Cole v R [2013] EWCA Crim 1149

Case No 2012/02442[2013] EWCA Crim 1149
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM PRESTON CROWN COURT
THE HON MR JUSTICE DOUGLAS BROWN
T971364
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/07/2013
Before
THE LORD CHIEF JUSTICE OF ENGLAND AND WALESMR JUSTICE MACKAYMR JUSTICE GRIFFITH WILLIAMS
Between
Kevin Samuel ColeAppellantRRespondent
C H Blaxland QC and D Emanuel for AppellantJ Price QC for CrownHearing Hearing dates: 18 th June 2013
JudgmentThe Lord Chief Justice of England and Wales:
[1]This is an appeal against conviction by Kevin Cole following a Reference by the Criminal Cases Review Commission (CCRC) under s.9 of the Criminal Appeal Act 1995 of his conviction in March 1998 at Preston Crown Court before Douglas Brown J and a jury of murder of John Dookie and wounding James Handyside with intent to cause grievous bodily harm. An earlier application for leave to appeal against conviction was refused by this court in February 1999.[2]The arguments on this appeal are largely based on the contents of a document made in the immediate aftermath of the offences. In the present proceedings the document was referred to as M8. It is a record taken by the police of a telephone description given by a witness, Mrs Ellis, who was later to identify the appellant on an identification parade. M8, or the information contained in it, was not disclosed to the solicitor acting for the defendant before the identification parade. It was properly disclosed to the defence before the trial, but leading counsel decided that it should not be deployed in evidence. Mr Henry Blaxland QC is critical of both decisions. The result, he submits, was that the appellant was convicted by a jury which was ignorant of critical information which was also of importance to the advice given to the defendant by his solicitor during the course of the investigations. Accordingly, on mature further analysis of the evidence, the safety of the conviction can no longer be sustained. M8 should be admitted in evidence in accordance with s.23 of the Criminal Appeal Act 1968.

The background

[3]John Dookie and Thomas Handyside were drug dealers who operated in the Meadow Street area of Preston. Anthony Kirk and Stephen Mellor were also drug dealers operating in another area of Preston. They began to deal in drugs in the Meadow Street area, undercutting the prices and providing greater quantities of heroin than Dookie and Handyside.[4]In early 1997 there was a steady increase in tension and rivalry. A number of meetings took place, one on 7 February 1997 where the four men met by arrangement at the Rat and Raven public house in Preston, close to the scene where Dookie was later to meet his death, and Handyside was to be seriously wounded. During the course of this meeting Stephen Mellor and Kirk threatened Handyside and Dookie with knives. Thereafter the level of violence escalated. On 8 February Mellor had a fight with one of Handyside’s supporters, Mr Osborne. Then Mellor met Handyside and a small group of others, and in the early hours of 9 February they went to the home of one of Handyside’s distributors, Mr Allan. They anticipated that both Handyside and Kirk would be present. At the property Kirk threatened to kill Dookie and stabbed him in the leg, Mr Osborne was stabbed three times by him, and was struck by Mellor with a hammer. Mr Allan was slashed with a knife across the head. He was taken to hospital but after he discharged himself, he was attacked for a second time by a group of masked men who told him to tell Handyside and Dookie “they’re gonna get it”.[5]On 13 February Kirk saw Allan again, and told him that if Handyside and Dookie came anywhere near his home again they would get done properly. Later that evening Handyside and Dookie were out driving when they saw Kirk with another youth and some girls. When he saw the car Kirk approached it, pretending that he was carrying a weapon of some kind. Dookie was driving the car, and Handyside told him to drive at Kirk and run him over. At the later trial the Crown accepted that Dookie did indeed try to run Kirk down.[6]On 14 February Dookie spoke with Handyside, insisting that the dispute between them and Mellor and Kirk needed to be sorted out. They attempted to arrange a meeting to take place on that day at the Rat and Raven. Dookie and Handyside kept the appointment but Mellor and Kirk did not. After leaving the Rat and Raven, Dookie and Handyside saw Mellor and the meeting was rearranged for 5.45 at a nearby block of flats. The fatal incident occurred shortly afterwards.[7]Cole lived in Liverpool. He was not a Preston man, and this territorial dispute was not really his argument. However he was an associate of Kirk. Kirk and Cole were in contact by pager and telephone on 13 and, frequently so, on 14 February. The first relevant call in the evening of 13 February was when Cole tried to contact Kirk by his pager, and then through a mobile phone belonging to Parson. The considerable activity next day included an occasion when Kirk rang Cole back from a call box in the shopping centre. By 5.34 Cole had travelled to Preston and was keeping very close company with Kirk and Mellor. This was proved beyond doubt by photographs which came from a video in Healds supermarket. Healds is a short walking distance away from the scene of the attack on Dookie and Handyside. The Crown’s case was that Cole’s arrival in Preston that afternoon was not accidental or coincidental. He had come to support Kirk and Mellor and that is why he was with them just a few minutes before the attack. As well as proving that Kirk and Mellor and Cole were close together at a critical time, the images from Healds show the sweater or top then being worn by Cole. The upper clothing shown on the video did not coincide with the description of it later to be given by the identifying witness, Mrs Ellis.[8]At 5.44 Kirk and Mellor went to the block of flats but refused to go up into them, and used the intercom to suggest a meeting at the Rat and Raven public house. Dookie and Handyside went to the Rat and Raven but found that it was closed. The four men agreed to go to another local public house, the Variety.[9]The attack on Dookie and Handyside took place in St Peters Street. Handyside was struck on the head with a baseball bat, and knocked to the ground where he was stabbed in the right buttock. He gained himself a little time by giving his attackers the impression that he was carrying a gun, and with that he was able to move away towards the Variety public house. As he made his way there he saw Kirk going towards Dookie. The last Handyside saw of Dookie was Dookie backing away with his hands held out wide, facing Kirk who was moving towards him. Dookie was fatally stabbed. He was later found in Warwick Street, a short distance away from the scene The murder weapon was recovered. It bore fibres from Dookie’s jacket, and the gloves worn by Kirk at the time of the attack. The Crown’s case was that Kirk was responsible for the fatal stabbing of Dookie, and that as the investigation proceeded, he sought to distance himself from it.[10]A variety of different witnesses saw what happened to Mr Dookie. One witness, who knew Kirk, Mellor, Handyside and Dookie, described how five or six males came from different directions to attack them. Another witness saw four or five people kicking Dookie as he lay on the floor. In reality, so far as this appeal is concerned, nothing turns on this area of evidence, but it does serve to underline how a confusing situation can result in confusion among eye witnesses.[11]More important, there was no eye witness or scientific or indeed any other evidence which directly linked Cole with the attack on Dookie. The Crown’s case was that he was one of the gang of assailants, who broke away and followed Handyside the short distance from the scene of the attack to the Variety. There was some differences between eye witnesses about whether it was one or two of those attacking Dookie who broke off to follow Handyside, and it is quite unrealistic for us now to seek to attempt to reconcile them. As Handyside reached the Variety, he stumbled on a step and fell. Whether one or two had been following him, he was physically attacked by only one individual. He felt someone stab him in the back. He turned and looked at his assailant. The assailant said, “you scumbag” or “you shit bag” in what he described as an Irish accent. He, of course, knew Kirk well, and he never incriminated Kirk and remained adamant that the man who chased him to the door of the Variety was not Kirk: the last he had seen of Kirk as he fled the scene was Kirk going towards Dookie. Notwithstanding many criticisms which can fairly be addressed to Handyside’s credibility, it is difficult to see, and no one has suggested any reason why, if Kirk was involved in the attack on him, he should fail to incriminate him. The evidence which linked Kirk to the fatal use of the knife against Dookie provides very strong support for Handyside’s evidence that as he was running away from the scene, Kirk was confronting Dookie just before the fatal stabbing took place. When he was first interviewed Kirk, too, repeatedly denied any involvement with the attack on Handyside at all, asserting that he had run away in the opposite direction, but during a later interview, he changed his story completely and said that he had followed Handyside and exchanged insults with him at the Variety before running in the opposite direction. Even then he denied carrying a knife or stabbing him.[12]A number of witnesses saw the attack on Handyside. They provided descriptions which, unsurprisingly, were not in identical terms. One crucial witness, Mrs Ellis, was later to identify Cole on a properly conducted identification parade.

