Shervington, R. v [2008] EWCA Crim 658

Case No 200705759 D1[2008] EWCA Crim 658
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 12th February 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE THOMAS
MR JUSTICE KING
THE COMMON SERJEANT
HIS HONOUR JUDGE BRIAN BARKER QC
(Sitting as a judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrownv
Between
SAMUEL AMOS SHERVINGTON
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 D Rhodes appeared for AppellantMr M C Aston appeared for Crown
Judgment

LORD JUSTICE THOMAS:

[1]In the early hours of 27th December 2006 Mr Mfinanga, the complainant in this matter, was walking along Great Western Road towards Westbourne Park Road in West London. As he turned into Westbourne Park Road he was attacked by three males who demanded money from him, and one, referred to as "Male 2", hit him with a vodka bottle. As a result he sustained cuts above the left eye.[2]Some two and a half months later, that is on 14th March 2007, the complainant identified the appellant as Male 2 at an identification parade.[3]The trial was held in the Inner London Crown Court before Mr Recorder Bueno QC and a jury in September 2007.[4]The defence case was that the identification was mistaken and an alibi was put forward.[5]At the conclusion of the prosecution case a submission was made of no case to answer, but the judge rejected it. The appellant then gave evidence of what he had been doing that evening and called two witnesses. The judge then summed the case up to the jury after counsel's speeches and the jury returned a verdict of guilty after a retirement of 68 minutes.[6]The appellant was then sentenced to 18 months' detention in a young offenders institution on counts of attempted robbery and assault occasioning actual bodily harm.[7]He appeals with the leave of the single judge on two grounds: first, that the judge should have ruled that there was no case to answer and, secondly, that the judge, in the way in which he summed the case up, although he gave the standard Turnbull direction, diluted that to such an extent that the direction was almost worthless by remarks made both before and after the giving of the direction.[8]The evidence of the complainant was that he saw three males outside a pizza parlour on the opposite side of the road. He heard them talking loudly and it appeared the group were saying goodnight to each other. He said that one of the males across the road walked towards him, put him arm round him and asked for some "smokes". The complainant said he had none. The other males also crossed the road. He kept walking in the same direction towards Notting Hill and the first male continued to follow him. These males went over to his left hand side; the four of them were then walking abreast. He was then asked by the first male whether he had any small change. The other males were quiet and did not say anything at this stage. Again he apologised and explained he had no spare change, then told them that he did have some but he did not want to give it to them. At this point he felt uneasy and uncomfortable as he was surrounded. They kept asking for cigarettes and money. In an attempt to try and deflect them from pursuing this he took from his inside coat pocket a small bottle of vodka. His girlfriend, her friend and another friend of theirs had each had some vodka and cokes earlier that evening. There was some vodka left in the bottle which he estimated to be between a quarter and a half as they had only had a couple of drinks each. As he was offering the bottle to them, Male 2, standing on his left, grabbed it and said "I'll have that". The second male backed off to a distance of about four feet. From that distance he could not reach the bottle.[9]He kept on walking and the three males continued to walk with him. The first male asked him again for money. He felt this was not right and told them he did not have any money. He said "Sorry man, I don't have no change". At this stage the first man grabbed both his shoulders from behind and tried to pull off his leather jacket. The first male did this with some force. He was wearing bulky clothing and the jacket did not come off. As the male was drunk he slipped and fell to the ground. This happened immediately after the vodka bottle had been snatched from him by Male 2. After this they demanded money. He turned round instinctively though his feet were still facing forward. As he did so Male 2, who had the bottle, hit him with a full swing above his left eye. When he did so the second male was still standing to his left and came at him from the distance of about four feet. Male 2 jumped at him and for a split second everything came to a stop. He thought the second male was surprised that he remained standing as he had been hit with his full might.[10]He immediately left the scene as fast as he could. He sprinted 60 metres until he was out of breath and could not run further. He turned round to see whether the group of young men chasing him. The first male was sitting down.[11]He then described the lighting. It was quite bright. It was quite a big road and the lighting was good enough to read by. The pizza parlour had their lights on and he had no difficulty in seeing persons close to him. He had the best opportunity and every conceivable incentive to look carefully at the man who struck him. He was absolutely certain that the man who struck him with the vodka bottle was the appellant. The second male did not seem English but he could not trace the accent. He thought it was foreign, maybe Albanian, but that was a guess. He could not identify the third male with any certainty. He was completely sure that the appellant was the man with the bottle. The second male was the male he identified at the parade.[12]When he was cross-examined, he was asked about the 999 call he had made to the police and conversations he had had previously with the police. In the 999 call at 2.08 am on the morning he was attacked he described Male 2 as being white, heavy built with facial hair. In his first description to the officer at 3 am that morning he had said that Male 2 was white, with a round face, a light moustache and quite chubby but not obese. In his witness statement three weeks later this had changed from white to olive-skinned, possibly Albanian or Turkish, with a dark coloured moustache. He was adamant, however, that his identification of the appellant was correct and he could not have been mistaken. After Male 1 had attempted to pull his jacket off, Males 2 and 3 were much better in his vision at that stage than Male 1. He concluded his evidence by saying that "he [the appellant] was so clear, I am not mistaken, I am as sure as I can be".