Willis, R v [2006] EWCA Crim 809

Case No 200403819/C1[2006] EWCA Crim 809
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 17th March 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE MAURICE KAY
MR JUSTICE MCKINNON
MR JUSTICE LANGSTAFF
Between
R E G I N ACrown-v-
Between
LEOPOLD JUNIOR WILLIS
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR J DEIN QC appeared for APPELLANTMR N SWEENEY QC appeared for CROWN
J U D G M E N T

LORD JUSTICE MAURICE KAY:

[1]This appeal comes before us as a reference by the Criminal Cases Review Commission ("CCRC") under the Criminal Appeal Act 1995. It is one of a number of appeals in which convictions have been challenged on the basis that the original police investigators and a number of police witnesses at the trial were from the Rigg Approach Flying Squad, several of whose members have since been discredited to a serious extent. As

Judge LJ said in Crook [2003] EWCA Crim 1272 (paragraph 22):

"The lamentable history of the operations of the Squad [does not mean] that in every case in which a member of the Squad had given evidence or been involved in an investigation which resulted in a conviction, the conviction should be deemed to be unsafe."
Plainly each case has to be considered on its merits.[2]The appellant was convicted in the Central Criminal Court on 17th November 1995 of offences of having a firearm with intent to commit robbery (counts 1 and 2), murder (count 3), and robbery (count 4). His co-accused, Shiraz Bhayat and Neville Andrews, were convicted of the same offences at the same time. On 20th March 1996 the single judge refused leave to appeal in all three cases and renewed applications were similarly refused by the Full Court on 18th October 1996. It is beyond dispute that the convictions came at the end of a properly conducted trial and that at the time of the refusals of leave to appeal the proffered grounds of appeal had no prospect of success. However, yesterday we concluded and announced that the new material, which forms the basis of the reference by the CCRC, is such that the convictions of this appellant can no longer be regarded as safe. We allowed his appeal and quashed his convictions. We now give reasons for that decision.[3]The events with which the trial were concerned occurred on 1st September 1994. They took place at a jewellery shop in Ilford owned by Mr Chokshi. Three men committed a robbery in which jewellery to the value of £15,000 was taken. One of the robbers was carrying a revolver and another had a loaded sawn-off shotgun. At the time, Mr Chokshi was in the shop along with Mr Leyland Hoppie. Mr Hoppie was there to repair the video security system. He was shot in the back at close range as he lay face down on the floor. He died almost immediately.[4]At trial the case for the prosecution was that Bhayat was the robber with the revolver. He was a young Asian man who had attended the shop a week earlier. The second unarmed robbery was Andrews, a young black man in a hooped shirt, who had come into the shop earlier in the day on 1st September along with Bhayat. The third robber, who had the sawn-off shotgun and used it to kill Mr Hoppie, was another young black man, alleged to be this appellant. The incident was recorded on the repaired video security system. It produced good images of Bhayat and Andrews, but the images of the third man were of much poorer quality. Bhayat and Andrews were arrested on 26th September 1994. They were each picked out by Mr Chokshi on identification parades held on 27th September. In each case Mr Chokshi declared himself to be "100 per cent certain".[5]So far as the third man was concerned, Mr Chokshi had seen less of him in the shop. Whereas Bhayat had been in the shop a week before and also earlier in the day on 1st September, and Andrews had been with Bhayat on the second of those occasions, the third man only attended on the occasion of the robbery. Mr Chokshi's evidence was that he had seen the third man enter and he had faced him across the counter for 30 seconds, although he later conceded that the duration was probably shorter. He said that he had watched the third man carefully because he had felt uneasy and had a fairly good view of him as he went towards the window.[6]On 27th September Mr Chokshi attended an identification parade at a time when another man, not this appellant, was suspected of being the third man. On that occasion Mr Chokshi picked out an innocent volunteer as the third man. At a further identification parade on 15th February 1995, where the appellant was the suspect, Mr Chokshi picked him out immediately. His evidence at trial was that the appellant's face had "struck him like a bolt from the blue". He said he was 100 per cent sure on this occasion in a way that he had not been on the previous occasion.[7]It is common ground that it was Mr Chokshi's identification evidence which provided the basis for the conviction of the appellant. We shall return to the weaknesses in that evidence and to the limited supporting evidence later. At this point we simply record that leading counsel then representing the appellant, Mr David Elfer QC (later His Honour Judge Elfer, now sadly deceased) made an unsuccessful submission of no case to answer. The appellant did not given evidence before the jury. Nor did Andrews. Bhayat gave evidence in the form of an alibi.[8]The evidence at trial was that the sawn-off shotgun was recovered from a man called Williams, an associate of the appellant, on 1st April 1995, but he was later acquitted of an offence in relation to it.[9]It is next necessary to describe the way in which the appellant's case was conducted at trial. The appellant having waived privilege, we have been able to see some of the contemporaneous documents which cast light on the way in which his case was conducted. The appellant and his legal advisers were concerned from a very early stage about the identification evidence. They were concerned about the possibility that Mr Chokshi may have been shown or may have seen a photograph of the appellant before the identification parade on 15th February. Indeed, at an old-style committal Mr Chokshi had been asked that very question, but he had said that he had seen no such photograph.[10]The appellant's junior counsel at trial was Mr Andrew Hall (now Mr Andrew Hall QC). Following the committal, on 14th May 1995, he had expressed concern about the possibility that police officers had primed Mr Chokshi before the identification parade. In another advice, on 8th June 1995, in the same context he referred to the extensive contact between Mr Chokshi and the investigating officers. In the Brief to Leading Counsel, dated 2nd June 1995, the appellant's solicitor expressed concern about aspects of the identification evidence and priming, adding:
