Moorcroft, R. v [2007] EWCA Crim 2896

Case No 200701652 C3

[2007] EWCA Crim 2896

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday, 20 November 2007

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE KEENE

MR JUSTICE OPENSHAW

MR JUSTICE IRWIN

Between

R E G I N ACrown

Between

PETER MOORCROFT

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MISS K HODSON appeared for Appellant

MR HWR BLACKSHAW appeared for Crown

Judgment

LORD JUSTICE KEENE:

[1]On 23 February 2007, at the Crown Court at Manchester before HHJ Thomas QC, this appellant was convicted of sexual assault of a female under the age of 13. He was subsequently sentenced to a two-year conditional discharge.

[2]He now appeals against that conviction by leave of the Single Judge. That leave was granted on only some of the grounds put forward. The complainant in the case, whoM we shall call L, was a girl who was 12 years old at the time of the alleged incident. She, on 10 August 2005, visited a roller-skating rink in Stockport with a number of other children, who had been at a school-holiday club. The manager of that club was with them, a woman called Emma Kneale, as were other members of its staff, including Jenna Stevens and Emma James. The appellant was there because he ran the roller-skating rink.

[3]The evidence put very briefly was that in the course of her time at the rink the complainant, L, told several people that a member of the rink staff had put his hand down the back of her pants and Knickers as she walked past him. In her evidence L said that just after the incident she turned and looked at the man and he was looking at her, although she had agreed in cross-examination that it was a very quick look. At another point in her evidence she described him as looking at her and then looking away.

[4]One of those who she told was Emma James, who asked her where the man was now. The complainant replied that he was in the DJ box at the rink and she pointed him out. This was about 10 to 15 minutes after the incident itself. According to Emma Kneale, the complainant pointed the man out to her as well shortly afterwards and she videoed him on her mobile phone. That videoing took place in the café to the rink.

[5]The complainant in her evidence described the man as wearing a darkish blue shirt, as being in his 50s with greyish hair and with a pair of glasses in his shirt pocket. She said that she had first seen him serving in the café with another man who was wearing glasses. He had then gone over to the side of the rink which was where the assault occurred as she was walking past him on her skates.

[6]When she gave an account the day after the incident to a police officer, he noted down the words "glasses, white man" and took that to mean that the offender wore glasses. Another worker from the rink, a Mr Appleyard, who did wear glasses, was subsequently arrested but was not then identified by the complainant at an identification parade and he was released without charge. The appellant, however, was identified by the complainant at an identification parade in December 2005. In the course of her evidence she said that she had known straightaway that it was him.

[7]The appellant also gave evidence. He agreed that he was at the rink at the time in question but he denied that he had committed any such assault. He was a person of good character.

[8]Most of the grounds on which leave has been given to appeal concern the issue of identification. Although there is finally a ground asserting a lurking doubt about the safety of the conviction, the main thrust of the submissions, on his behalf, do relate to the identification evidence and process. The appellant criticises the way in which the judge summed up the issue of identification for the jury. It is said that he did not remind the jury of specific weaknesses surrounding the complainant's initial observation at the time of the incident. That initial observation, says Miss Hodson, who appears on behalf of the appellant, was the crucial first stage on which all else depended. It was only a brief glance. The lighting was, to some extent, dimmed and to the police she had said that she had not looked back. The defence case was that this was a fleeting glimpse case and yet the judge told the jury that it was not. Thus he undermined the Turnbull direction.

[9]Furthermore, argues Miss Hodson, the judge played down the significance of the complainant's evidence that the man had had glasses in his shirt pocket, whereas the appellant did not wear glasses. All in all there was a failure to follow the approach to identification evidence required by the decision in Turnbull

[1977] 1 QB 224

[10]We note what the judge did say in summing-up on this aspect. He referred to the issue of identification and began by saying this, at page 8 of the transcript:

"It is right that, in any case where the issue of identification arises, there is a need for a judge in his summing-up to deal with it and the reason why that is the case is because experience has shown, from cases over many years now, that there can be mistakes made by witnesses, who are doing their honest best to give evidence about an allegation to a jury, that mistakes can be made with identification. Again, this may be common sense in many, many ways, but we have all got experience of mistakes with some sort of recognition and identification and we can all imagine, perhaps at one extreme of a criminal trial, the bank robber fleeing from the bank and you or I walking down the street doing our shopping and seeing the man run out and run round the corner and we may, if one was to put a clock on it, have seen him for a second or two. That sort of (we call it) fleeting glimpse type case, we can see how mistakes can very readily creep in there, especially if, between seeing the man running round the corner for a couple of seconds and perhaps being asked by the police to go to an identification procedure six months, nine months, a year later, or whatever..."

He then went on to refer to the need for the jurors to bear in mind the circumstances in which the sighting was made, referring to factors such as the distance between the two people, how light it was, whether anything got in the way or diverted the witness's attention, the time gap between the first sighting and the actual identification, and then the description given by the witness initially of the person in question. The judge did draw attention to the complainant's evidence about glasses in the man's shirt pocket and to the evidence that the appellant said that he did not wear glasses, although it is right to observe that he said that he had in fact sometimes worn sun-glasses on holiday.

[11]What is true, as Miss Hodson emphasises, is that the judge did not specifically remind the jury of the particular factual circumstances of the sighting by the complainant at the time of the incident. No doubt it would have been better if he had done so. However, this was a relatively short trial, beginning on a Monday and with the judge summing-up on the Thursday. He had specifically directed them, as we have indicated, to take into account such matters as distance, lighting, the length of observation, and so on. When we put those two elements together we do not regard this aspect of the summing-up as calling into question the safety of the conviction.