M8 – and the evidence of Mrs Ellis

[13]The first that we know of what Mrs Ellis had to say about the attacker was a note of a telephone call made by her to the police at 15.54 on the afternoon of 15th February. This is M8.[14]The note reads:
“Last night just before 6pm I believe I witnessed the aftermath of the assault. I saw the lad with head injuries run into the Variety public house, and saw him chased by another young man. I heard some threats made by the second man. He was 5ft 10ins slim, very short number 1 haircut, blond, very clean appearance, wearing a horizontally striped upper garment – mauve or similar colour. I then saw this man run up St Peters Street towards Moor Lane. I deliberately took a good look with a view to remembering his face, and I would definitely recognise him again.”
This was the note. Mrs Ellis did not read it through or sign it.[15]In her witness statement dated 17 February 1997, Mrs Ellis described witnessing Handyside fleeing from the scene where Dookie was being attacked. She then saw his assailant “hot on the heels” shouting obscenities at Handyside. She said she had a totally unobstructed view of the entire incident and a good look at both of the men involved. She gave a description of the second man, “white about 5ft 10ins-5ft 11ins tall, stocky build, quite muscular, but in proportion …, about early to mid 20s, with very light brown or mousy coloured hair, but definitely not blond. His hair was a very cropped short almost shaven style through which I could see his scalp which I think gave his hair a “lighter colour look than it actually was”. She heard his voice when he shouted obscenities and she would describe him as having a local accent. Of his clothing she could only describe his jumper because she had a “good close up view of him which afforded me the opportunity to concentrate more so on his face and his top half”. She “distinctly” remembered, because she thought it was a very nice sweat shirt style jumper with a crew neck. It had horizontal stripes throughout. She added that she would definitely be able to recognise both men again if she saw them.[16]The description of the assailant, as recorded from the telephone message, spoke of the assailant as “slim” with blond but very short number 1 haircut. In her witness statement Mrs Ellis described him as a man of stocky build, quite muscular, with very light brown or mousey but definitely not blond hair. The hair was very cropped, short almost shaven style which, because she could see his scalp, gave his hair a “lighter” colour look than it actually was.[17]We must now move much further ahead. In November 2003, some 5½ years later, the CCRC contacted leading counsel at trial, asking for information about this record which, so it was suggested, appeared not to have been disclosed to the defence. Counsel responded that he had insufficient recollection to state with certainty that he had not been so provided, but he thought it was most unlikely that he had been. He added, “Had it have been I would definitely have used it”. In a letter to his client he wrote that if the record had been disclosed, “it is possible that a tactical decision was made not to use the log”, but his immediate response was that if he had seen the log he would definitely have used it.[18]After a prolonged investigation, and the lapse of a further 5 years, when the available material was disclosed to him, counsel agreed that he had seen M8 and considered it, and had decided that it should not be used. Without M8 there were weaknesses in the evidence of Mrs Ellis in relation to the height and upper garment worn by the assailant. The potential downside was that if he had cross examined on the basis of the content of M8 prosecuting counsel would have been permitted to re-examine to establish that for this witness the critical identifying feature was the face of the assailant rather than his height or his upper garment.