"Clearly photographs of Willis were available from early in the enquiry. Was a picture shown to the witness?"
These concerns created a dilemma for the defence team. The appellant had significant previous convictions including for robbery. There was a natural concern, if at all possible, to keep his previous convictions from the jury.[11]At the trial there was an issue as to the admissibility of evidence of events surrounding the arrest of the appellant. Accordingly, a voire dire was held. Detective Sergeant Retallick, the officer in the case, described the arrest which had taken place in the flat of the appellant's sister. He attributed some remarks to the appellant which were incriminating. He said that a police photographer, Detective Constable Sweetman, arrived, whereupon the appellant buried his head in his knees and refused to show his face to permit photographs to be taken. He said:
"DS Sweetman again tried to take pictures of him, but he threw himself to the floor right into the corner by a wall and some cupboards and eventually I clamped his head between the lower part of my legs as he was lying on the floor and he took some pictures of him in that position."
[12]He stated that it was often the practice in the Squad to take photographs at arrest, partly in order to show whether there were any injuries on the suspect at that time. In cross-examination he denied that he told the appellant that he was to be placed on an identification parade. He further denied that the police had primed Mr Chokshi in any way or that he had been shown a photograph of a type produced to the officer in the witness box. That photograph was in the form of a "wanted" poster depicting the appellant. It was derived from the photograph on the appellant's membership card for a leisure centre in Hackney. The "wanted poster" was an internal police document. Detective Sergeant Maher gave evidence that he had made a contemporaneous note whilst in the flat.[13]The appellant gave evidence that immediately after his arrest Detective Sergeant Retallick had said to him:
"You are going on ID tomorrow and you are going to get picked out."
He disputed that Detective Sergeant Maher had maintained a contemporaneous note.[14]The judge did not accept that the note could be replied upon as comprehensive. He also found that force had been used in order to take photographs and that that was a breach of the Code of Practice under the Police and Criminal Evidence Act 1984. Because he was not satisfied about the recorded account of what had been said prior to the arrival of Detective Sergeant Sweetman, he excluded the evidence under section 78 of the Police and Criminal Evidence Act. It is abundantly clear from the transcript that Mr Elfer's approach in the voire dire took the form of a robust attack on the officers with unequivocal allegations of impropriety and lies. It is equally clear that the possibility of Mr Chokshi having been shown a photograph was canvassed.[15]Once the evidence of the arrest had been excluded, the case before the jury proceeded in a restrained way. It seems that it was considered likely that the appellant would give evidence. His legal advisers were concerned to ensure that if he were to do so he should not be exposed to cross-examination about his previous convictions.[16]We are assisted by a document prepared by Mr Andrew Hall on 22nd July 2001. Having recalled that the appellant was preoccupied at the time of the trial with the idea that Mr Chokshi had indeed been shown a photograph of him prior to identification, Mr Hall adverted to the obvious forensic and tactical difficulties. He stated:
"The head-on attack upon the police would have given rise to an application to introduce the defendant's previous record of criminal convictions which would have been difficult to resist. ... It is difficult, on reflection, to consider how else the matter could have been approached by trial counsel in the absence of any material upon which a positive assertion of impropriety could have been made. To have done so would have been forensic suicide."
[17]He then addressed the position as it would have been if the facts about corruption and misconduct had been known at the time. He stated:
"Had such material been available, it is beyond doubt that the Crown would have disclosed it to the defence in the light of the issue as to possible contamination and the use of photographs by police. In these circumstances, it is entirely likely that the forensic and tactical decisions described would have been approached from an entirely different perspective. In particular, it would have provided material to cast grave doubt on the probity of dealings between the investigating team and the key witness against Mr Willis. Such material undoubtedly might, and possibly would, have tipped the tactical balance towards a more forthright attack on the investigating team. ..."
