Gardner, R v [2004] EWCA Crim 1639

Case No 2001/02772 C3

[2004] EWCA Crim 1639

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM

Sir Edwin Jowitt

2001/02772W2

Venue Royal Courts of Justice

Date Monday 28 th June 2004

Strand,

London, WC2A 2LL

Before

LORD JUSTICE WALLER

MR JUSTICE DAVIS

MR JUSTICE DAVID CLARKE

Between

RRespondent

Trevor Elton GardnerAppellant

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Franz Muller QC and Marika Bell (instructed by CPS Wolverhampton) for Respondent

Stephen Kamlish QC and Joel Bennathan (instructed by Hadgkiss Hughes and Beale) for Appellant

Judgment

Lord Justice Waller :

[1]On 31st August 2000 in the Crown Court at Stafford before Sir Edwin Jowitt, sitting as a High Court Judge, and a jury, the appellant was convicted of manslaughter and sentenced to seven years imprisonment. The case concerned a fire at a block of flats in which a lady was killed, and whether the appellant started the fire deliberately. Originally the appellant had been charged with murder under count one on the indictment, but that was deleted by order of the trial judge at the start of the trial.

[2]A trial before Hughes J in June 2000 was aborted following a ruling by Hughes J in relation to parts of an interview between the appellant and the police, and because of timetabling difficulties. There had previously been a hearing in which an application had been made on behalf of the appellant to stay the proceedings for abuse of process. Thus, this was the third attempt at a trial.

[3]The appellant appeals against conviction by leave of the single judge. The appellant’s grounds of appeal raised five grounds. The first related to whether the judge ruled correctly on a PII application; the second related to the judge’s ruling permitting a dock identification; the third related to the judge allowing Mr Ashley Windsor to express his view that, by virtue of equipment he had used to examine CCTV images of a person at the relevant block of flats, he could see things that others could not; the fourth related to the question whether a juror had for a time been asleep; and the fifth was a general ground suggesting that in all the circumstances the conviction was unsafe.

[4]The single judge ruled as follows. He refused permission in relation to ground one, having reviewed all the transcripts of such ex parte hearings as had taken place. He refused permission in relation to ground four, the question whether a juror was asleep. After some hesitation he concluded that the appellant should be allowed to argue grounds two and three, expressing the view in relation to ground two that he could not tell from the material before him whether there was any substance in the suggestion being made at that time that prior to the dock identification the police allowed the witness, Mr Pope, to look at the defendant in the dock prior to entering the court. As regards ground three the single judge was influenced in the decision to grant leave by the assertion being made at that time that the defence were not allowed access to Mr Ashley Windsor’s technology and were not provided with his work record or notes, albeit the judge expressed the view that he could not tell whether there was any accuracy in that assertion.

[5]Before us the application with regard to ground one, the PII ground, was renewed but Mr Kamlish QC, on behalf of the appellant, simply asked us to review the papers, indicating that only if there were points which we identified as troublesome, would he need to address us. We have reviewed the papers and all the transcripts of ex parte hearings. The trial judge was clearly right in the ruling he made, as was the single judge. That application thus must be refused.

[6]As regards ground four, relating to the assertion that a juror was asleep, no application to renew that ground has been pursued before us.

[7]The two grounds pursued before us relate to(1) the dock identification and

(2) the evidence of Mr Ashley Windsor. But it should be said at the outset that as regards the dock identification the aspect that troubled the single judge has not been pursued. As regards Mr Ashley Windsor and his evidence, although at one time it seemed that an application would be made to put in fresh evidence in an attempt to establish that Mr Windsor’s technology was not made available to the defence, that application was not pursued. Thus again, the point that troubled the single judge has not been the subject of argument. The points pursued have come down to this. First that this was not a case where the judge could, in the exercise of his discretion, allow the witness, Mr Pope, who was asserting that he knew the appellant and knew with whom he had had a conversation, to identify the appellant in the dock. The second ground has been modified to an assertion that, whether through the fault of the defence team at the time or not, the fact is that no expert witness for the defence was called who could express a valid opinion as to the analysis done by Mr Ashley Windsor, and that in the circumstances therefore there was an inequality of arms or an unfairness in the trial process. Since it is submitted that both grounds go to the identity of the appellant and since that was a key issue, it is submitted that either or both grounds render the conviction unsafe.

The Facts

[8]On 15th August 1999 there was a fire in a block of flats, Brockfield House, Wolverhampton, where the appellant resided on the ground floor. As a result of the fire Nancy Mapininga died.

[9]On the ground floor, past the foyer, there was a hall with lifts on either side; the lift to the odd-numbered floors was on the left of the hall coming from the foyer; the lift to even-numbered floors was on the right. Between that lift and the door to the dry riser was a short corridor leading to a door to stores known as the alcove. Next to the dry riser was a room for “electrics” and next to that was a fire door in a corridor leading to the stairs and the back door. The back door could be opened from the inside but not from the outside and should have been kept locked. The appellant’s flat was next to the lift to the odd-numbered floors. Tenants were supposed to put their rubbish down a rubbish chute, which discharged into a bin room, but some tenants used to leave their rubbish in the alcove. The seat of the fire was in the alcove where rubbish had been set alight. The issues at the trial were first whether the fire could have been caused accidentally, or whether it had been started deliberately; second, if it had been started deliberately, whether the appellant was the person who had deliberately started the fire.

