Brown, R v [2011] EWCA Crim 80

Case No 2010/1137/C1[2011] EWCA Crim 80
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 19 January 2011
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE PILL
MR JUSTICE OWEN
THE RECORDER OF DOVER
(HIS HONOUR JUDGE PATIENCE QC)
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
MERRICK BROWN
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 G Trembath QC appeared for AppellantMiss S Whitehouse appeared for Crown
J U D G M E N T

LORD JUSTICE PILL:

On

[1]20th November 2009 in the Central Criminal Court before His Honour Judge Barker QC, the Common Sergeant of London and a jury, following a 10 day trial, Merrick Ainsworth Brown was convicted of murder. He was sentenced to imprisonment for life with a specified minimum term of 33 years, less 127 days spent on remand. Brown appeals against conviction by leave of the single judge.[2]On 16th October 2001 Shaun Fray was shot in the back of the head with a single bullet. On 2nd November 1990 he had pleaded guilty to an armed robbery in which a security van had been held up. A large quantity of cash had been taken, over a quarter of a million pounds, along with cheques. Of that something over £100,000 was recovered, but the balance was never found. Fray was sentenced to 10 years' imprisonment for his part in the robbery and was released on licence in 1994. He returned to run a small car hi-fi business with other men and was believed to have received a modest wage. He met Miss Amoy in 2000 and they married the following year. On 16th October 2001 she was 22 weeks pregnant.[3]A number of discarded papers were found near the victim's body when a search was conducted. Drawers in his bedroom had been disturbed. The room was examined for fingerprints and fingerprints were found on three documents to which we will refer. They were the appellant's fingerprints.[4]The prosecution case was that this was a deliberate contract killing. Remarks were made suggestive of the connection with the earlier armed robbery and the missing £130,000. At the trial evidence was based on scientific appraisal, which could not be challenged, that the appellant's fingerprints were on three documents found at the place where he was killed. Reliance was also sought to be placed on the victim's wife's evidence as to what she saw in the room and on evidence of previous firearms offences by the appellant which was said to show propensity.[5]The defence case was that the appellant was not responsible for or in any way involved in the murder. Documents could have been transported from elsewhere. The identification evidence, such as it was, was unreliable and aspects of Mrs Fray's description were at odds with the appellant's appearance.[6]In breach of licence the appellant had gone to the United States and he was not extradited from there until March 2009. That, in part at any rate, explains the very long gap between the death and the trial.[7]Mrs Fray said that her husband had a regular routine. He usually arrived home between 7.00 and 7.30 in the evening. He was very neat and tidy with his papers. She never saw rubbish or papers anywhere. He was concerned about the low level of his earnings. She had spoken to him during the day on 16th October and he returned home at his usual time. She then heard him talking and assumed he was on the telephone. She went to investigate and an armed man appeared in the kitchen doorway. He was armed with a gun and indicated to her where she was to go. She described him (at trial known as male 1) as a dark-skinned black man with short Afro hair of average build. While in the hallway of her home, Mrs Fray heard a scuffle and a gunshot. She was taken into the bedroom where the victim was lying motionless on the floor. Two men were standing over him, one of whom (described at the trial as male 2) had a handgun. The Crown's case was that male 2 was the appellant. He ordered her to lie on the floor but then said to her:
"Where's the money. Where's the gold."