[18]In other words, whilst an attack on the police without supporting material was likely to yield no immediate benefit and would lead to the detriment of the admission of the appellant's previous convictions, to mount an attack with positive evidence of corruption and misconduct would, or at least might, make the risk worth taking.[19]It behoves us to consider with care the extent to which the taint cast upon the Rigg Approach officers impacts upon the present case. Following extensive investigations, Rigg Approach officers have been put into different categories. 25 officers, known as Category A, would no longer be advanced as witnesses of truth in any case in which they had played a part. There are seven such officers who were involved to a greater or lesser extent in the investigation in the present case. They include Detective Chief Inspector Fry, who was in overall supervisory charge of the investigation, Detective Constable Saunders and Detective Constable Carroll.[20]There is a second category, known as Category B, who are considered to be the subject of a "general taint". The criterion which they satisfy is that an inference could be drawn that they were aware of the existence of a bag containing a robber's kit which could be used to protect the position of an armed officer who had shot a robber in good faith, or to enhance a case, but they had done nothing to prevent such malpractice and might be taken to have acquiesced in it. Five of the officers involved in the present case fall into that category. They include Detective Sergeant Retallick and Detective Sergeant Maher.[21]Of the Category A officers, Detective Sergeant Carroll had extensive contact with Mr Chokshi between 1st September and the arrest of the appellant. This included the taking of three witness statements. He gave evidence at trial, but not on a contentious issue. Detective Sergeant Saunders recovered a copy of the Daily Mirror from the appellant's girlfriend's address on 4th October 1994. It was the edition of 2nd September 1994 and, according to Detective Constable Saunders, it lay open at the page containing a report of the robbery and murder which had taken place on the day before publication. He did not give evidence at the trial because the finding of the Daily Mirror in that place, at that time and in that state became the subject of a formal admission.[22]As to the Category B officers, we have already related that Detective Sergeant Retallick was the officer in day to day charge of the investigation. He was present at the time of the recovery of the Daily Mirror. We have referred to his evidence on the voire dire about the arrest of the appellant and the surrounding circumstances.[23]On behalf of the prosecution, Mr Nigel Sweeney QC (who also prosecuted at the trial) frankly concedes that if the defence had mounted a robust attack on the police in an attempt to demonstrate that Mr Chokshi had been primed, whether by being shown a photograph or otherwise, the prosecution would have called a number of officers to refute the allegation and these would have included Detective Sergeant Carroll, a Category A officer.[24]It seems to us that it is also reasonably likely that if the defence had known what we know now the formal admission in respect of the Daily Mirror would not have gone as far as it did. It was not made on the basis of the personal knowledge of the appellant. It seems that his girlfriend, although this was not before the jury, has accepted ownership of the newspaper, but has since disputed that it was open at the incriminating page when it was seized. On present information, we doubt that the formal admission would have extended to the open page. If that is so, the prosecution would have had to have called another Category A officer, DC Saunders, to prove it.[25]We ought to refer to the other evidence in the case. We have already noted that there were weaknesses in the identification evidence in relation to this appellant but not to the other two defendants. Mr Chokshi had previously wrongly identified an innocent man as the third man. Moreover, his identification of the appellant came some five months later.[26]The following points are also relevant. One of the first officers on the scene at the jeweller's shop was Sergeant Stacey. She made rough notes at the time or soon after her conversation with Mr Chokshi. He told her that he would definitely remember two of the robbers, but would only "maybe remember the third". He said that he could visualise the first two men, but not the third. On the initial police crime investigation report, so far as the third man was concerned it was recorded that the witness could identify the suspect "possibly". The CCTV film was of very poor quality and no safe conclusions could be based on it so far as the third man was concerned. Whilst not a "fleeting glance" case, the opportunity which Mr Chokshi had to form a clear picture was necessarily limited. In his first witness statement Mr Chokshi stated that the third man may have been carrying a bag. The video recording shows that this was not so. In none of his witness statements, or in his evidence-in-chief, did Mr Chokshi state that the third man had worn a baseball cap. Both at the committal and before the jury Mr Chokshi maintained that he could see the hair on the top of the head of the third man. He had described it as less than half an inch long at the top and cut close at the side. The fact, established by the video recording, that the third man wore a baseball cap throughout his short time in the shop raises obvious questions as to how Mr Chokshi came to give that evidence. Of course it is possible that he was simply mistaken or confused. On the other hand, if counsel for the appellant had been able to press the point about the possibility of a photograph having been shown to or seen by Mr Chokshi prior to the identification, the description of the hair of a man who had been wearing a baseball cap would have been grist to the defence mill.[27]What about the other evidence in the case? In rejecting the submission of no case to answer, the trial