The Prosecution Case

[10]Evidence was given by certain persons as to the appellant’s conduct and attitude prior to the fire. Mr Perks, a concierge, gave evidence that he spoke to the appellant about playing his music far too loudly. According to him the appellant’s attitude was that he paid his rent and would do as he liked. Mr Lewis gave evidence that he was present on one occasion when the appellant spoke about playing his music and was aggressive. Mrs Perks gave evidence that the appellant regularly left his rubbish in the alcove. When she told him that he should not do so he said he would if he wanted to.

[11]Mr Price, another concierge, gave evidence that he worked at Brockfield House until a date before the fire. He and the appellant both spoke “street language” and got on together. When he told the appellant to tone his music down there was no unpleasantness, but on subsequent occasions the volume had again been too high. He described how the appellant did not get on with Mr Perks. Mr Price described how one morning three or four weeks before the fire the appellant was at the flats and he told Mr Price that he was going to burn the place down. As the appellant was holding a can of lager, Mr Price did not take him seriously, although there were no other signs that he was affected by drink. He reported those remarks to Mr Perks when Mr Perks came on duty. In cross-examination Mr Price placed the time of this conversation about three months before the fire. He was clear that the appellant had made the remarks to him, albeit he had not taken the remarks seriously at the time.

[12]Mr Pope gave evidence. He lived in a maisonette opposite Brockfield House. He gave evidence how, on an occasion some two weeks before the fire, he was standing on his balcony and he saw a person walking across the car park just by Brockfield House. That person signalled to him that he wanted a cigarette. Since he, Mr Pope, was smoking he couldn’t say he had none and thus he offered him a cigarette. The man came on to the landing where Mr Pope was and Mr Pope gave him a cigarette. There was then a conversation between them in which the man said that he lived in one of the flats at Brockfield House and was fed up with people knocking on his door and complaining about his music. He said he lived on the first floor in Brockfield House and said that he was now going to move out to Wednesfield and said “when I’ve moved all my stuff, I’m gonna burn the flats down”. Mr Pope’s reaction was to laugh, because he thought the man was joking, at which, according to Mr Pope, the man became agitated. The man then said “Well, you wait and see in a week or two. When I’ve moved, I will burn the flats down.” According to Mr Cope, the man was not joking. He was in a bad mood, angry and shouting.

[13]Mr Pope was asked whether he had seen the man before and said “yes, quite often.” He said the man was always walking across the car park. Before Mr Pope went shopping he would bump into him in the street. According to Mr Pope they would meet walking past each other. They wouldn’t speak, but they would say “hello” to each other. He said that this was in fact not the first time that the man had asked for a cigarette. He had asked quite a few times previously but Mr Pope had refused him. He also described seeing him by the shops just around the corner in Wednesfield Road, which is close to where Mr Pope lived. The period of time over which Mr Pope said he had seen this man was probably two years. He did not know whether he was always living in the same place during that time. During a period of a month he would probably see the man four, five or six times. At the conclusion of his examination in chief, Mr Muller QC asked him whether he would recognise the man about whom he was talking and whether he would have any problem recognising him, and Mr Pope responded that he would have no problem. It was at that point that Mr Rumfitt QC, appearing for the appellant at the trial, asked the jury to withdraw. It seems the judge thought that the ground was being laid for Mr Pope to identify the man about whom he was speaking as the man in the dock. Mr Rumfitt objected to that procedure being adopted but, in a ruling to which we will return hereafter, the judge ruled that the witness could be asked whether he could see the man about whom he was talking in court. In the result, Mr Pope was asked that question and indicated the appellant in the dock.

[14]In cross-examination Mr Rumfitt put to Mr Pope that he would of course know that the defendant was in the dock and thus that it would not be difficult to pick out the appellant. Mr Pope also in cross-examination admitted to having previous convictions, including four for dishonesty and having spent some time in prison fourteen years earlier. Mr Pope further said that although he had seen the fire he only remembered the conversation when he read about the fire in the papers. On the 16th August 1999 he telephoned the police and asked to speak to Sergeant “Bunny” Clarke. He was not hoping to do himself a favour by giving information to the police. He left a message with a police officer to the effect that a man had approached him and said he was sick of people complaining about his music. Mr Pope did not mention the man’s colour, or say that the man had said that he was sick of the noise in the flats. (These points were being put to Mr Pope because of the evidence of DC Hobster, referred to below.) Mr Pope only knew that someone had been arrested when the police came to take his statements. They did not say anything about the person arrested. He was not influenced in what he had said in his statement by anything he had heard.

[15]Mr Rumfitt put to Mr Pope firmly that he had never met the man he had pointed to in the dock in his life. Mr Pope responded “It would be hard, wouldn’t it, you know, I lived right opposite Brockfield House.” Appreciating the force of that comment Mr Rumfitt, continued:- “You may have seen him about, I suppose that follows because you have lived there for some time. You say the person you spoke to had been around for some two years? A – Two years, yes. Q – Did you understand him to be living in Brockfield House for that two year period or not? A – No, I didn’t even know he lived in Brockfield House until we had that conversation. I’d seen him coming from Brockfield House but he might have been visiting. Q – So for the whole of the two years you had seen him going to and from Brockfield House? A – More or less, yes. Q – I make it clear, not only do I suggest that you have never in your life spoken to the defendant, but that he most certainly never told you that he was going to set fire to the flats. A – He did, yes.” A – He did, yes.”

[16]DC Hobster gave evidence that she took a call from Mr Pope and realising that what he told her was potentially important she made a note of what he said. According to her Mr Pope said that a black man had approached him and said that he was sick of the noise in the flats. This was to be contrasted with the conversation which Mr Pope was asserting that he had had with the appellant.