The identification parade

[19]On 20 February, after he had been interviewed by the police and adamantly denied that he had been in Preston on 14 February, Cole participated in an identification parade. A number of witnesses examined the line. He was identified by Mrs Ellis. Mr Blaxland suggested that if the solicitor then acting for Cole had been informed of the content of M8 Cole would have been advised not to participate. Indeed that is the advice Cole’s solicitor says he would have given if he had seen M8 before the parade. He would however also have advised, as he advised throughout, that although Cole was entitled to refuse to participate in the parade, police officers would be likely to take alternative steps to see whether Mrs Ellis was in a position to identify him. These steps are normally regarded as less satisfactory from the point of a view of a defendant than a properly conducted identification parade. The solicitor was extremely careful, inviting the officer in charge of the parade to note that Mrs Ellis, among other witnesses, had given descriptions as to the clothing worn by the suspect which was contrary to the clothing shown from the video at Healds; that Cole had already admitted in interview that he had been in the vicinity of the incident and seen the start of the attack and then left, so that it was duplicitous to seek to “put him in the vicinity”; and that so far as the witness Ellis was concerned, she described the assailant as being significantly shorter than Cole. The officer noted these comments but pointed out that if objection was taken to the inspection of the parade, then at some future date some other “form” of identification would have to be arranged. Thereafter, at the behest of the solicitor, it was agreed that the participants in the parade should sit down. He was concerned that Cole was a very tall man and that if all the volunteers sat down, the differences in height would be ironed out. When that was agreed, the appropriate consent was given.[20]Events at the parade itself were examined at the trial. Nine men took part, with Cole sitting at number 6. Mrs Ellis asked if they could stand, but was told that they could not. She asked if she could have another look, and asked if number 9 could stand. She said that she wanted some assistance in relation to height. She was told that number 9 would not stand. She told the jury that she was not seriously contemplating identifying number 9, but she said that she was “a little thrown” when she was told that they could not stand, and that they did indeed look similar in height. She asked if she could have another look, and did so. She identified Cole saying, “I can identify according to what my memory is doing”. She was asked how sure she was and said, “I have no doubt about my choice at my time. I do not think I am wrong”.[21]Moving forward, to the trial, we have been provided with a full transcript of her evidence. She gave a brief description of what she had seen, and was then asked about Handyside’s assailant. She said that he was taller (that is, than Handyside) “quite muscular and fair skinned and fairish hair, quite cropped, and he was wearing jeans and a striped jumper. She gave a description of the jumper which had “quite broad stripes and they were sort of quite distinctive”, … mauvey … it was sort of a orangey/tan colour. But they were sort of quite … maybe two-three inches; quite wide horizontal stripes”.[22]She was first cross-examined on behalf of Kirk. She confirmed the description of the jumper worn by Handyside’s assailant, consistently with the description given in her witness statement.[23]When she was cross-examined on behalf of Cole, the first issue addressed was the identity parade. In relation to asking somebody other than what was described as “her final choice” to stand up, (that is number 9) she said that she was not seriously contemplating whether or not to identify that individual. As the judge indicated in the summing up she said that she was “a little thrown when she was told that she could not have everybody stand”. She was asked if she could amplify what she meant when she said “I can identify according to what my memory is doing”. It was suggested that those words meant that “there was some element of doubt” in her choice. Again, she denied any doubt, “not at the time, no there wasn’t”. She was asked if she had focussed on the height of the assailant, and she said “it wasn’t the height initially. It was the actual features”. She said that she wanted to make “100% sure”. She had been really thrown in relation to the men not standing, because she expected them all to stand, and it confused her at the time when she was told that they could not.[24]She was then asked whether if all the men had stood up someone as tall as 6ft 3ins, the height of the appellant, would have taken that person out of the reckoning. After a pause she said that it would. When she was asked about the clothing, she said that this was secondary … “the features of the person were first”. When pressed that the “sweatshirt was important”, she observed that when she was asked to give a description at the time it was. She confirmed the contents of her witness statement and the detailed description of the sweatshirt style jumper being worn by the assailant. It was put to her that “nobody wearing a plain dark style top could have been that person could it? It was definitely a person wearing a striped top?”, and she answered “yes”.[25]The cross-examination then turned to the accent of the person using obscenities, she confirmed that she had the impression that the person had a local accent, adding “there was nothing completely distinctive that would say that he came from another part at the time”. She would exclude a “strong Scouse accent, indeed any strong accent. Accents tend to merge”.[26]Counsel appreciated that there was not much point in pursuing the accent issue any further, but the witness agreed with him that she was far more definite about height and striped clothing. From the transcript it looked as though the cross-examination was at an end, but the judge invited counsel to make his position in relation to the identification clear. Mrs Ellis was then asked if she may have made a mistake, and she agreed that if the jumper worn by the assailant was a plain jumper, then she had. When it was put to her that she was trying to cling to the fact that she was right, she said “no, I’m just … it’s just what the person that I saw, the features ..” her evidence ended “no, the person that I picked out was the person that I thought all along but I really wanted to make 100% sure”.[27]There was no further cross-examination, and no reference was made to M8. Looking at the matter objectively, counsel had made progress in relation to the recollection of the witness in relation to height, and the description of the assailant’s sweatshirt, as given and adhered to by her, was at odds with the top clothing shown on the photographs taken of Cole in Healds shortly before the attack. The correctness of Mrs Ellis’ identification was crucial to the appellant’s conviction, and we shall return to it. As we indicated at the outset of the judgment, Mr Blaxland argued not only that the contents of M8 should have been introduced at the trial, but that Mrs Ellis should not have been invited to view the identification parade at all, a submission reinforced by his contention that the contents of the interviews which had taken place with Kirk before the identification parade in which he admitted that he was the man described by Mrs Ellis, should have been disclosed.

