged with a number of offences of indecent assault and robbery allegedly committed in 1996 and 1997 in the Birmingham area. Following one of the assaults the assailant used a cashpoint card from one of the victims and while he did so a CCTV image of the assailant was obtained. Mr Harrow compared that with a surreptitiously taken photograph of the man Baker. He concluded that he (Baker) and the perpetrator of the offence using the victim's card at the cashpoint was one and the same person. Baker pleaded not guilty and was remanded on bail. In November 1998 another man was arrested. He subsequently admitted the relevant offences, including the assault giving rise to the use of the cashpoint card. 18. On 2nd July 2001 the CPS policy directorate issued a memorandum to Assistant Chief Crown Prosecutors noting that Mr Harrow had given unreliable evidence in the Baker case, was generally a poor witness who tended to lose his temper in the witness box and advised them that he should no longer be instructed as an expert witness for the Crown. 19. Thereafter the CPS became aware of a second case of misidentification involving Mr Harrow. In January 2001 he carried out facial mapping comparisons in connection with the investigation of a murder which had occurred in August 2000, following which the victim's car had been used at a petrol station where there was a CCTV camera. At the time the police suspected a man called Brade of being the murderer, although he was never arrested or charged with the offence. They obtained a video from Brade. It was from that that Mr Harrow carried out a comparison with the man who used the car at the petrol station. He concluded that it was highly probable that Mr Brade had been the man at the petrol station and there could be very little doubt that Mr Brade had also been the man at a musical festival at a local community centre. In fact a man called Mowatt was arrested for the murder. He admitted that it was he who was depicted in the various images and subsequently pleaded guilty to murder. It appears that Mr Harrow has now retired from the position he previously held at the Imagery Bureau."

[11]Mr Wilcock submits that if this material had been known at the time of the appellant's trial then either the Crown would not have relied on Mr Harrow's evidence or the defence would have so undermined it as to deprive it of any value in the eyes of the jury and in either event says the appellant's conviction is unsafe.

[12]Mr Forster for the Crown concedes that the Crown would not have called Mr Harrow, but submits that his evidence was not of decisive importance in the light of other evidence against the appellant and in the light of the judge's comment to the jury about the weight or lack of it which might attach to the expert evidence and he submits the conviction is safe.

[13]Both agree that the test is that laid down in Pendleton

[2002] 1 WLR 72

, namely was it inevitable that the jury would have convicted if it had heard only the evidence implicating the appellant in the crime and not that of Mr Harrow and by adaptation of Lord Bingham's test at paragraph 19 this court should test its own provisional view by asking whether the evidence might reasonably have affected the decision of the jury to convict. If so the conviction must be thought to be unsafe.

[14]Applying that test this court has no doubt the conviction is unsafe for the following reasons: first, Mr Harrow's evidence was an important plank of the Crown's case. Without it all that that the Crown had to prove the identification of the robber was, first, the eyewitnesses' estimate of his height, which corresponded with the appellant's but was hardly a distinctive feature. Secondly, the jury's own comparison of the CCTV stills with the appellant. The material available to this court does not permit us to assess the reliability of that comparison. Thirdly, the defendant's fingerprint on the roll of foil, which undoubtedly proves that an object handled by him had been found in the car which had been stolen 17 days before the robbery and used as the getaway car; but it is impossible to say that a jury would have drawn the inference from that fact that the appellant was in the car as it left the scene of robbery on 26th February 1997. Fourthly, the defendant's silence at trial, which of course can only support other evidence of guilt and not found a conviction.

The judge's comments to the jury about the expert evidence was as follows:

"You may find the evidence of the various witnesses who saw the robber in the bank and outside the bank as being more persuasive than the scientific evidence as to the robber's estimate of height and facial features. But I emphasiSe that it is a matter for you to decide..."

There are difficulties with reliance on that comment. First, the eyewitnesses gave no relevant evidence about facial features; secondly, and therefore, the only expert evidence to which the comment could relate was as to height, which is not a significant identifying feature; and thirdly, the judge emphasised correctly that the assessment of the evidence, including the expert evidence, was a matter for the jury. As Mr Forster conceded in his written skeleton argument, it is impossible to say what weight the jury placed on Mr Harrow's evidence and in the judgment of this court it is impossible to say that it would have convicted if it had not heard it. For those reasons this appeal must succeed and the convictions be quashed.