[17]According to the admissions the appellant had lived at Brockfield House since March 1999. Prior to that time he lived with his mother at an address which was separated from Brockfield House by an estate. In February or March 1999 she moved to Campion House, which was next to Brockfield House. The first-floor tenant of Brockfield House was a seventy-two year old man, Mr Morris, who wore glasses and had a shaved head.

The Day of the Fire

[18]According to the expert evidence the seat of the fire was in the alcove, where rubbish had been set alight. Once the fire got going inside the hall it burned fiercely. From the outside smoke would have been escaping through the windows in the upper floors, but it would not have been apparent that the building was going up in flames. The suspended ceiling caught fire and the fire spread causing considerable damage in the hall. All the doors remained shut except the doors to the lift which served the odd numbered floors. The lift doors failed in the open position. The fire burned the electrical cables and cut off the power supply to the whole of the building.

[19]The deceased was found face down on the floor near to the door of the foyer. She died from smoke inhalation and extensive burns. She had come from the fifteenth floor and exited the lift into the floor which was on fire. She was overcome as she tried to escape through the door to the foyer. A Mr Currien gave evidence that he had visited Brockfield House at 10 am on 15th August, i.e. some hours before the fire. He went into the bin room and noticed there was a strong smell of smoke. He further said that they did find from time to time burning cigarette ends in the bin. The defence relied on this evidence as showing that occasionally cigarette ends were found in the bin and that some burning resulted. Thus, they said, there was no justification for suggesting that the ultimate fire was deliberately set.

[20]Dr Barnett, a forensics fire expert, who had specialised in fire investigation for twenty years gave evidence that accidental application of the source of ignition was unlikely. The forensic evidence was directed at whether the cause of the ignition could be a lighted cigarette, smouldering for some time then causing a fire, or whether there was some more immediate cause of the ignition. Dr Barnett gave evidence that there were two ways in which a source of ignition can cause a conflagration. One is that the source of ignition causes flaming more or less straight away. This is when the heat is sufficient at or close in time to the application of the source of ignition to set alight the material with which it is in contact. The second way in which a conflagration can be started is by the smouldering process, when the heat initially applied to the flammable material by the source of ignition is insufficient to set light to it. The thrust of his evidence was that if the flames begin more or less straight away, the generation of a significant quantity of smoke comes second. By contrast, as experiments had shown, if a fire is preceded by and caused by smouldering, the smouldering will itself produce copious amounts of smoke – smoke first as the heat builds up and flames second once the heat has built up sufficiently. Dr Barnett said that he had watched the CCTV video film and he pointed out that there was no indication of smouldering and there was no evidence that anyone smelt burning before ignition, until the attempt was made to raise the alarm.

[21]Mr Gibbs, when he came to give evidence for the defence, explained that he was a scientist whose expertise covered a wide spectrum, including the investigation of the cause of fires. His evidence was that the fire could have been started deliberately, but it could also have been started accidentally by careless or reckless disposal of smoking material. He did not agree with Dr Barnett that a fire which was preceded by a period of smoke necessarily produced copious smoking. Some material smoked a great deal, some hardly smoked at all. A lighted match would produce a very rapid ignition. If there was smouldering it would be a cigarette end and there would be a delay. In his experiments the longest delay before a cigarette end would have reached ignition was forty-two minutes. He said that more than ninety people passed through the hall from four o’clock onwards and if any of them had been smoking it would not necessarily have shown on the video. In cross-examination he said that his test, dropping a cigarette end onto paper, resulted in a fire once every seventeen times, so accidental ignition was possible, but he accepted against the odds. He accepted the most likely cause of the fire was a lighted match, which would cause rapid ignition to flame and would become obvious in half an hour.

[22]Other evidence relevant to the cause and the timing of the fire was as follows. Mr Lewis gave evidence that he was in the hall at 7.20 pm and there was no sign of a fire and he recalled no smell. There was loud music coming from the ground floor flat at this time, but Mr Lewis heard at least one angry voice raised. As the lift arrived and the doors opened he heard another door open and the volume of music and voices increased. The lift door closed and the lift descended. He heard no more. He went into his flat and went to bed. He fell asleep and when he woke his flat was full of smoke. Mr Lewis only became aware of the police investigation two or three days after the fire. He made a statement to the police on the 23rd August after he knew that the police had someone in custody, but his account was not influenced by anything he had heard.

[23]Mr Mthethwa gave evidence that at 7.23 pm he went to visit his cousin in flat 23. His cousin let him into the foyer and he went to the lift on the right and called it. There was no smoke or smell of fire in the hall. He noticed a flicker of flames to his left, looking into the alcove, and saw that one or two of the bin liners were on fire. He called his cousin trying to get him to call 999. He thought it pointless to try to fight the fire on his own so he knocked on the appellant’s door. There was no loud music. When Mr Mthethwa asked the appellant if he had a phone, he said he did not have one. Mr Mthethwa asked for a bucket and he said he did not have one or anything which could hold water. The appellant closed the door although he would have been able to see the fire. As Mr Mthethwa walked away from the lobby he heard a bang and looked back and saw the place full of smoke.

[24]The appellant made two 999 calls, the first at 7.28 pm when the fire was burning and the smoke was getting into his flat through the front door.

[25]Mr Perks received a telephone call informing him of the fire at 7.30 pm. He and his wife went to the scene and they helped the appellant out of his window. The appellant was pretty shaken and was given oxygen by an ambulance man. He told Mr Perks that they would have to get him out of the flat because it was damaged so much and he would not be able to go back. He said there had been a fire that morning and he was getting fed up.

