Jabar, R. v [2010] EWCA Crim 130

Case No 2009/4451/D2[2010] EWCA Crim 130
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 26 January 2010
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HOOPER
MR JUSTICE WYN WILLIAMS
THE RECORDER OF CROYDON
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
DARIA JABAR
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr D Brock appeared for AppellantMrs J Whitby appeared for Crown
J U D G M E N T

LORD JUSTICE HOOPER:

[1]On 28th July 2009 at the Crown Court at Harrow the appellant was convicted by a jury of robbery and was subsequently sentenced to four years' detention. He appeals against that conviction by leave of the single judge, Wyn Williams J.[2]On 1st December 2007 the victim of the robbery went into Ladbrokes and won in excess of £260. When she arrived in the hallway of the block of flats in which she lived, a man followed her in and robbed her of the money. The victim described the person as 23 years old, of white skin, with a square face, dark coloured hair and a wide jaw line. She described him as about five foot ten in height with a foreign accent. Subsequently she did not pick out the appellant on an identification parade. That description is a description which is consistent with a description of the appellant.[3]There was CCTV footage both of what happened in Ladbrokes and CCTV footage of what happened in the hallway of the block of flats. There was no dispute that the person who had robbed her in the block of flats had been in Ladbrokes and could be seen on the CCTV film. We shall call that person "the robber". The issue for the jury was whether or not the robber was this appellant.[4]We have looked at the CCTV evidence and we have looked at the stills which were taken from the CCTV images. In so far as the evidence about the robber in Ladbrokes, Mrs Whitby (who appears for the respondent) tells us that the best pictures are those of the stills from the video. In so far as the images of the robber in the hallway of the victim's block of flats, the best images she says are a combination of the CCTV at a time shortly before the robbery was completed and also still images taken from that CCTV.[5]PC Hasse investigated the matter and he saw a photograph of the appellant taken at the time of his arrest in relation to a previous robbery in May 2007. He thought that the appellant resembled the robber. The appellant was arrested on 7th March 2008. His home was searched. No items of clothing matching those of the robber were found. In interview the appellant denied being the robber and in evidence before the jury said that he was not the robber. On the basis of that, and notwithstanding the failure of the victim to pick out the appellant, he was charged.[6]Subsequently, PC Hasse sent still images from the CCTV footages to other officers to see whether or not they could identify who the robber was. We shall return to the evidence relating to that below.[7]In the summing-up the judge told the jury at pages 5 to 6 that they were entitled to look at the CCTV material and the stills and decide whether or not they were sure that the defendant was the robber. The judge pointed out to the jury that they had had the advantage of seeing him both in the witness box and of course during the course of the trial. The judge warned them that they ought to be careful about drawing conclusions from any such comparison and went on to say that they were entitled, having made the comparison, to be sure although it may be dangerous to reach that conclusion. Thus, as counsel agreed before us, the judge left it to the jury to reach their conclusion only on the basis of their comparison of the CCTV film, stills and the appellant as they saw him in court.[8]On preparing for this case that caused this court to be concerned and we asked for argument on this point. There is no doubt that the jury can carry out the task which the trial judge left to them - see Attorney General's Reference No 2 of 2002 [2003] 1 Cr.App.R 21 and [2002] EWCA Crim. 2373.

(i) Rose LJ said:

"Where the photographic image was sufficiently clear, the jury could compare it with the defendant sitting in the dock..."
It was not submitted to the judge, as perhaps with hindsight it ought to have been, that these images were not sufficiently clear to enable a juror without any expert help to come to the conclusion that the defendant was the robber.[9]There were a number of difficulties with the photographs. For example, none of the photographs show the colour of the robber's hair because the robber had a hat. One could not see the colour of his eyes and the jury could not be sure that the robber had facial hair of the kind which the appellant had at the time. We should say that there was before the jury (as there was before us) a copy of a photograph taken at the time of his arrest in 2008 for robbery. In so far as the latter is concerned, the facial hair is quite different and the hair on the head is significantly different.[10]We have looked with great care at the CCTV film and the images. We have looked at the photograph of the appellant at the time of his arrest in 2008 and we have had the opportunity to look at the appellant whilst this appeal has been proceeding. In our view, having done that, we take the view that the conviction is not safe to the extent to which the jury could have reached the conclusion that they were sure that the appellant was the robber on the basis of the evidence of the photographs and footage. It is right to say, as counsel for the respondent submits, that there are similarities. There is a similarity in the shape of the jaw, there is a certain similarity in the particulars of the cheekbone, the full lips, a similarity between the eyebrows and the robber, like the appellant, has a cleft in his chin. But notwithstanding those similarities, in our view no jury could properly be sure that the defendant was the robber on the basis only of the CCTV film and the stills taken therefrom. That would be enough to lead us to quash this conviction. However, there is another ground of appeal to which we should pay some attention.[11]The officer in the case, as we have said, sought the help of other police forces. Two officers said that they recognised the person on the video film and stills as a person whom they had arrested in May of 2007 for an offence of robbery and in circumstances where they had ample opportunity at the time to see the appellant. The jury were told that the appellant had been convicted of that robbery. We asked Mr Brock why the jury was told that he had been convicted of the robbery, why was it not sufficient merely to tell the jury that the two officers recognised the appellant from some previous incident without specifying what it was? Mr Brock told us that the prosecution had made a written application for the admission of the previous robbery as demonstrating propensity. Mr Brock took the view that the judge would have allowed that application and therefore took no objection when the two officers gave evidence and said that they had arrested the appellant for the May 2007 robbery.[12]The judge was asked to rule on the admissibility of the evidence of the two officers, DC Crookston and DC Smith. In order to resolve the factual issues surrounding their recognition of the appellant a voir dire was held and subsequently the judge gave a ruling admitting the evidence. There was a conflict in the evidence on the voir dire between the officer in the case PC Hasse and DC Crookston. PC Hasse said that he had sent out an email with the still images asking anyone whether they could identify the person committing the robbery. It was his evidence that he had asked in the email a simple question whether anyone receiving the email recognised the person. He said that he received a reply to that email from DC Crookston saying that she did. If that evidence was accurate there were no emails produced to the judge to support that evidence. That we find surprising. But DC Crookston gave a different account of how it was that she was to see the images. She said that she had received a phone call from PC Hasse to ask her whether she was the officer who had arrested Mr Jabar in May 2007 and she said that she was. Thereafter PC Hasse took the CCTV film and images to the police station where DC Crookston was stationed. There is no doubt that what happened thereafter was not in accordance with best practice. No contemporaneous note was taken about what was said to DC Crookston and what her reply was. In his ruling, having regard to the conflict of evidence, the judge proceeded on the assumption, at least on the possible assumption, that DC Crookston knew that it was suggested that it was Jabbar on the video. In her words, at least on the voir dire, she said that she remembered PC Hasse asking her if she remembered dealing with Jabar and asking her if she would view some CCTV footage to see if she could identify him on it. We do not know whether or not the robber was pointed out to her. There were a number of young people in Ladbrokes that day, but it seems at least possible that PC Hasse did as Mrs Whitby did for us, namely identify which one was the robber.[13]It seems to us clear, notwithstanding the submissions of Mrs Whitby, that what DC Crookston was being asked to do was to say whether she could see Mr Jabar on the video footage and on the stills. It is right to say that she gave reasons why she recognised the person and gave evidence that she was satisfied that the person on the CCTV images and stills was in fact Mr Jabar. It is sufficient to say in this case, without going into any more detail, that we are concerned about the way that the procedure was carried out. It is right to say the judge made his decision before the recent decision of this court in Smith [2008] EWCA Crim. 1342, [2009] 1 Cr.App.R 36, which sets out what procedures should be followed if officers are going to look at CCTV images and stills in circumstances like this. It might have been very different if the evidence of PC Hasse was right and that DC Crookston identified the appellant without any prompting, but the jury could never have been sure that that is what happened because of the evidence of DC Crookston and indeed the judge did not approach the ruling on that basis.[14]There was then a further issue about the second officer, DC Smith. It was his evidence that he came into the room by chance, looked at the video, was asked by DC Crookston whether he could recognise anyone in it and immediately recognised the defendant. However, absent a written record of what occurred, questions were asked of DC Crookston as to how she recollected what occurred when DC Smith came into the room. She just could not remember whether she had said to him:
"Is that [pointing at the robber] Daria Jabar?"
Again absent any proper written record it was quite impossible for anyone to work out, with the degree of certainty that was going to be required, what had occurred. Indeed the judge in his ruling in admitting the evidence ended up with these words: "However, what I have to decide is whether the identification by the two officers [DC Crookston and DC Smith] is made so unreliable by the mention of the name, Jabar, before it took place that the evidence ought to be excluded." (underlining added) He said that it was a matter for the jury to assess the reliability of that evidence.[15]In the summing-up, having as we have said told the jury that it could be dangerous or may be dangerous to act simply upon their own view, he went on to direct them that they could rely on supporting evidence, if they found it to be so, of DCs Crookston and Smith. He said their evidence was capable of supporting a conclusion by the jury that the appellant was the robber. In the course of his summing-up

the judge said this:

"Is it possible that both of those officers were alerted to the name of the person they were expected to see on the CCTV material and, if so, was their identification influenced by knowing the name beforehand? Was it something which led them to jump to the conclusion, wrongly, that the person on the CCTV was, in fact, this defendant, Daria Jabar?"
It is not necessary for us to give a concluded view about the admissibility of the evidence of these two officers or a concluded view about the manner in which the learned judge summed up their evidence. It is sufficient to say that we have concerns as to whether the jury had sufficient guidance on this aspect of the case.[16]We should say something in conclusion about an expert report. On the day of the trial the prosecution served an expert report from a Mr D V Anley, a senior forensic consultant in the video laboratory at Berkeley Security Bureau (Forensics) Ltd. He was asked two questions. First, as to whether or not the person in Ladbrokes was the robber. As to that he said:
"Based on a comparison of the clothing worn and the proximity in terms of time and location, there is no doubt that Man A and Man B are the same person."
He then went on to deal with the second question. He said this:
"On the basis of the number and singularity of the similarities in the facial features of [the robber] and Mr Jabar, in my opinion the analysis lends support to the contention that they are the same person."
In his conclusion at paragraph 9 he said:
"The analysis lends support to the contention that [the robber] and Mr Jabar are the same person."
As can be seen from the report, Mr Anley examined the videos, the stills, and what is a good photograph of the appellant, at the time of his arrest for the index robbery. He did not have the benefit of seeing the appellant in court giving evidence and during the course of the proceedings. The judge refused to allow the prosecution to introduce that report into evidence. Therefore the jury heard nothing about it. All we say is that it further supports our concern about the safety of the conviction. Whereas the jury were entitled, as the judge directed, to reach the conclusion that they were themselves sure that the robber and the defendant were the same person, all that the expert can say is that the comparison "lends support". That is clearly not a very strong opinion. If the jury could be sure, as they were directed they were entitled to be, then at the least one might have expected the expert to put his views in stronger terms than that.[17]In conclusion this is one of those rare cases where, putting everything together, this court has reached the conclusion that there must be doubt about the safety of the conviction. The appeal is allowed.