[16]We do not however wish to pass from this appeal without making general observations about the use of facial imaging and mapping expert evidence of a reliable kind. Mr Harrow, like some other facial imaging and mapping experts, said that comparison of the facial characteristics provided "strong support for the identification of the robber as the appellant". No evidence was led of the number of occasions on which any of the six facial characteristics identified by him as "the more unusual and thus individual" were present in the general population, nor as to the frequency of the occurence in the general population, of combinations of these or any other facial characteristics. Mr Harrow did not suggest that there was any national database of facial characteristics or any accepted mathematical formula, as in the case of fingerprint comparison, from which conclusions as to the probability of occurrence of particular facial characteristics or combinations of facial characteristics could safely be drawn. This court is not aware of the existence of any such database or agreed formula. In their absence any estimate of probabilities and any expression of the degree of support provided by particular facial characteristics or combinations of facial characteristics must be only the subjective opinion of the facial imaging or mapping witness. There is no means of determining objectively whether or not such an opinion is justified. Consequently, unless and until a national database or agreed formula or some other such objective measure is established, this court doubts whether such opinions should ever be expressed by facial imaging or mapping witnesses. The evidence of such witnesses, including opinion evidence, is of course both admissible and frequently of value to demonstrate to a jury with, if necessary, enhancement techniques afforded by specialist equipment, particular facial characteristics or combinations of such characteristics so as to permit the jury to reach its own conclusion - see Attorney General's Reference No 2 of 2002

[2002] EWCA Crim 2373

; but on the state of the evidence in this case, and if this court's understanding of the current position is correct in other cases too, such evidence should stop there.

LORD JUSTICE TUCKEY: Mr Wilcock, we canvassed the question of a retrial. I do not know what the Crown's attitude is, but there is no reason why there should not be a retrial in this case.

[18]MR WILCOCK: My Lord, the sentence imposed still has a number of years to run. In those circumstances, recognising the balance between public interest and in spite of the delay, I cannot say there should not be a retrial.

LORD JUSTICE TUCKEY: Yes. Presumably the Crown want another trial?

[20]MR FORSTER: We would welcome the opportunity, my Lord.

LORD JUSTICE TUCKEY: I am sure. In those circumstances, we allow the appeal, quash the conviction, direct that a fresh indictment be preferred against the appellant for this robbery and direct that the appellant be re-arraigned on that indictment within two months. We will talk about bail in a moment. We will make a representation order for the retrial, which we can do. So far as the location of the retrial is concerned, that should be determined by the presiding judge for the Southeastern circuit. It may be the Old Bailey but we are not now asked to direct that that should happen because there is no way it can be avoided if it is convenient to have it somewhere else, so we do not make that direction. The only question is bail. What is the position, Mr Forster, was the appellant on bail? (There then followed a short discussion regarding bail)

LORD JUSTICE TUCKEY: We refuse bail on the understanding that you can make your application if and when you manage to get a proper one together.

[23]MR WILCOCK: Your Lordship there is one other matter I would seek to raise. The defence were represented by counsel throughout the appeal. In fact this appeal and most of the appeals involving Mr Harrow arose out of the interest shown by those who sit behind me in his evidence. The disclosure which resulted in the success of this appeal was as a direct result of them writing a number of letters and making a number of enquiries, both nationally and with the relevant section of the CPS, I wonder whether in the circumstances your Lordships would think it appropriate to order a defendant's costs order so that they might be reimbursed.

LORD JUSTICE TUCKEY: They have, am I right in saying, there is a representation order which covers their appearance today?

[25]MR WILCOCK: We requested legal aid to cover solicitors, but that was not granted. So they are not even getting reimbursed for their attendance today. They have been of huge assistance throughout this appeal and if your Lordship feels it appropriate I would ask that they be reimbursed for both that and the work before.

LORD JUSTICE TUCKEY: Are you saying that they have, as a result of this case or other cases?

[27]MR WILCOCK: Their objective being this case and this case alone. It is as a result of their enquiries in this case that the information led to other cases.

LORD JUSTICE TUCKEY:

[28]This conviction goes back to August 1998. What sort of period are we talking about?

[29]MR WILCOCK: Your Lordship from about 2000 onwards.

LORD JUSTICE TUCKEY: Mr Wilcock, we will make a defendant's costs order as you ask in respect of your solicitors' representation of the appellant, the amount of such costs to be assessed by the Registrar of this court. But to be churlish I am sure you would think not to include the costs of their attendance today because that was not necessary.