[26]Mrs Perks said that the appellant told her that they could not tell who had started the fire because the video cameras had been stolen from the concierge’s office. When she said that they had the main video cameras in the housing office, the appellant became agitated and walked away. In cross examination Mrs Perks agreed that the appellant was in a bad mood and was complaining because his possessions had been damaged by fire. She denied that she had convinced herself that the appellant had started the fire and that this had affected her evidence. Mr Round, the senior concierge, gave evidence that the video recording equipment had been stolen from the office in June 1998. After that all recording equipment for all flats was kept in a single office, none was at Brockfield House. The monitors at the concierge’s office had not been stolen.

[27]Mr Thompson gave evidence that he watched the fire from a distance but when he saw the fire brigade arrive he went to the car park next to Brockfield House. The appellant came up to him and said it was a mess and he had been unable to get out of his front door because it was hot. He had had to climb through the window. He said “they can’t do nothing because there’s no cameras in the building.” He was arrogant.

[28]The appellant was arrested at about 9.30 pm and he said “no way, man, it’s set up”.

The Appellant’s Interviews

[29]The appellant was interviewed three times on the 16th August and throughout he denied starting the fire. In the first interview he said that he had lived with his mother at Bushberry Road until he moved to Brockfield House some three months previously. In the second interview he said that he had a mobile phone but needed to get some credit for it. He later said it was working and he made two 999 calls from it. He had been out during the day and his father had dropped him off at 6.45 pm near Brockfield House. He went to his flat and tidied up. He began to cook a meal. It was about 7.10 pm. He put some rubbish (newspapers and eggshells) in a carrier bag, which was tied at the top, outside the door near the foyer. There was no-one about and no fire when he dropped his rubbish on top of the other rubbish. He was in the bath when Mr Mthethwa knocked. Later he said he had run the bath but had not undressed. He opened the door to Mr Mthethwa but he could not see the fire or see anything and the told Mr Mthethwa that he could not help him. He looked through the spy hole in his door and saw the fire spreading and called 999 twice because he did not get through the first time. He could not leave his flat because of the dense smoke in the hall and was helped out through the window. Before leaving he emptied the bath because he thought it was important to do so although he gave no reason for doing it. He was worried about his belongings in the flat and he was shocked at being arrested.

[30]In his third interview he said that he could not remember how many times he had left his flat because somebody else had pressed the buzzer on the intercom. He went out about three times because he thought it was a friend. He claimed to look round the side but saw no-one. In fact the plan showed that the appellant would not have been able to see anyone in the lobby by looking round the corner; he would have had to cross almost to the alcove. This was the subject of a lies direction by the judge.

The Video Evidence

[31]CCTV footage was available. Certain footage was available taken of the appellant earlier in the day and in relation to which there was no issue that it was the appellant. Footage was also available relating to the period between 7.00 and 7.30, which showed the activities of a person or persons, very indistinctly, in the area of the hall and foyer.

[32]For the Crown two experts were called, a Dr Linney and Mr Ashley Windsor. For the defence Mr Gibbs gave evidence on this aspect as well as the source of fire. Dr Linney is an expert in what is called facial mapping. Mr Windsor’s evidence was of a different character. There was no issue between Mr Linney and Mr Gibbs so far as the ability to identify the person in the hall or foyer by reference to a facial mapping technique was concerned. The critical point so far as the appeal is concerned relates to the evidence of Mr Ashley Windsor.

[33]Dr Linney gave evidence that he was an expert in the comparison of photographic images and in facial mapping. He examined the video film taken by camera 7 and a number of still frames. His evidence was that there was no possibility of making a facial identification from the film. Dr Linney made a comparison between images in a frame in relation to which there was no dispute that it was of the appellant, with those images in frames relating to the period 19.21 and onwards. His evidence was that the height and build of the person in the frame accepted as the appellant was consistent with the height and build of the person in the frame taken at 19.21.16 (MT/27 in the bundle of still images placed before the jury). The clothing was consistent though not well depicted with a light top and dark trousers. But he told the jury that it was difficult to identify differences in colour on the black and white photograph. He said he could find no difference between the figures, that they could be the same. He said in cross-examination that he was not saying that the images were photographs of the same person. It was equally possible they were not. He accepted that his comparisons in height, for example, allowed for a one inch difference and he could not say that there was the highest probability that the images were of the same person. Mr Rumfitt put to him “Is it fair to say in your opinion there is no scientific basis for claiming to be able to identify an individual from that film?” Answer:

“From this video it would be unsafe to attempt to identify this individual, yes.”

[34]Mr Ashley Windsor had developed a different technique. He had developed equipment to enable the images on a video surveillance film to be presented so as to extract as much information from it as possible. This included enhancing the film by computer to allow frame by frame examination, the ability to zoom in on part of the frame to alter the contrast and brightness to bring out detail and to run the film backwards and forwards. The second purpose of the equipment is to assist in making comparisons between one frame and another. To help in that Mr Windsor has developed three techniques. He called the first of them ‘image addition’. By means of his computer he takes an image from one sequence of movements and selects from another sequence an image of a person who displays approximately the same stance and is about the same distance from the camera as the first. The second image is superimposed on the first so the viewer can observe whether the two images are like one another and whether there are any differences. The difference, depending on what it is, may show that the images are of different people. The second technique is referred to as ‘image subtraction’. Mr Windsor takes the two images selected because of their comparable poses and distances from the camera and turns the first computerised image into a negative and superimposes the second on it in a positive form. The result is that the features which are common to both images disappear and only what is different remains. Mr Windsor’s third technique is a ‘blink comparison’ whereby he can switch from one image to another. When there are differences between the two they generate an illusion of movement so that the eye is able to pick up the differences. That technique also enables the viewer to see that when one image is removed an element which had appeared to belong to the picture which has been removed in fact belongs to the picture which remains. It was the latter technique which Mr Windsor actually used to refute the suggestion made in cross-examination that one of the people who came into the hall had a cigarette in his mouth. Mr Windsor demonstrated that this was in fact part of the pattern on the wall. This feature of Mr Windsor’s evidence was to damage Mr Gibbs’ credibility in that the cross-examination would appear to have been put forward on the basis of Mr Gibbs’ suggestion that the person carried a cigarette in his mouth, although when Mr Gibbs came to give evidence he himself suggested otherwise.