The Kirk interviews

[28]As will be appreciated, the contents of these interviews were not admissible as evidence in the trial of Cole. However their contents have been raised as a critical element in support of the appeal, and they therefore need close examination.[29]Kirk was arrested just after mid-day on 15 February at 4.19. he denied being involved in the incident. He was close by, in his girlfriend’s sisters flat in St Peters Close, when he heard a commotion outside at about 5.45. He saw a scuffle going on in St Peter’s Street and went out to watch for a few moments and then left. He denied knowing Handyside, or Dookie. He had arrived at his girlfriend’s sisters flat at about half past 4, 5 o’clock, and stayed there until about 8 o’clock.[30]At just after 3 o’clock in the afternoon on 16 February, Mellor was interviewed for a third time, and he gave a new account of how he and Kirk, together with Handyside and Dookie were all attacked by about four people in St Peters Street, two attacked Dookie, and two attacked Handyside, and he crossed over to the other side of the road, Kirk with him.[31]Before Kirk’s second interview the police disclosed the statement from Handyside in which he described that he was attacked by two men, who he did not know, one with a baseball bat, and the other with a knife, and having been struck with the bat and stabbed with the knife he ran off to the Variety, where the man with the knife came after him and confronted him. Neither assailant was Kirk or Mellor. At the start of this interview Kirk indicated that he wished to change a few things, after his solicitor had disclosed Handyside’s statement which had exonerated him.[32]Faced with this account Kirk admitted that he knew Handyside and Dookie, and that he was with them in St Peters Street when they were all attacked by a group of unknown men. In short, he was echoing the same account given to the police a little earlier by Mellor.[33]He admitted knowing Handyside, not well, but by name. A long narrative account was then given. The four men were walking together in St Peters Street when all of a sudden “these men come from nowhere. I can’t remember they just come from nowhere. All I can remember is John Dookie saying “what the fuck” and grabbing hold of me. I don’t know, I can’t remember if he hit me or all. I remember falling to the ground and then seeing these men all over John Dookie. I don’t remember seeing Stephen Mellor or Jamie Handyside at the time. … Then I were on the floor … all I saw were John Dookie running off and then I got up and run, I just got up and run … down Moor Lane through the alleyway … to Tammy’s, Becky’s sister and just stayed there.” He explained that he denied having been at the scene at the earlier interview because he didn’t want to get into trouble with the police.[34]His next account involved the same attack by this unknown group of men in which, after falling down on the floor, he just remembered “John Dookie running off and I got up and then someone chasing Jamie Handyside, and then he ran back to Tammy’s”. Effectively it was Dookie who had jumped on him. He was asked if he had seen Handyside or what happened to him. He explained that he had seen Handyside with blood on his head “a little bit”, but it all happened dead fast and he got up and ran away.[35]He recalled seeing Handyside going into the pub but he ran in the opposite direction. He was asked “Why didn’t you go in the pub with Handyside?”, and he replied that he didn’t know, but he thought Handyside knew who their assailants were. He was asked further questions directed to the question whether he had been anywhere near the Variety, and denied that he had, because he would not go into the place when Handyside had gone in there.[36]At 16.54, what was described as the third interview took place. In reality this was a continuation of the previous interview. His account was that he saw Dookie being struck “a couple of whacks”, and he ran away in the opposite direction towards Moor Lane, that is away from the Variety. He explained his account in the first interview of not knowing Handyside or Dookie on the basis that he didn’t want to get done for affray or anything like that. Now things had changed “now murder’s gone on”, he had got “to say everything”. “I’ve seen a murder so I’m scared”.[37]There was then a break. A new interview began at 20.25. By now the police had interviewed the woman, Tammy. Her account undermined Kirk’s story. Nevertheless, Kirk adhered to his story that all he saw was John Dookie running off, after which he got up and ran away towards Moor Lane, through the alley, to Tammy’s flat. He stayed there until 8 o’clock. After a series of questions this developed to him running away towards the Variety where he stopped on that corner and then ran way back down the alley towards Tammy’s home. When he went towards the Variety Handyside was on the corner and he saw him go into the Variety. He just ran away to Tammy’s. He didn’t go into the Variety because he was scared. In short, he continued to deny any involvement with Handyside at all.[38]On Monday 17 February, the witness statement was taken from Mrs Ellis. Thereafter Kirk was interviewed again. It was put to him that the evidence from Tammy and Becky showed that he had not called at Tammy’s flat until just before 8 o’clock. His response was that she was lying. The police made plain to him that they did not believe his story. They then read out the statement from Mrs Ellis in full. After doing so the officer said, “that to me is you”, then re-narrated Mrs Ellis’ description of the man chasing Handyside, and asked, “is that you?” Kirk’s answer was that he had run to the corner, it might have looked as if he was chasing Handyside and he did shout out something like “stitch up bastard” at him. He did not remember seeing any woman. He didn’t know where to go so he ran to Tammy’s. The interviewing officer persisted, ending “now that person she is describing is you, isn’t it?” To which Kirk responded “yes”. The description she had given might have fitted Kirk as the man who had used the knife on Handyside. The response did not carry with it any admission that Kirk was responsible for the attack on Handyside because shortly afterwards he made it clear that although he had followed Handyside, and shouted at him, he had stopped at the doorstep and looked around, and that as he did not know where to go, he ran away back down St Peters Street to Tammy’s. It is not accurate to describe what he said as an admission (albeit very late) that he was responsible for attacking Handyside with a knife at the Variety, or indeed attacking or participating in any attack at all on him.[39]In all these interviews Kirk never once mentioned that he had been with Cole just a few minutes before the attack happened. Indeed during his first interview he denied knowing Cole at all, even when the video stills taken at Healds were shown to him.