[13]A police officer was called to give evidence about the lighting in the street.[14]At the close of the prosecution case, as we have stated, a submission of no case to answer was made; we shall return to that in a moment.[15]The defence case can be summarised briefly. The appellant was half Caribbean, half white. He gave evidence he had been by himself from about 10 pm that evening and he gave a description of what he had done. His account was supported by his sister's boyfriend who was at home with him and by his mother.[16]That is a sufficient summary of the evidence in the case. We turn to the two issues that arise.[17]The first relates to the question of whether there was a case to answer. The importance of the judge considering the position at the close of the prosecution case in an identification case was in itself made very clear in Turnbull [1976] 63 Cr App R 132, and emphasised again in the decision of this court in Fergus [1994] 98 Cr App R 313, where Lord Justice Steyn (as he then was) set out the very heavy duty that rests upon a judge to consider the matter very carefully. It is, in essence, the duty of a judge, where the quality of the identification evidence is poor, to withdraw the case from the jury and direct an acquittal unless there is any other evidence that supports the correctness of the identification. In this case there is no other evidence and the issue that the learned judge had to consider during the course of the submissions was the question as to whether the identification evidence was poor and therefore whether the case should have been withdrawn from the jury and an acquittal directed.[18]In support of the submission that the judge should have withdrawn the case from the jury a number of points were made. First, that there was a considerable passage of time between the identification parade and the offence, a period of some two and a half months. Secondly, the incident lasted from about 30 seconds to a minute. That is not in dispute. The issue arises as to whether that was adequate. Next, it is pointed out that plainly there was more than one person involved in this incident. Male 1 appeared to have been making much of the action. The question was therefore rightly put, was the complainant so sufficiently distracted by this that he did not have a proper opportunity to identify the appellant? Next, there was the lighting. Furthermore clearly this was also a case where the appellant was a person that was unknown to the complainant. As we have set out, the appellant, on his own account, had been drinking. There are the points to which we have already referred on the inconsistency in the description. Then there is a point on accents, the complainant saying that he thought Male 2 had an Albanian or other accent that was not English.[19]The judge's reasons cannot be described as grappling with these issues. The transcript is poor, but it is self-evident that the judge did not attempt to analyse what had happened. This was wrong. At this stage in the case, in a matter that is important, the judge should have set out his reasons for allowing the case to proceed. It was, in our judgment, very unfortunate the judge did not do that, but the fact that he failed to reason his ruling is not in itself a ground for saying that the ruling should be set aside and an acquittal directed. We have to ask ourselves the question: did the judge err in his approach or reach a decision that was not within the ambit of decisions reasonably open to him?[20]It seems to us that although there were serious points that had been made carefully and cogently by counsel on the appellant's behalf, this was a case where, looking at the matter objectively, the judge was entitled to conclude that there was sufficient evidence for the case to proceed to consideration in due course by the jury. It seems to us that it is in fact obviously right that the passage of time between the identification parade and the offence and the fact that the complainant was identifying a stranger were factors that weighed in favour of saying there was a doubt as to whether this was a sufficient case as to whether the evidence was strong enough to go to a jury. But on the more crucial factors, we think that there was, in the light of the fact that the identification was at very close proximity and in the light of the fact that the lighting was such that it was possible to read by it. We also take into account the fact that on the evidence it appears that the appellant had drunk very little himself, and certainly there is no evidence that his ability to identify and describe someone was impaired. The inconsistencies on the description are not that serious, particularly bearing in mind the time at which the 999 call was made. As to the mistake on accent, it is clear that only three words were said, "I'll have that", and so the fact that he made a mistake as to the accent is, on analysis, not a powerful point.[21]We therefore consider, despite the heavy onus that rests upon a judge, and despite the judge's failure to deal with the matter properly, that this was a case where it was right to leave the case to the jury.[22]We therefore next turn to consider the way in which the judge directed the jury. It should by now, we trust, be self-evident to any judge that the collective wisdom of many years has gone into drafting the standard JSB direction. There is always a need to ensure that where a JSB direction is used it is appropriately tailored, but it is rarely appropriate to depart in the way this judge sought to do from the basics of that direction.[23]In submissions to us, Mr Rhodes on behalf of the appellant, has identified what the judge did in very clear terms. First, before giving the direction the judge prefaced it by a passage in which he tried to point out that the jury must approach the matter with common sense. He concluded this passage by saying:
"You must not allow an oversophisticated approach to the evidence relating to the identification to become, as Mr Aston [counsel for the Crown] has described it, 'a mugger's charter'. Having said that, I do emphasise, as I will now explain, the need for special care."