She gave him a pouch containing £2,000, credit cards and other documents such as the victim's passport and birth certificates. Three men were present at that stage. Male 2 repeated his demands, breaking an inexpensive chain which she was wearing around her neck. She said there was no more money. He took his gun from his waistband, led her to the bedroom and rummaged through some clothes. She was then told to get on the floor and when she did so the men then left. She summoned help from neighbours and a 999 call was made at 19.44 hours.[8]In her evidence she described male 2 as darker skinned than male 1 who had been described as darker skinned than her. He was over six feet tall and could have been as tall as the victim, who she said was six feet seven inches tall. He was a big man with short black Afro hair, scruffy beard and possibly a moustache. His two front teeth were large and yellowish-brown in colour. She put his age at 35 to 40. She also gave descriptions of male 3 and male 1 - a description which she had given years earlier at interview on 19th October 2001. In some respects the descriptions of male 2 were similar but they were not consistent with the appellant's skin tone, height, hairstyle or build. She had produced an E-fit description in October 2001. This was put to her and it depicted male 2 again with short Afro hair. In cross-examination she said that the hair was not intended to be exact, but she reiterated her earlier description.[9]A video identification procedure was conducted in July 2007, that is over six years after the offence was committed. Neither the appellant nor his legal advisers were aware of that because he was in the United States. The usual notification of the solicitor and other formalities were not therefore followed. No point is now taken on behalf of the appellant by Mr Trembath QC who appears for him, and no allegation of a breach of the Code for such procedures, is taken. We are not at all surprised at that having regard to the appellant having deliberately absented himself from the jurisdiction for a long time. We will refer in somewhat more detail to the evidence she gave in relation to the procedure.[10]Evidence of the fingerprints was given and the forensic scientist had no doubt that the appellant had left marks on three documents which were found at the scene. One of those was dated 1st September 2001 - that is only a matter of weeks before the killing occurred. That was a Woolwich Bank statement of account. The second document was a further statement several months earlier and the third a magazine.[11]On behalf of the appellant Mr Trembath takes two points. The first is that Mrs Fray's evidence of the VIPER procedure in 2007 should not have been given. Even if contrary to that submission it was admissible, her post-procedure comments should not have been admitted in evidence. It would follow that her evidence at trial in which she described the procedure and gave her up-to-date view on it should also have been excluded. That of course was a further two years or so after the procedure had been followed.[12]Mr Trembath submits that the issue was identification. He relied on the marked differences between the descriptions given by the witness and the appearance of the appellant. The appellant had dreadlocks at the material time, very different from the short cropped hair with which the witness described the assailant. The appellant was five feet ten or five feet eleven inches tall, considerably less than the six feet five to six feet seven which she described the assailant as being. The witness was herself of West Indian extraction and familiar with dreadlocks. There was a discrepancy as to the colour of skin also between the description she gave and the skin of the appellant.[13]At the trial, not surprisingly, counsel cross-examined the witness about these differences and the appellant in his case relied on the differences in description between the man present and the appellant. Mr Trembath submits that the procedure in 2007 being so long after the killing should not have been admitted. Moreover, the remarks made by the witness afterwards were highly speculative and should not have been admitted. It is submitted that their effect on the defence was devastating.[14]The images used at the 2007 procedure were photographs. The photographs were cropped to face only with floating head to eliminate the red bandanna scarf which the appellant, in one of the photographs of him, was wearing. Having viewed the video parade twice, the witness asked to see image three again - that was the image of the appellant. It was played to her twice. She was then asked whether one of the persons she had seen in the house was shown on the film. Her reply was: "I am not sure." However, on the same day after the procedure the witness made a statement in respect of image number three, stating: "I did ask to see number three twice as I wasn't sure. If I could have seen the face longer and the mouth open then yes I could have possibly identified the male shown at number three as the male involved." That is so speculative, submits Mr Trembath, that it should have been excluded, as should have the whole procedure, notwithstanding the appellant not being able to complain of it being followed in his absence because he had gone to the United States and had to be extradited from there to face the charge.