The Cole interviews

[40]We must now turn to the appellant Cole himself. After his arrest in Liverpool earlier, the first interview took place at 20.13 on the evening of 18 February. His solicitor was present.[41]He was asked if he had any connections with Preston and said that he had none really, but after further questions, he said that he did know Kirk, having met him for the first time in May or June that year. He had however never been over to Preston to see Kirk.[42]He was asked the direct question, “were you in Preston on 14 February?” and he replied “No”. He was reminded that this was Valentine’s night, and repeated “No”. He was in Liverpool for the whole day and the evening. He was asked what colour of top he had on, but “I don’t know to be honest with you”. After further questioning the interviewer returned to the direct point and put it to Cole that the police had been told that he was in Preston on Valentine’s Day. The response was “no. I know exactly where I was on that day”. There was “no way” he was in Preston on the 14th, at any time.[43]He did not own a mobile phone or a pager. He was certain of that. Again, it was suggested that the police believed he was in Preston, but he said that it was quite categoric that he was not.[44]Kirk might have his telephone number, he didn’t know, but he did not know Kirk’s number and he didn’t know, but he thought Kirk might have a mobile phone and he might have that number. If he had telephoned Kirk the last time was about 3 weeks earlier, not on the 13th or 14th February. He didn’t think he had. He adamantly repeated that on Valentine’s Day he was at his mother’s for tea.[45]Cole was interviewed again on the following morning at 11.33. He indicated that he was willing to stand on an identification parade. At the beginning he was happy “sticking with the stance” that he was not in Preston on the relevant day. By then a search had taken place at his mother’s address.[46]In relation to any photographs, he asserted that he did not know any girls in Preston and did not associate with any of them. He was shown a personal organiser, and denied that it was his. It was his sister’s property. He repeated that he was not in Preston at the time, he did know Kirk, but not Mellor. Kirk was just a friend. He had met him about four or five times. He might phone him every two or three days. He repeatedly asserted that he had not been in Preston on the date. It was put to him that he had been to Kirk’s mother’s home, and that her description closely fitted him, but his denials continued.[47]Shortly after the interview ended, at 12.20 on 19 February, the appellant asked for a further interview to reclarify an answer he’d given in relation to questions about Tammy. He said that he had seen Tammy in Preston and got talking to her. He just wanted to say for the tape that he knew her and that basically was it. He knew Tammy knew Kirk but he didn’t meet her through Kirk. He had been to her house about two or three times. He had never slept there. He knew that her sister was Kirk’s girlfriend.[48]At 18.05 on 19 February a further interview took place. Before this interview began the CCTV images which showed Cole in Healds shop in Preston on the 14th were disclosed. His account changed. His solicitor said that the appellant agreed to co-operate in this further interview following discussions that he (the solicitor) had had with the police and information they provided.[49]Cole now admitted that he had been in Preston on 14 February. He went down to see Tammy. He drove over to see her at about 5 o’clock. He knocked, she wasn’t in, and so he walked around and saw Kirk. He went into Healds. At the shops, he was with Kirk for about half an hour, and then returned to Tammy. There was a group of lads walking down the street. He followed some 10-5 yards behind them, when all hell broke loose. He immediately left. He left Preston because he wanted nothing whatever to do with the trouble.[50]Following his indication that he would be willing to stand on identification parades, he was told they were being arranged.[51]The next interview began at 18.45. By then he had been identified on the parade by Mrs Ellis, and his solicitor had been supplied with her statement. Cole responded that he had been in Preston, as he had indicated in his last interview and that was his account. Cole was asked about the sweatshirt he was wearing on the particular evening. It had not been found. It must be, he said, at either his mum’s house or his girlfriend’s house. The sweatshirt was missing. He had taken it home and probably took it off at his mother’s. He had no reason to get rid of it. He made clear that he did not have any sweater of the colours and the description given by Mrs Ellis, and he had not discarded the jumper he had been wearing when the photographs were taken at Healds. He said that he had not seen Kirk chasing Handyside, but whoever it was, it was not him.[52]The final interview with the appellant took place at 14.07 on 21 February. The only relevant significance of this interview, apart from the appellant denying any involvement, is that the questioning officers made it clear that it was important that he should find the jumper or sweater he was wearing when he was photographed at Healds.

Trial

[53]Before the trial began notice of alibi was given by Cole that, at the relevant time, he was close by the steps at the junction of Moor Lane and St Peters Street, Preston, to the left of a row of shops with flats above. As the scene and locations map shows, this is very close to the scene of the attack.[54]In his evidence, Handyside remained adamant that the man who had stabbed him was not Kirk.[55]In his evidence Kirk said that he had no idea that Cole was coming to Preston on 14 February. The telephone calls were social. They just bumped into each other outside Healds store when he was with Mellor at about half past five and Cole came around the corner. He asked him what he was doing there and Cole said that he had been to Tammy’s. Shortly afterwards Cole left them and the fight began. He saw Handyside fighting and scuffling and then running away. He decided to chase Handyside because he thought the attack was Handyside’s doing. He nearly had hold of him, but Handyside escaped and Kirk shouted “stitch up bastard”. He saw a woman with a shopping bag and looked into her face, and then jogged back down Moor Lane. The woman had seen him, Kirk, at the door of the Variety not Cole. It was an essential part of his defence that he had not used any form of violence, and in particular had not used a knife to attack either Dookie or Handyside.[56]Cole himself elected not to give evidence.[57]Mellor gave evidence. In it he described Handyside being attacked “and then Kirk near the corner of the Variety”.[58]Another co-defendant, Bosanko gave evidence that he had seen Cole “by the stairs near the shops looking down St Peters Street at the fighting”, something he had omitted to mention when he was being interviewed by the police.