[35]Mr Windsor gave evidence that he had studied the sequence of images where those images were accepted to be of the appellant and had done so for a whole day. He then, using his techniques, compared those with the sequence taken of the images over the relevant period. Mr Windsor was able to bring certain of his equipment to court but could not reproduce the conditions that he said that he had in his laboratory. Thus a number of times in the course of his evidence he stressed first of all how he had different equipment from that which was available to Dr Linney and how he was able, or had been able, to see something which the jury and the judge would not be able to see in the court room. On the basis of what he had been able to see in his laboratory he said that it was his opinion as an expert that there was a high degree of probability that the person seen in the images between 7.20 and 7.28 was the appellant in that he was the person shown in those images in relation to which there was no dispute that they were of the appellant.

[36]He, in the course of his evidence, dealt with two particular features. First, he suggested that the use of his techniques had been able to identify a subtle change in the light near the alcove at 19.21.51. Mr Gibbs, when he came to give evidence, did not accept that there was evidence of fire as early as 19.21.51. Mr Gibbs’ view was that the first unequivocal sign of fire was at 19.22.23. There is not a significant difference between these two timings, but this evidence from Mr Windsor went to the quality of the evidence he was able to give.

[37]The second feature is that the defendant had accepted in his interview that he had come out of his flat and put rubbish out some time shortly after 19.00. Mr Windsor’s evidence drew the jury’s attention to two of the stills, MT/18 and MT/27, timed respectively at 19.06.05 and 19.21.16. At 19.21.16 the figure is carrying something. But Mr Windsor’s evidence was that what was being carried was too small for a carrier bag. The object seen in the film at 19.06.05 was, according to Mr Windsor, the size of a half filled carrier bag. He also said that he did not see any image of anybody coming out of the alcove, which was not associated with the image of someone going into it. That would place the appellant as the carrier of his rubbish into the alcove in MT/18 at 19.06.05.

[38]Mr Gibbs was prepared to accept that the exercise Mr Windsor had done was valid but did not accept that Mr Windsor was entitled to draw the conclusions that he did. The following interchange between him and the judge summarises the position. “Mr Gibbs: I perfectly accept if we go to the present case and you see the person and you see their face, you see them at the back and it is an indistinct image and then you see them well into the camera, it is perfectly legitimate and proper to say, “Yes, that person is the same as the person you saw in the previous frame”. That is totally legitimate. What I cannot accept is if you move to another period of time and you see a blur, you see a blob, to say, “That blob is identical or” or to use the words “the highest probability”. That, in my view, is not sufficiently sustainable. Judge: I do not think that in fact was what Mr Windsor was saying. You may say, “Well, it is not a technique which is valid”, but what he is saying is that you look at the whole run of film, you look at all the features that are visible on the film as well as the gait, the movement, the stance. Looking at all of those things you then compare them with a known example to see whether you can say they are different, they are alike and if they are alike to what extent they are alike. That is what he is saying. Do I understand that you do not regard that as a valid exercise? Mr Gibbs: That is a perfectly valid exercise in its own right, my lord, but to draw the conclusion from that that it is the highest probability that they are the same person, I believe is totally invalid. Judge: In other words, he puts it a good deal too high. Mr Gibbs: Yes. Judge: Is that the area of conflict between you? Mr Gibbs: Yes, that is precisely the area of difference.” Mr Gibbs: Yes, that is precisely the area of difference.”

First Ground of Appeal – The Windsor Evidence

[39]It should perhaps be recorded that at the trial there was objection taken to Mr Windsor’s evidence on the basis that he was not an expert. The judge ruled that he was an expert and that the evidence was admissible. There is no challenge to that ruling on the appeal.

[40]There was further, at one time, to be an application to put in fresh evidence by reference to which the appellant would seek to suggest that Mr Gibbs was denied access to Mr Windsor’s work and laboratory. That evidence would have suggested active denial, i.e. attempts by Mr Gibbs to visit Mr Windsor and/or persuade the prosecution to allow him access, but such access being denied. That application was not pursued and it was accepted by Mr Kamlish that Mr Gibbs, or some other expert, could have had access to Mr Windsor’s laboratory and to the workings and images that Mr Windsor relied on.

[41]Mr Kamlish’s submission involved emphasising the number of times which Mr Windsor, in his evidence at the trial, had stressed before the jury,(1) how Dr Linney and Mr Gibbs, in providing their expert opinions, had not used the same equipment and techniques he had used; and

(2) what had now been produced for the jury was the best that could be produced outside laboratory conditions, and that he, in his laboratory and with the aid of his equipment, had been able to see something different and enhanced.