judge said:

"The cumulative effect of various other small pieces of evidence, individually not perhaps of the greatest weight, do give some support to Mr Chokshi's identification."
[28]The evidence disclosed a history of association between the appellant and his co-defendants, but it did not include association on 1st September 1994, or in the period immediately preceding that day. The prosecution also relied upon the evidence about the Daily Mirror, upon the fact that the appellant had travelled to the United States of America on 2nd September 1994, had extended his plan to stay there and upon return had gone to live, not with his girlfriend, but at his sister's address.[29]The trip to the United States had been booked a considerable time before 1st September. It is plain from a perusal of the transcripts from the trial and from the hearing of the application for leave to appeal that neither the trial judge nor the Court of Appeal considered the supporting evidence to be of much weight. In view of what we have said about the Daily Mirror evidence, we consider that the weight of the supporting evidence may now be seen to be further reduced.[30]As has been clear in other Rigg Approach appeals, it is important that this court not only examines the role of tainted officers with care, but also satisfies itself that an appellant is not simply and opportunistically jumping on a bandwagon created by the Rigg Approach investigation. Both Mr Dein QC (on behalf of the appellant) and Mr Sweeney adopt the distinction which has been drawn in other Rigg Approach appeals between:(i) a case in which there was a dispute with the evidence of the relevant officers at trial, or in which there was dispute with the evidence of the relevant officers, but it was not pursued at trial for sensible tactical reasons -- which would have been viewed differently if the disclosures in relation to Rigg Approach had been known; and(ii) a case in which the appellant has sought to climb upon the bandwagon after discovery of the disclosures.[31]Like the CCRC, we are entirely satisfied (and Mr Sweeney does not dispute) that this is not a bandwagon case. That is apparent from what is known about the way in which the defence was conducted at trial and the way in which it most probably would have been conducted if defence counsel had been in possession of the material which has emerged from the Rigg Approach investigation.[32]We have considered this case in the light of previous judgments of this court in 11 other Rigg Approach appeals. We see a close parallel between the present appeal and that of Woodruff and Hickson (99/00240/00242/Y3, 3rd November 1999) in relation to the consideration of the inhibition upon defence tactics at trial, which inhibition would have been greatly loosened if the defence had known of the corruption and misconduct. We also detect a similarity between the present case and the appeal of Martin, Taylor and Brown (99/05979/05982/05983/S3, 12th July 2000) on the question of whether an identification witness had been shown photographs. So far as the appellant Taylor was concerned, he had been identified by a man called Baker. We refer to paragraph 22 of the judgment given by Henry LJ:
"At trial it was suggest to both Baker and McGuinnis [a Category A officer] that McGuinnis had shown Baker photographs of Taylor prior to the parade. Both denied the allegation. If the jury had known of the new material in respect of McGuinnis it may well have found the defence suggestion very much more attractive. Whilst Baker remains untainted as a witness, his evidence is tainted by support from McGuinnis. It follows that the new material would be capable of affecting the jury's assessment of the Baker's identification."
[33]We do not say that the present case is on all fours with any of the other cases. However, there are some similarities as to facts, issues and results. Like Mr Baker, Mr Chokshi is an untainted witness. What is more, he has reasserted his confidence in the identification and has continued to deny sight of photographs to the CCRC.[34]Nothing we say should be taken as casting any aspersion on him. What we have to do is to look at the convictions and new material so as to consider the safety of the convictions in the manner advised by Lord Bingham of Cornhill in Pendleton [2001] UKHL 66, [2002] 1 Cr App R 34 at para 19. When we do so, we are driven to the conclusion that the convictions must be considered unsafe.[35]After we had announced our decision Mr Sweeney rightly asked for a little time to consider whether to apply for a retrial. He later returned to inform us that no retrial is sought. We believe that forbearance to be based on sound judgment. Whether or not the appellant was the third man, must remain forensically unresolved.[36]Finally, we make this observation. We have referred to the enormous difference in quality between the identification evidence in relation to this appellant and the identification evidence in relation to the two co-accused. They were the subject of clear images on the video recording. It is unnecessary to refer to the other evidence against them in order to express the comment that it seems to us that evidentially their position was and remains very different from that of the appellant.