The submission of “No case to answer”

[59]At the close of the prosecution case it was submitted on the appellant’s behalf that there was no case to answer. The foundation for the submission was that the quality of the identifying evidence was so flawed that the case should be withdrawn from the jury. There were discrepancies in the description given by Mrs Ellis, in particular in relation to height. Cole is 6’ 3” whereas Mrs Ellis said that the height was 5’ 10” going onto 6’. If he was still wearing the top seen in the video then Mrs Ellis herself accepted that she would have been mistaken in her identification because of the striped top worn by the man who attacked Handyside. Her identification at the parade was hesitant and filled with reservations. The Crown’s response was that the case went well beyond Mrs Ellis’ identification. The record of the timing of telephone calls and communications between Cole and Kirk and Mellor supported the contention that Cole was recruited to be a member of the Kirk/Mellor gang, and the lies told by Cole in interview were highly material. The course of these interviews has been fully narrated in the judgment, and particular attention was focussed on the denials that Cole had ever been in Preston at all, and his further denials of telephone communication or the means of telephone communication were relevant.[60]The judge concluded that the submission amounted to no more than “there are telling points to be made for Cole to the jury … It would be quite wrong at this stage to withdraw the case … In my view, a crucial part of Mrs Ellis’ evidence was that the clothing was secondary and the features were her first consideration. She had a face-to-face confrontation with this man, albeit very short, but in good lighting and her evidence is, in my judgment, classically the sort of evidence that a jury should decide upon. In my view also, (counsel for the prosecution) is right when he says I should look at the whole spectrum of the prosecution case against Cole in deciding on this submission. I have done so and there is plainly a case to answer”.

The summing up

[61]No criticism has or could be mounted against the judge’s direction about the caution required in identification cases. He directed the jury to pay particular attention to the question whether there were any material discrepancies or differences between the description of the man given by Mrs Ellis to the police and in her evidence, as against the actual appearance of Cole. All the relevant matters relied on by leading counsel on behalf of Cole were fairly highlighted before the jury. The judge ended this part of his directions by referring to the lies given by Cole in his interviews, and adding “lies on their own cannot put him by the door of the Variety public house. If you regard that identification as valueless and unsafe, ignore the lies and find Cole not guilty”. In effect this direction was given on a second occasion. Cole should be found not guilty if the jury were “to decide that the identification evidence is so flawed that it cannot be relied on at all, neither lies nor failure to give evidence can supply … the deficiency”. There was debate about the precise effect of these directions. At the end of the summing up the judge reminded the jury of the arguments deployed on behalf of Cole. Again, it had never been suggested that they were either incomplete or unfair.[62]In due course Cole was convicted on both counts by a unanimous verdict.

The first application for leave to appeal

[63]Leading counsel advised that an application for leave to appeal should be launched on a number of what he described as “fundamental weaknesses” inherent in the identification made by Mrs Ellis. The thrust of the application was that the judge should have upheld the submission of no case to answer.[64]Leave to appeal was refused by the single judge. The application was renewed to the full court. The argument advanced on behalf of the appellant was that the trial judge was wrong to reject the submission that there was no case to answer, a submission based on the contention that the evidence of Mrs Ellis was so unreliable that it should not have been left to the jury.[65]In the judgment of the court delivered by Rose LJ, the Vice President, the criticisms made of the evidence of Mrs Ellis were analysed in detail. The criticisms were underpinned by the contention that the individual identified by Mrs Ellis was in fact Kirk. The submission was rejected. The judge was “entirely right” to leave the matter to the jury.