[42]Thus it was Mr Kamlish’s submission that albeit through the fault of the defence team or for whatever reason the simple fact was that there was not before the jury images by reference to which they could judge the opinion of Mr Windsor, and/or there was not even before the jury expert evidence given by reference to the images which Mr Windsor had actually seen. In the result the defence did not have material in relation to which they could cross examine Mr Windsor with any effect and did not have material, the subject of expert evidence, which would enable the jury to judge fairly whether Mr Windsor’s analysis and assessment of the probabilities of the person being the same in the different images, could be properly assessed.

[43]We commence consideration of the above submissions by saying that there is no doubt about the admissibility of this type of evidence. Its admissibility was approved in R v Briddick

[2001] EWCA Crim 984

. There is no rule (at one time suggested by Mr Kamlish) that in a case such as the present an expert witness cannot go further than saying “there are the following similarities”, leaving the ultimate decision to the jury, as opposed to the expert witness actually giving a view as to the degree of probability of the images being the same.

[44]All that said, a strong warning was given in the area of facial mapping recently in R v Grey, where Mitting J, giving the judgment of the court said this:- “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 occurrence 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 or not such opinions should ever be expressed by facial imaging or mapping witnesses. Then 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 here.”

[45]Clearly the above sounds a note of caution in relation to new techniques relating to identification. But there is no doubt that opinion evidence given by reference to studies which the expert has done but which a jury does not see is admissible. So for example in Clare v Peach

[1995] 2CR.APP.R333

, Lord Taylor, the then Lord Chief Justice, giving the judgment of the court held admissible the evidence of a police officer who had studied videos and was able to give opinion evidence as a result of playing the videos many times that the person in the video was the same person as a photograph of the appellant. The Lord Chief Justice quoted a passage from the judgment of Lord Hope in Hopes and Lavery v HM Advocate [1960] SC(J) 104 at 111, referring to the inconvenience if tapes had to be played and replayed before the jury as opposed to allowing expert evidence to be given in relation to them. The Lord Chief Justice further said “if admitting evidence of this kind seems unfamiliar and an extension of established evidential practice, the answer must be that, as technology develops, evidential practice will need to be evolved to accommodate it. Whilst the courts must be vigilant to ensure that no unfairness results, they should not block steps which enable the jury to gain full assistance from the technology. Accordingly the principal ground of appeal in this case fails.”

[46]More recently the Attorney General’s Reference (No 2 of 2002)

[2003] 1 CR.APP.R. 321

Rose LJ, the Vice President, dealt with the admissibility of evidence relating to analysis of CCTV images. He summarised the position in this way:- “In our judgment, on the authorities, there are, as it seems to us at least four circumstances in which, subject to the judicial discretion to exclude, evidence is admissible to show and, subject to appropriate directions in the summing-up, a jury can be invited to conclude that the defendant committed the offence on the basis of a photographic image from the scene of the crime:(i) where the photographic image is sufficiently clear, the jury can compare it with the defendant sitting in the dock (Dodson and Williams);

(ii) where a witness knows the defendant sufficiently well to recognise him as the offender depicted in the photographic image, he can give evidence of this (Fowden and White, Kajala v Noble, Grimer, Caldwell and Dixon and Blenkinsop); and this may be so even if the photographic image is no longer available for the jury (Taylor v Chief Constable of Chester);

(iii) where a witness who does not know the defendant spends substantial time viewing and analysing photographic images from the scene, thereby acquiring special knowledge which the jury does not have, he can give evidence of identification based on a comparison between those images and a reasonable contemporary photograph of the defendant, provided that the images and the photograph are available to the jury (Clare and Peach);

(iv) a suitably qualified expert with facial mapping skills can give opinion evidence of identification based on a comparison between images from the scene, (whether expertly enhanced or not) and a reasonably contemporary photograph of the defendant, provided the images and the photograph are available for the jury (R vStockwell

(1993) 97 Cr App R 260

, R v Clarke

[1995] 2 Cr App R 425

and R v Hookway [1999] Crim LR 750).” (i) where the photographic image is sufficiently clear, the jury can compare it with the defendant sitting in the dock (Dodson and Williams); (ii) where a witness knows the defendant sufficiently well to recognise him as the offender depicted in the photographic image, he can give evidence of this (Fowden and White, Kajala v Noble, Grimer, Caldwell and Dixon and Blenkinsop); and this may be so even if the photographic image is no longer available for the jury (Taylor v Chief Constable of Chester); (iii) where a witness who does not know the defendant spends substantial time viewing and analysing photographic images from the scene, thereby acquiring special knowledge which the jury does not have, he can give evidence of identification based on a comparison between those images and a reasonable contemporary photograph of the defendant, provided that the images and the photograph are available to the jury (Clare and Peach); (iv) a suitably qualified expert with facial mapping skills can give opinion evidence of identification based on a comparison between images from the scene, (whether expertly enhanced or not) and a reasonably contemporary photograph of the defendant, provided the images and the photograph are available for the jury (R vStockwell

(1993) 97 Cr App R 260

, R v Clarke

[1995] 2 Cr App R 425

and R v Hookway [1999] Crim LR 750).”

[47]In relation to the above passage from the Vice President’s judgment, Mr Kamlish and Mr Bennathan’s written submissions might be thought to suggest that in referring to “provided that the images and photographs are available to the jury” the Vice President was referring to the precise images which the expert had produced in a laboratory or elsewhere. But as they properly conceded that is not right. The images or photographs are the CCTV footage itself. The expert is assisting in the interpretation of those images. Just as in Clare and Peach the police officer was able to describe the number of times he had played the CCTV backwards and forwards in order to provide an opinion and did not have to conduct that same exercise before the jury, so there will be circumstances in which a witness, such as Mr Ashley Windsor, can go further and say, in addition to playing the CCTV footage backwards and forwards, he has been aided by equipment in his laboratory.

