Wilson, R v [2008] EWCA Crim 1754

[2008] EWCA Crim 1754Case No 200704366/D3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 15th July 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE GAGE
MR JUSTICE SILBER
HIS HONOUR JUDGE RADFORD
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
JAMIE THOMAS WILSON
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr L Redhead appeared for AppellantMr K Volz appeared for Crown
J U D G M E N T
[1]MR JUSTICE SILBER: Jamie Wilson, appeals with leave of the single judge, against convictions which were recorded against him on the 7th and 8th June 2007 in the Crown Court at Wood Green. He was convicted of seven counts of robbery and one count of unlawful wounding. He received sentences of imprisonment for public protection, with a minimum term of 4 years less 212 days. His application for leave to appeal against sentence has been referred to the court by the single judge.[2]The facts of this case are that between 1st November 2006 and 4th November 2006 seven female complainants were robbed in the streets of Islington by a masked man carrying a knife. They could only see his eyes and the top of his nose.[3]On 7th December 2006 the appellant was observed by police officers in Goswell Road, London EC1. His clothing matched the description of the robber, in that he wore a baseball cap and a hood whilst the lower part of his face was concealed by a scarf. The appellant was followed before being stopped and searched. The police found under his top a large kitchen knife and a telephone. He was arrested on suspicion of robbery.[4]When he was interviewed the appellant said that he had no fixed abode. It was discovered that he lived in a flat not far from his arrest. When that flat was searched property belonging to three of the complainants was discovered there. At trial, the case for the complainant was that the appellant was the robber, while the case for the appellant was that he was not the robber and the descriptions from the victims did not match his. Particular emphasis was placed on the fact that none had mentioned that the robber had a strong Scottish accent. There is no doubt that the appellant has such an accent. Thus the issue for the jury was whether the appellant was the robber.[5]The victims all gave evidence explaining what had happened and they described their attacker. The defendant also gave evidence.[6]The issue on this appeal relates to the admissibility of the evidence of Miss Alexis Young, who was responsible for monitoring crime in Islington. The defence disputed the evidence could be adduced. It is the ruling of the Recorder at the trial that it could be adduced which is the subject matter of this appeal. The evidence of Alexis Young was that she had searched the police computer records for similar offences using two criteria, namely "robbery" and "mask" which brought up two other crimes, none of which were similar to the present offences. She also used a criteria "Islington", "lone white male 20 - 30" and "knife". These searches produced no results. She therefore concluded that no similar offences had been committed in the area between the date of the offence and 31st May 2007.[7]The challenge before the Recorder and us is that the evidence ought not to be admitted because it was nebulous and prejudicial, as it did not go to prove the identity of the robber. It was contended that there were other possible explanations for the absence of similar offences after the date of the appellant's arrest. Examples given were that the robber might have changed the area in which he committed the offences coincidentally at the same time; alternatively the robber might have later been in custody or in hospital.[8]The judge in ruling that the evidence of Alexis Young was admissible said, at page 5D, of the transcript:
"The evidence is potentially valuable if the jury accepts the inference that the prosecution seeks to draw from this evidence, but whether the jury does accept that inference is very much a matter for them and is well within the capabilities of a jury to judge. It is not the sole evidence relied on by the prosecution, but it is one of a number of pieces of potentially significant evidence relied on by the Crown in establishing its case. Ultimately, it will be for the jury to decide whether it does establish any supporting evidence for the identification of this defendant as the perpetrator of any these robberies."
[9]On this appeal Mr Redhead, who appears for the appellant as he did at the trial, repeats his submission that the evidence of Alexis Young should not have been admitted because it was not relevant. In his written skeleton he refers to cases on similar fact evidence. Mr Redhead submits that this evidence is highly prejudicial. The case for the prosecution is that the evidence of Alexis Young tends to support the correctness of the identification of the appellant as being the sole robber. In our view, the evidence of Alexis Young was probative on the issue of whether the appellant was the robber. Evidence would be helpful if the jury were speculating as to whether robberies might have continued after his arrest.[10]We asked Mr Redhead what the judge should have done, if there was no evidence of the kind adduced by Miss Young, but instead the appellant had wanted to adduce evidence that robberies in the area, of the kind allegedly committed by the appellant, had continued on a regular basis after his arrest. He was compelled to accept, quite rightly, in our view, that such evidence was relevant and was probative. We agree and the reason why the evidence would be admissible is for the same reason as the Recorder admitted the evidence adduced by Miss Young, as it was circumstantial evidence which could be put before the jury.[11]We do not accept the submission of Mr Redhead that such evidence would have been unfairly prejudicial. In our view, the defence at the trial were able to submit to the jury that evidence of Alexis Young was of no value because, for example, the real robber had either died, that he had moved area or that he had stopped committing robberies, or that he had had been arrested or imprisoned. In our view, it is important to bear in mind that the defence focused on the differences in description of the robber and that of the appellant. These arguments would, if accepted by the jury, have undermined, if not, negated all Miss Alexis Young's evidence. In our view, the judge and the jury was entitled to consider what inference, if any, it could draw from the evidence of Alexis Young and we therefore consider that the Recorder had not erred in making her ruling. We should add that no criticism is made of the way she dealt with this matter in the summing-up.[12]When we came into court today we were given a draft witness statement which had not been signed by Mr David Clayton, who is a solicitor, charged with the conduct of the appellant's case. It refers to various robberies having been committed in the Hornsey area, which is a distance of about 5.3 miles away from the area where these offences were committed. In our view, this evidence cannot be admitted. Firstly, the witness statement has not been signed. Second, there is no reason put forward why it has been adduced as late as it is, and third, we do not regard it as being sufficiently reliable or sufficiently credible as to have any effect on the outcome of the case, bearing in mind that it related to robberies over 5 miles away from where the robberies in this case occurred. We therefore dismiss the appeal against conviction.[13]The question of sentence has been remitted by the single judge to this court because the judge imposed a sentence for public protection in respect of count 6, which was for wounding, contrary to section 20 of the Offences Against the Person Act.[14]So far as the sentence on count 6 is concerned, we quash the sentence for public protection and instead we impose a sentence of 2 years with a 2 year extension. To that extent the appeal is allowed.