The reference by the CCRC and this appeal

[66]M8 provides evidence which was not introduced at trial.[67]The case now advanced on behalf of the appellant begins first by suggesting that there were no sufficient grounds to suspect that the appellant was the person described by Mrs Ellis, and so she should not have been invited to view the identification parade line up. Her first description should have been disclosed to the solicitor for the defendant before the parade took place, and so should the admission made by Kirk in interview that he was the person described by Mrs Ellis after the police had suggested to Kirk that it was him. If all that material had been disclosed, objection would have been taken to the identification parade. No proper basis for holding the parade had been established. Any identification of the appellant would be unsafe. Attention was drawn to the decision of the House of Lords in Forbes [2001] 1 Cr. App. R 31 with particular focus on the observations of Lord Bingham about the relevant Code of Practice, and its salutary reminder of the dangers and risks of wrongful convictions based on eye witness identification evidence.[68]Two further submissions were, first, that the trial judge and the Court of Appeal were wrong to conclude that lies told by the appellant to the police and the other circumstantial evidence was capable of corroborating the identification by Mrs Ellis, and, second, the judge failed to direct the jury that they could not draw any adverse inference against the appellant arising from his failure to give evidence.[69]In summary therefore the grounds of appeal are that(a) Mrs Ellis should not have been invited to view an identification parade which included the appellant(b) There was non disclosure of M8 before the parade, and the content of the admissions made by Kirk, together with the observations of the police during the interviews before the parade took place(c) M8 was not introduced at trial(d) There was no corroboration of Mrs Ellis’ identification(e) The adverse inference direction was flawed.[70]To the extent that these grounds of appeal were not covered by the CCRC in the Reference, leave to argue with them was sought. These grounds are sufficient to cover the matters raised by the CCRC, and we thought it appropriate to examine all the grounds relied on by Mr Blaxland. None the less it is clear from the prolonged investigation into all the circumstances surrounding M8 that without M8 this conviction would not have been referred to this court.[71]The way in which the judge directed the jury about the approach they should take to the evidence of Mrs Ellis, as understood by the CCRC, formed the crucial part of its reasoning in making the Reference. The judge’s directions are set out at paragraph 61 above. Although we agree with the CCRC that the circumstantial evidence, or the evidence supporting the correctness of Mrs Ellis’ identification, standing on its own, would not have been sufficient to justify the conviction, as the Commission acknowledges, this evidence undoubtedly posed what they correctly describe as “difficulties” for the appellant at trial. The reality is that the reliability of the identification made by Mrs Ellis derived powerful support from the circumstantial evidence. If the judge was directing the jury that they should approach her identification in a separate compartment to the rest of the evidence, then the direction was wrong and over favourable to the appellant.[72]In our judgment whatever language the judge may have used to underline the importance of her evidence to the verdict, to the extent that he may have said or implied that her identification could or should be compartmentalised, and the decision about its accuracy made without reference to extraneous circumstantial evidence which supported or undermined confidence in its reliability, the jury would have been misdirected. What is more, if the judge was directing the jury in this way, then it is not to the advantage of the appellant that, despite the full and careful cautionary warnings, the jury was prepared to convict him. They plainly did not regard the identification as valueless or flawed. However, to the extent that it was open to legitimate criticism, as it was, then the jury was entitled to consider the remaining evidence and set it in the balance against those criticisms, and form a view based on the whole of the evidence. Unless the judge was attempting to direct the jury in the over favourable way to the defendant which we have outlined, what he was actually addressing was the alternative way in which the prosecution was advancing the case against the appellant, which was that even if Mrs Ellis was to be ignored altogether, the remaining evidence, put into the undisputed context of the events at and around the scene, would be sufficient on their own to justify a conviction. In our view the judge was right to direct the jury that they should not convict on this alternative basis.[73]In reality the correctness of the identification was provided with powerful support independent of Mrs Ellis. In a properly conducted identity parade, having focussed specifically on the face of Handyside’s assailant, she identified an individual who undoubtedly was present in the immediate vicinity of the fight and who, just a few minutes before the fight began, had been in close company with the major protagonists on one side who were guilty of criminal involvement in the fatal attack on Dookie and the attack on Handyside. The level of telephone and pager communication between the appellant and Kirk (and Mellor) on 13 and 14 February, reinforced the contention that his presence at just this place, at just this time, when yet another confrontation in the escalating violence between two rival drug dealing pairs was about to take place was not simply coincidental. Moreover, notwithstanding that his visit to Preston had, if he was telling the truth, a wholly innocent explanation, Cole had lied repeatedly, beginning by denying that he was anywhere near Preston itself, and then, as each lie was demonstrated, taking refuge in a new lie, and lying too, about the fact of his repeated communications with Kirk on the crucial dates.[74]Neither he nor anyone else was able to produce to the jury, or offer an explanation of its disappearance, of the sweater or jumper he was wearing when he was videoed in Healds. The garment was never found, and its disappearance has never been explained. If Cole was not directly involved there was surely nothing whatever to conceal or destroy or lose apparently so quickly after the incident. As to the suggestion that the man identified by Mrs Ellis was not Cole but Kirk, we note that her description of Handyside’s attacker was said by interviewing police officers to fit him, and that he eventually went along with their assertions, but not before he had given wholly different descriptions of his movements that evening throughout various interviews. The reality is that if Kirk was attacking Dookie at just the same time as Handyside was making away from the scene (and there was ample evidence to support Handyside’s description of Kirk attacking Dookie), Kirk could not have been the man who chased Handyside to the Variety. Handyside knew perfectly well who Kirk was, and that he was a rival, if not by now, an enemy. He had ample opportunity to identify Kirk as the assailant with the knife. Mr Blaxland was unable to provide any possible explanation why, if the assailant was Kirk, Handyside should fail to incriminate him, but to the contrary, insist that Kirk was not his assailant. There is no conceivable reason why he should have denied that he was. On the other hand by, eventually, stating that he had followed Handyside, the advantage to Kirk was that he was putting distance between himself and the man who wielded the knife on Dookie.[75]By the time the identification parade took place the police knew that Mrs Ellis asserted that she had been at pains to observe the face of Handyside’s assailant. They knew that he was with Kirk and Mellor very close to the scene, very close to the time of the attack. They knew that Handyside had been attacked by someone who was a stranger to him. And finally they knew that rather than offer an innocent explanation for his presence at or near the scene, Cole had told a series of lies about his movements at the crucial times. They knew that in purported support of his lying alibis, Cole had indicated a willingness to participate in ID parades.