[48]Of course caution must be exercised and the judge in this case stressed the need for caution. He said for example at 34B of the summing up:- “It is important that you should be cautious in your approach to evidence which claims to make an identification to a high degree of probability. I say this particularly in the light of Dr Linney’s evidence, supported by Mr Gibbs, although he does not lay claim to such evidence, and in the light of what Dr Linney and Mr Gibbs say is the poor quality of the film material.” In a further passage at page 37 he gives a long and more detailed warning, ending with the following:- “Now has he gone too far in the material available to him? You cannot test his results in the way in which an examiner can test a student’s examination paper in mathematics, and so you will want to approach his evidence with caution. No-one suggests Mr Windsor is lying, but an honest witness who is mistaken can be very persuasive or can appear to be very persuasive.” “Now has he gone too far in the material available to him? You cannot test his results in the way in which an examiner can test a student’s examination paper in mathematics, and so you will want to approach his evidence with caution. No-one suggests Mr Windsor is lying, but an honest witness who is mistaken can be very persuasive or can appear to be very persuasive.”

[49]We come back to what is the real point on this issue. As a fact the defence had not through their expert been to Mr Ashley Windsor’s laboratories. As a fact they were thus ill-equipped to cross-examine and ill-equipped to give evidence on those matters. The fact also is however that they were served in June 2000 with Mr Ashley Windsor’s report. As we have said, the application to put in fresh evidence was not pursued and there is therefore no suggestion that Mr Gibbs could not have gone to Mr Ashley Windsor’s laboratory and reviewed all that Mr Ashley Windsor viewed for himself. Mr Gibbs himself put in a further report in August, just prior to the trial, but it did not deal with Mr Ashley Windsor’s evidence in any way.

[50]In answer to the suggestion that the prosecution should have appreciated the inequality of arms, Mr Muller submitted first that it was Mr Windsor’s evidence that he was not the only expert with this equipment in this field. He said that there were fourteen other persons with this equipment, ten of whom were in the police force but four of whom were independent. Thus, said Mr Muller, it could not be clear to the prosecution that the defence had not sought to obtain expert evidence in this field. It was possible they had done so and had received reports that did not support the stance that the defence wished to take. To that Mr Kamlish responded that it was clear to the prosecution that no such attempt had been made because the Crown still had the original of the CCTV footage and it was never asked for. Whether or not that is an answer, the point is that the defence were on clear notice that this evidence was going to be given. The Crown were entitled to think that the defence were taking their own decisions as to the way they wished to deal with it.

[51]Furthermore, once this evidence had been given at the trial there was no suggestion made on behalf of the appellant that the defence were unable to deal with it. There was, for example, no application to adjourn the trial and no suggestion that the defence had been ambushed or taken by surprise in any way. Nor was it suggested that Mr Gibbs was not in a position to deal with the evidence. Indeed, as we have already quoted, he did deal with it.

[52]Rather indirectly Mr Kamlish was critical of the defence team, but decisions such as these have to be taken by counsel when running a case. A visit to Mr Windsor’s laboratory might have made it difficult to deny Mr Windsor’s entitlement to give an opinion as to a high degree of probability that the images were the images of the same man. That would have damaged the appellant’s case. An alternative was to continue with Mr Gibbs aligning himself to Dr Linney and asserting that at least on facial mapping no confidence could be expressed as to whether the images at the material time from 19.20 onward, were the same person as the accepted images of the defendant.

[53]In our view it cannot be said that the defence team acted in any way which should lead this court to say there was an irregularity in the trial. In the light of the warnings given by the judge as to the caution that the jury should exercise, it furthermore seems to us that this aspect of the grounds of appeal would not, on its own, affect the safety of the verdict.

Dock Identification

[54]In describing this ground of appeal as concerning “a dock identification” a slightly misleading impression may be given. This was a case of course where identification was an issue in the sense that even if the fire had been started deliberately it was the appellant’s case that it was not him. It was furthermore the appellant’s case that it was not him shown on the CCTV footage. But the dock identification was not an identification by a witness saying that it was the appellant that they had seen actually lighting the fire. The dock identification related to a rather different issue and occurred in unusual circumstances.

[55]The judge correctly reminded himself of the passage in Archbold making clear that it is most unusual to allow a dock identification of any sort. But that there are circumstances in which a dock identification will be allowed is demonstrated by such authorities as R v Reid [1994] Crim LR 442. In that case a dock identification at the magistrates’ court had been admitted at the trial. It was however a recognition case in that it had been conceded that the aggregate period over which the witness claimed to have seen on a number of different occasions and been able to recognise the appellant was approximately three hours. It was a case in which the appellant had not asked for an identification parade and in relation to which it was not possible to spell out from anything he had said a request for one. He had been attended by a solicitor who also had made no request for one. The court held that it was a matter within the discretion of the judge. The court did not, by its ruling, seek to encourage dock identifications. It held that the trial judge had a discretion to permit evidence to be adduced of the dock identification made in committal proceedings. The question was simply whether the judge had exercised his discretion properly and the court was satisfied that he did so judicially having heard evidence specifically directed to the issue.