[15]Mr Trembath relies on the case of George [2002] EWCA Crim. 1923 where there were a number of potentially identifying witnesses and an issue arose as to the admissibility of the evidence of one of them. The Lord Chief Justice at paragraph 34 stated that the court recognised the dangers involved in wrong convictions occurring in identification cases. He added:
"We also agree that prosecuting counsel must be cautious and avoid conducting his examination of a witness who has failed to make a positive identification in a manner which suggests to the witness that but for this fact or that fact that the witness would have made a positive identification. An identification which is qualified cannot be transformed into one which is unqualified by careful questioning."
Mr Trembath submits the principle applies more strongly here because this was not even a qualified identification; it was a non-identification. As the judge himself put it when summing-up, it gave rise to no more than a "qualified suspicion". By admitting the comments which the witness made after the procedure had been followed and by permitting the witness to give evidence about it years after the killing had occurred, the prosecution had breached the principle which had been stated by the Lord Chief Justice. At paragraph 37 it was accepted that:
"... where a witness makes a spontaneous remark at a parade and it is recorded we are satisfied that such a remark is admissible in evidence if relevant and probative subject to the trial Judge's discretion to exclude it pursuant to S.78 of PACE."
At paragraph 36 the court stated that the judge was required to decide whether the evidence "is more prejudicial than relevant and probative bearing in mind the importance of protecting the position of a defendant against unfairness." In that case the court concluded (75):
"... when the identification evidence is looked at as a whole, it provides compelling evidence that the appellant had been at the scene of the crime at the relevant time."
The court referred to an underlying unity of description at paragraph 76.[16]The present case is quite different. There is no such underlying unity. There are no other potentially identifying witnesses. The case is of an entirely different nature and the question arises whether in this case it was right for the judge in his discretion to admit the evidence from Mrs Fray of what happened in 2007.[17]For the prosecution, Miss Whitehouse refers to the broad discretion available to judges in this context, one with which this court should be reluctant to interfere. Moreover, she submits that there is strong evidence against the appellant, not in this case other potentially identifying evidence, but the evidence of the fingerprints. There was in this case, to cite the term used by the Lord Chief Justice at paragraph 36 of George, "highly probative evidence". The judge was entitled to admit, on the basis that the jury were entitled to see it, the entire potentially identifying procedure by the witness.[18]Before commenting further we refer to the evidence given at the trial in relation to the later identification or non-identification or qualified suspicion, as the judge called it. In his summing-up the judge described what had happened at the parade. He went on to summarise the witness's evidence about it. At page 47:
"When she gave evidence she told us about that procedure and what was going through her mind at the time, and she told us that when she saw number 3 for the first time she said: that was the image that was left in my mind. When I had contact with him his mouth was always open and his teeth were showing. His teeth were one of the features that I had in my mind, what I saw in the E-fit was just a part. What I created in the E-fit was just a part. If I had been able to see the teeth in the course of the video procedure that would have given me a better picture. Without the teeth, it would be very difficult to be sure."
The witness had mentioned teeth as a distinctive feature of her description when she had first given one to the police years earlier.