[12]Nor, in our judgment, was this truly a fleeting glance case. First because the complainant had already seen the appellant shortly before this incident, working in the rink café. We are satisfied that that was her evidence and that she regarded him as the man who was the person who committed the assault on her. It also follows from that that she was identifying the man in question as a member of the rink staff. Secondly, as the judge pointed out, once one has got to that stage it becomes what he called "a limited cast case" with a limited number of people against whom the allegation could lie. In the end it came down essentially to one of the two men working in the café where the video film was taken, those being the appellant and Mr Appleyard. The complainant distinguished between those two men in the café as "one with the glasses" and "the other one who put his hand down the back of my pants". That pointed clearly towards the appellant. In our judgment the trial judge was entitled to distinguish this from the classic fleeting glance case where a witness only sees the suspect for a few seconds in total.

[13]It is also submitted that the judge went wrong in failing to warn the jury that the complainant might have picked out the appellant at the identification parade simply as a result of having seen him at the rink. Miss Hodson emphasises that the complainant had seen the appellant after the assault and that may have been why she picked him out subsequently at the identification parade. She may, it is said, have convinced herself that it was him. However, as Mr Blackshaw points out in his written submissions, the complainant had not picked out Mr Appleyard at the previous identification parade, even though he too had been seen by her at the rink and had been one of the two men in the DJ box. We can see no force in this limb of the argument.

[14]It is further submitted that the tenor of the summing-up made clear the judge's view on the identification issue. Miss Hodson draws attention, in particular, to what

the judge said at the top of page 13 of the transcript where one finds this passage:

"So be alive to identification as an issue and the sort of dangers that are attached to it but, in the reality of this case, how far does the issue of dangers of identification really go, you decide."

We do not regard that as going beyond the proper bounds of the area of comment legitimately available to a trial judge. He was, no doubt, giving some implied indication of his own view to the jury, but in the usual way he indicated to them that the issues of fact were for them to decide and not for him. We do not regard this as casting doubt upon the safety of the conviction.

[15]It is also said that the conviction is undermined by the number of times that the video taken by Emma Kneale was played to the jury. In total, it seems, it was played some eight times with the scene being shown twice on the video, once in a smaller version and then in a larger and somewhat enhanced version. It is contended that this may have suggested that the video was especially important and that this prejudiced the appellant. We cannot agree.

[16]It is understandable that the video was played a number of times. First of all, it is not very easy to discern precisely what is being shown in the video. It is, of course, not like a still photograph over which the jury could pore. It needs to be played several times if one is to make out what it shows.

[17]Secondly, until the appellant accepted in cross-examination that he was the man in the blue shirt shown in the film, there could well have been an issue as to whether it was him. Once he had admitted that he was one of the two men shown in the film, the issue became whether he was the man pointed out to Emma Kneale by the complainant. The judge properly identified that issue for the jury and did so in clear terms at page 13E of the transcript. Emma Kneale's evidence was quite clear that he was the man pointed out to her by the complainant and it seems to us that it was open to the jury so to conclude.

[18]Apart from those submissions on the issue of identification, the appellant also puts forward a ground to indicate that there ought to be some lurking doubt about the safety of this conviction. In support of that, Miss Hodson refers both to the identification issues, which we have just dealt with, and also to a number of other matters. For example, she stresses that this was alleged to have happened in a public place. The complainant was a 12 year old girl who, in some accounts that she gave, was unsure whether or not it may have been accidental, and there were some discrepancies in the accounts which she gave at different times.

[19]It seems to us to that all of those are factors which really go to her credibility and to the accuracy of the evidence which she gave. The jury heard her, as they did the appellant. They believed her evidence and they were sure that the appellant was the person who had committed this sexual assault on the complainant. The case turned on that credibility. We can see no reason to believe that the jury erred in the verdict at which they arrived.

[20]It follows that this conviction is not unsafe and the appeal must therefore must be dismissed.

[21]MR BLACKSHAW: In the circumstances I am instructed to apply for costs for the respondent.

LORD JUSTICE KEENE: Yes, Miss Hodson?

[23]MISS HODSON: The appellant has appealed on advice and was granted leave by the Single Judge. I invite your Lordship's to consider whether it is necessary to order him to pay further costs in this case, bearing in mind that there was a financial penalty of £3,500 in the lower court.

LORD JUSTICE KEENE: Yes.

[25]MISS HODSON: Can I also indicate to your Lordships that the appellant himself is currently in receipt of benefits. He is in receipt of sickness benefit. He had to cease work as a result of depression that was brought on following these proceedings. He has also, since then, been diagnosed with a pulmonary disease and he is awaiting the outcome of an application for incapacity benefit. He and his wife sold the business as a result of, and following, this case.

LORD JUSTICE KEENE: They sold the business for how much?

[27]MISS HODSON: Would your Lordship allow me to take instructions, please? (Instructions taken) It was sold for £25,000 and £12,000 was owed to the landlord.

LORD JUSTICE KEENE: Do you mean that £12,000 comes off the £25,000?

[29]MISS HODSON: It does, yes.

LORD JUSTICE KEENE: Thank you. Mr Blackshaw, how much are you asking for? What are the prosecution costs?

[31]MR BLACKSHAW: £1,400.