[56]The circumstances in this case were as follows. The appellant had been interviewed by the police after he was arrested. There was put to him in that interview a conversation that he was said to have had with the witness, Mr Pope. It was put, it is fair to say, in the form as reported by the woman police officer, in other words slightly differently from that which Mr Pope was going to give in evidence. Initially in the interview the appellant denied having any conversation whatever, but ultimately he accepted having some conversation and having made the threat to burn the block of flats down but maintained that he was joking. It was this interview that was excluded from evidence by Hughes J at the trial which was aborted in June 2000. At no time prior to the exclusion of that interview had there been any suggestion on behalf of the defence that identification, so far as the conversation with Mr Pope was concerned was in issue. Indeed, there was a defence statement for the June 2000 trial which did not put the matter in issue. No amendment to that defence statement was made prior to the commencement of the trial on the 21st August 2000. Thus, at the commencement of the trial, identification so far as this conversation was concerned had not been put in issue by the defence.

[57]On 21st August 2000, in connection with the PII application which related to Mr Pope, Mr Rumfitt made this submission:

“The submission I make is that if Mr Pope has been in the habit of giving information to the police then it is relevant to the defendant’s case that the jury should be made aware of that, because I have to put to him the conversation that was claimed to have taken place never did take place, and it is hardly something about which he is mistaken. In effect, I’m going to be putting to him and suggesting that it is either the wrong person, or he has made it up, and if the jury have to consider whether he has made it up they would want to know whether there is a reason why he should do so. There is no suggestion of any animosity between him and the defendant: indeed he says he had a friendly relationship so, on the face of it, it is a remarkable proposition to put to the jury that a witness had made up evidence in a case of this gravity, but it become less remarkable if the jury are to judge it against the background that this is a man who is acting as some sort of informer or informant . . .”

[58]There is no suggestion in that submission that Mr Pope and the appellant did not know each other at all, and indeed rather the opposite. As we have recorded (see paragraph 15 above) in Mr Rumfitt’s cross-examination of Mr Pope, Mr Rumfitt ultimately was not pressing Mr Pope to the effect that he did not know the appellant but was simply suggesting that this conversation, which Mr Pope was asserting had taken place, had not taken place.

[59]Mr Pope gave evidence and gave the answers we have already set out confirming that he would know the appellant and why he would know the appellant. It was in that context that the judge had to make his ruling as to whether Mr Pope could make clear to the jury about whom he was talking.

[60]By this stage it would be impracticable to organise an identification parade or organise any other form of identification other than a dock identification because Mr Pope had already begun to give evidence and because he could already see the appellant in the dock.

[61]Mr Kamlish accepted that the judge had a discretion whether to allow Mr Pope to identify the appellant in the dock as the person with whom he had had the conversation. But Mr Kamlish submitted that the judge could not properly exercise the discretion in the way he did unless he could be sure that if there had ever been an identification parade Mr Pope would have been bound to pick the appellant out on that parade. In other words, could the judge be sure that Mr Pope knew the appellant so well that he was bound to recognise him and bound to pick him out, so that the only issue before the jury would be whether either Mr Pope was being dishonest in saying that he had had a conversation with this appellant, or, (which in reality could not be credible in circumstances in which, as Mr Pope described, the appellant came on to his balcony), Mr Pope had made a mistake as to with whom he was talking. The judge in his ruling spelt out in detail the basis on which he was of the view that this was a case in which Mr Pope knew the appellant and in which thus the real issue before the jury would be one of honesty. He also set out in detail the circumstances in which the identification issue had arisen.

[62]The position ultimately is summarised as follows:- “The matter has to be dealt with cautiously. That is why I have at length gone through the evidence of recognition. I am quite satisfied this is evidence of a recognition case. There is other evidence supporting the recognition and it is appropriate therefore in my judgment to allow Mr Muller to ask the witness if he can see in court the person about whom he has given evidence.”

[63]The judge then referred to the fact that Mr Rumfitt would still be able to challenge the evidence of Mr Pope, but on the basis of Mr Pope’s honesty as to whether he was being honest when he said it was the defendant with whom he had the conversation.

[64]In our view the judge was entitled to take the view that this was a case where Mr Pope would have recognised the appellant in any form of identification process. In those circumstances he was entitled to allow the identification that took place in this case in the particular circumstances of it. The cross-examination by Mr Rumfitt, as quoted in paragraph 58 above, confirms the judge was right.

[65]Mr Kamlish’s further submission was that it was unfair because of its dramatic effect and because until that evidence was given the jury would not know that it was actually the appellant about whom Mr Pope was giving the evidence.

[66]We believe that Mr Kamlish overplays the dramatic effect. This was not a case of a witness identifying for the first time a defendant who it was suggested had actually committed the crime. This was evidence about one conversation where the witness had explained how well he knew the appellant and it would be of no surprise to the jury that the witness identified the appellant in the dock. The critical issue was whether the conversation took place, or whether Mr Pope was a dishonest witness. It must be accepted that this evidence did conclusively demonstrate about whom Mr Pope was talking but, provided the evidence was such as to allow the judge to take the view that this was a recognition case in the sense that the appellant would have been picked out on any identification parade or any other form of identification procedure by Mr Pope, that does not create any unfairness.

Visitors’ Book

[67]We should mention before expressing our final conclusion that there was an attempt to put in fresh evidence in relation to a visitors’ book at a hotel said to show that the appellant could not have been where Mr Pope said he was at the time of the alleged conversation. The Crown would have put in evidence challenging the authenticity of the entry. It is sufficient for us to say first that even on looking at the entry there was a lack of credibility about it, but more important there was no explanation as to why if this evidence was relevant it could not have been produced at the trial. We therefore refused permission to admit that evidence

Conclusion

[68]We conclude that neither of the grounds of appeal provide any basis for doubting the safety of the conviction. This appeal must be dismissed.