[76]At the relevant date the identification process contained in Code D of the Codes of Practice under the Police and Criminal Evidence Act 1984. D2.3 provided not only that an identification parade “shall” be held if the suspect consents where an identification is disputed, but one may also be held if the officer in charge of the investigation considers it useful, and the suspect consents. In short, in some circumstances a parade must be held, and in others, in the course of a judgment to be made by the officer in charge, that a parade would be “useful”, one may be arranged.[77]In our judgment the proper investigation of a fight in the street with fatal consequences to one protagonist, and serious injury to another, witnessed by a number of people who have given different descriptions of the assailants would normally make a series of identification parades not merely “useful”, but probably essential. In our view in this particular case it would have been remiss of the investigating officer not to have made the appropriate arrangements.[78]We should perhaps add this, on the basis of the decision in the House of Lords in Forbes itself, given that the arrest of the appellant was justified, (and the contrary has not been suggested), that Mrs Ellis indicated her ability to identify Handyside’s assailant, and that the appellant had strongly denied any involvement in that incident, the police would have been obliged to conduct a parade.[79]None of these considerations undermines our view that it was a clear breach of Code D that the solicitor acting for the defendant was not informed of the contents of M8 before the identification parade involving Mrs Ellis took place.[80]That leads, first, to the question whether an application might have been made under s.78 of PACE to exclude the evidence based on the identification parade for breach of the Code. Standing on its own, such an application would have failed. That, however, leads to the further question, whether if the additional information which became available to the appellant’s solicitor after the parade had been available before it, (that is, M8, and Kirk’s eventual admission), he would, as he now says, have advised his client not to participate. We imply no criticism whatever of the solicitor, who was reflecting many years after the event on what advice he would have given to his client in relation to an identification parade on which, as it turned out, he was positively identified by a witness, and later convicted. Before that identification parade took place, he had clearly been alert to all the issues arising from the information then available, including descriptions as to the clothing worn by the suspect, and the potential problems for his client if the members of the parade were standing rather than sitting down. What however is clear from his record is that the approach of the police to the problem was that if the appellant did not consent to the identity parade some “other form” of identification parade would be organised in any event. It would, we believe, have been quite unrealistic for the defendant to have been advised to decline to consent to participate in a parade involving Mrs Ellis, but to consent, having indicated that he was willing to attend a parade, to a parade with other potential witnesses. Moreover, if the consent was withdrawn altogether, the dangers consequent on the defendant declining to participate in less well organised and properly protective methods of enabling an identification process to occur would have been stark. Indeed the risk that the defendant might have been identified by another witness in an identification procedure conducted in an environment less protective for the defendant was not insignificant. These are not the sort of risks which a wise solicitor would advise his client to take. Faced with the choice between identification parades carried out in accordance with the processes designed to achieve the greatest possible protection for a defendant, and those where the level of protection is inevitably reduced, such as “group-identification” or “confrontation” we very strongly doubt whether the appellant, who had already indicated a willingness to go on to an identification parade, would have been advised to withdraw his consent.[81]In any event, however, all the relevant parades were properly conducted. We do not think that the result of the parade some 15 years later should now be excluded on the basis of the possibility that, if different information had been given to the defendant’s solicitor, this might have led to different advice being given to the client, and that in turn might have resulted in a decision by the client not to consent to the parade.[82]We must now address the omission at trial of any reference to the contents of M8. In view of the analysis at paragraphs 15 and 16, the appeal has proceeded on the basis that the contents of M8 were properly disclosed by the prosecution well in advance of the trial.[83]We have reflected carefully that when he first saw M8 some years after the trial, leading counsel then under the impression that he had not seen the document, said that the likelihood is that he would have deployed the contents in cross-examination, whereas now that he has remembered having seen the document he recollects the strategic forensic decision not to deploy it.[84]In reaching our own conclusion we have reconsidered the entire transcript of the cross-examination by counsel of Mrs Ellis. The transcript suggests that he believed that useful progress had been made in support of the defendant’s case that the identification was not sufficiently reliable. Moreover, it is also clear that in her evidence the focus of the witness’ telephoned report as recorded in M8, and indeed her written statement taken on 17 February, on her close facial proximity to the face of the assailant, and her deliberate concentration on his face with a view to identifying him at some future date, had not fully emerged, and to the extent that it had emerged, would have been given considerable additional emphasis. In essence the forensic decision was whether to risk undermining the progress that had been made by enabling the Crown to underline that this woman had telephoned the police on the day after the incident (presumably after the reports of Dookie’s death had become public) and that she had deliberately concentrated on the face of the assailant who she identified shortly afterwards. In other words, descriptions and inconsistencies about some of the other details could be brushed aside by the prosecution as inevitable in view of the way that the witness had concentrated on remembering the face of the assailant.[85]We can only address this issue on the basis of our collective experience. In view of the way in which the cross-examination had proceeded there were, in our view, sound tactical reasons for leaving M8 to one side. That said, we also recognise that different advocates might have taken a different view. However, in any event, making the decision years later, on paper, cannot possibly replicate the difficulties involved in the strategic decision about the conduct of a case in which so much turned on the cross-examination of the witness. Certainly, the decision at this trial was not unreasonable. There is a sufficient explanation for the decision not to deploy the contents of M8 in cross-examination: in essence, the overall effect might have been to diminish the progress which was thought to have been made.[86]Tempting as it may be, we cannot leave M8 there. In our judgment the interests of justice require us to admit it in evidence. We must reflect on its contents as a whole, and examine whether, in the light of all the evidence at trial, reservations about the correctness of Mrs Ellis’ identification of the appellant are created, and the safety of the conviction undermined. In doing so we have reminded ourselves of the well documented dangers of a miscarriage of justice where a conviction depends on eye witness identification. If the contents of M8 had been used some further inconsistencies in Mrs Ellis’ description would have emerged, but there would have been a correspondingly increased concentration on what she, at the time, was actually focussing her attention. The reality is that the correctness of her identification of the appellant was given very powerful support by the remaining evidence. Without the benefit of the contents of M8, the jury did not entertain any reservations about it, and having examined the contents of M8, we do not think that this conviction is unsafe.[87]The criticism of the judge’s direction in relation to adverse inferences from the defendant’s decision not to give evidence at trial was not at the forefront of Mr Blaxland’s submissions. The direction was amply justified, and even in the light of subsequent decisions of this court, the way in which the jury was directed was not inappropriate or unfair.[88]Accordingly, although the case was rightly referred to this court by the CCRC, the appeal against conviction will be dismissed.