The judge continued with his summary:

"The image that I had on the initial contact was the one I used on the E-fit. As I looked at the parade, bits and pieces came back of the image of him. ... I looked at that person twice as I thought it fitted the image that I retained in my mind. I could not be sure as the teeth were not there and the whole head was not full, so all I had was part of the picture and tried to fitted it in with what I know to see if it matches."
The judge then summarised it and stated that it was at best a "partial identification". He also used the expression already cited, "qualified submission". The question is whether that evidence should have been admitted.[19]We bear in mind the strong evidence against the appellant constituted by the presence of the fingerprints, especially of one on a document which had clearly been disturbed by the assailants from the drawer, when, it was suggested, they were looking for money which they believed the deceased had kept to himself. That was a recent document and the appellant's fingerprint was on it. It is suggested that notwithstanding the short interval of time since the document's creation, the appellant might have touched it, for example, in a coffee shop. It is possible that the two Woolwich documents had been placed inside the magazine and had been taken to a public place where the appellant had touched them. No doubt this point was made to the jury and its weight assessed by the jury.[20]This was, in the view of the court, powerful evidence that the appellant was one of the assailants. There was evidence of man number 2 being in the bedroom disturbing the contents and it is on those contents that his fingerprint is found. There was evidence that the deceased was a tidy man who looked after his documents carefully. We also bear in mind that at the trial, and rightly so in what was clearly a very difficult case for the defence having regard to the fingerprint evidence, counsel attempted to make use of the differences between the description given initially and during a more formal interview the following year by the witness, and the appellant's own appearance. They were significant differences and counsel was of course right to require the jury to consider them. However, once that approach is taken, in our judgment it is difficult for the defendant to claim that the entire evidence of the witness should not be given. If the defence were seeking to rely on parts of it, the jury were entitled to consider the entire sequence of events and to do so notwithstanding the very significant delay which arose from the appellant's absence from the jurisdiction.[21]We acknowledge the danger identified by the court in George of attempting to convert a qualified into an actual identification. This was neither actual nor qualified and what weight if any the jury gave to it was a matter for them. But in our judgment and having regard to the strength of the fingerprint evidence, they were entitled to have the opportunity, and the judge was entitled to give them the opportunity, to consider the entire investigative procedure in relation to identification. That involved questioning rightly conducted about the early descriptions. In our judgment it also entitled the admission of material in relation to a procedure followed years later, in an approved manner. It entitled the post-procedure comments to be made. The jury were entitled to know the entire approach of the witness. Moreover, she was entitled to give evidence about it so that the jury were in the best position they could be.[22]There could be cases where the difference between a description of events at the scene and the presence of the appellant was such that there was an irresistible inference to be drawn that it was not the appellant who was present. This is not one of those cases. We have considered the argument that, because it was no more than a qualified suspicion, the evidence ought not to have been given about later procedures, but once the defence challenged the earlier parts of the procedure the judge was entitled, in our judgment, to ensure that the jury knew of the whole of the procedure so that they could bear the evidence, such as it was, in mind when coming to their conclusion.[23]The second point taken is in relation to the bad character of the appellant. He had two convictions for possessing firearms without a certificate in October 1992 and May 1997. After release from a sentence of six years' hard labour he arrived in the United Kingdom shortly before the murder. In February 2003 he was sentenced to four years' imprisonment for an offence of possessing a loaded firearm at a railway station. In September 2003 he was sentenced to four years' imprisonment for an offence involving his discarding a bag containing a loaded pistol. Mr Trembath submits that the admission of these convictions had a devastating effect on what otherwise was a weak case and accordingly should not have been admitted.[24]We do not accept that this was a weak case. The strength of it was in the fingerprint evidence which, to adopt the expression used by the court in George, was highly probative.

(d) of the Criminal Justice Act 2003:

"Evidence of a defendant's bad character is admissible if, but only if- ... (d) it is relevant to an important matter in issue between the defendant and the prosecution. Section 103(1)(a): "... the question whether the defendant has a propensity to commit offences of the kind with which he is charged is a matter in issue between the defendant and the prosecution within the meaning of the section."
Mr Trembath submits that the evidence should have been excluded under section 101(3), because "the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it." It is submitted that the convictions referred to do not demonstrate a propensity to commit a quite different offence of entering someone's house and cold-bloodedly killing them.[25]We do not accept that submission. It appears to us that the record of the appellant in relation to firearms was capable of demonstrating a propensity to commit the offence charged. Moreover, as we have said, this was not a weak case where an attempt was being made to create a case out of nothing by putting in evidence of bad character. It is the distinguishing feature of the present case, in spite of the forceful and attractive submissions made on behalf of the appellant, that the fingerprint evidence was, it appears to us, devastating. No explanation was given of any plausible kind as to how the fingerprints could have been left there, other than by the appellant, and they were found close to the body.[26]Of course it was for the jury to make a decision but in the context of this case we consider first that the entire evidence of the witness was admissible and secondly that the judge was entitled to admit the evidence of previous convictions involving firearms offences. The summing-up clearly was a careful one and no criticisms are made of it. We should add a further point made in relation to the fingerprints, that the appellant's fingerprints were not found on any static as distinct from mobile surface. Mr Trembath referred to documents as being mobile. The jury asked a question about this and it appears that no expert evidence was given as to whether fingerprints on hard surfaces in this context were likely to have been left and the judge stated that he could not help, save to point out that no other fingerprints were found on those static surfaces. That point does not in our judgment significantly weaken the effect of the fingerprint evidence.[27]In the event we have no doubts about the safety of this conviction and the appeal is dismissed.

Cited in 1 later judgment