Those remarks were made before the learned judge proceeded to set out his direction. When he concluded the direction he said:
"Bear all these points in mind, and as prosecuting counsel have told you, be sensible. Bring your common sense to bear on this evidence, and indeed on all the evidence that was been given in this case."
[24]We were taken then to other passages in the summing-up where the learned judge emphasised the importance of the fact that the complainant had given convincing evidence. We think it is only necessary to refer to one of those passages by way of illustration. That is the concluding passage in his summing-up:
"You have on the one hand the prosecution evidence, first the very clear and very emphatic evidence of identification given by [the complainant], who would not be shifted at all. Secondly the prosecution rely upon the fact that the defendant was given an opportunity to explain himself but declined to do so (and again you will bear very much in mind the direction I gave you about that), the golden opportunity to clear all of this matter up. They say, pointing to that, that this undermines the remainder of his evidence, and that it means you really cannot have any confidence in it. The defence, on the other hand, say no, and you must bear in mind all the warnings that I gave you in relation to your approach to visual identification. I said that there are a series of factors there, which undermine the quality of that identification. The defence also say that whatever criticisms can be made for the defendant's failure to respond to the questions at the time that he was interviewed, he was nevertheless 17 years old at the time, and he had legal advice to make no comment. The defence say that that is, in the circumstances, a reasonable excuse for his failure to disclose any of the details of the alibi which he has now advanced in this case."
[25]In our view, it was plainly inappropriate for the judge to have referred to the words "a mugger's charter". Secondly, it was very unwise of the judge to have departed from the Turnbull direction by prefacing the Turnbull direction with the passage he did. The JSB direction is, as we have said, the product of the collective wisdom of many judges and it is, in our view, wrong for a judge to seek to add his own gloss upon it. It should not be done. But the question that we have to ask ourselves is: reading the transcript of the summing-up as a whole, was the clear Turnbull direction that he gave in effect watered down by the preface and other passages, examples of which we have given? Before answering that question we turn to two other complaints made.[26]First, it is said that the judge failed to emphasise the fact there was no supporting evidence. We have already set out the fact that there was none, but the judge did tell the jury that the case depended wholly upon the correctness of the identification and it seems to us that was sufficient to tell them there was nothing else to support it.[27]Secondly, it is said that the judge commented unfairly on the various points that had been made and which he set out which went to the weakness of the identification evidence. We think it is only necessary to give one illustration of that. One of the weaknesses, as we have already said, was that the complainant had said the accent was not English. The judge commented as follows:
"He said he did not seem English, he could not trace the accent, but he thought it was foreign; 'maybe Albanian', but this was a guess. On any showing, members of the jury, very little was said, it seems, by Man 2. More of the speaking was done by Man 1. Bear that point in mind as well"
. It seems to us that, providing a judge approaches the matter with care, he is entitled to draw to the jury's attention what might be said about the weaknesses that he has identified, but it is plainly something that a judge must approach with great care.[28]We therefore return to the question of whether, by reason of the fact that the judge made comments such as the one we have given by illustration, that he inserted the preface and that he put emphasis on the certainty of the complainant's certainty, the summing-up, read as a whole, diluted the effect of the Turnbull direction. Although, as it is clear from what we have said, the judge was unwise to have summed the case up in the way he did, and was singularly unwise to have ignored the collective wisdom set out in the JSB direction, we have come to the conclusion, not without hesitation, that the summing-up in this case did sufficiently set out the direction on identification and that consequently the matter was put before the jury in a fair and proper way. We have addressed the question as to whether this conviction was safe. In all the circumstances we think that it was, and therefore the appeal must be dismissed.