R v DS [2014] EWCA Crim 933

[2014] EWCA Crim 933Case No 201303896/C4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 1st May 2014
Strand
London, WC2A 2LL
B e f o r e:
PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR BRIAN LEVESON)
MR JUSTICE COULSON
MR JUSTICE GREEN
Between
R E G I N ACrownDSDefendant
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 S Leake appeared for AppellantMr D Wood appeared for Crown
J U D G M E N T
[1]PRESIDENT OF THE QUEEN'S BENCH DIVISION: On 21st June 2013 in the Crown Court at Croydon before Her Honour Judge Downing and a jury the appellant was convicted unanimously of robbery. On 19th February 2014 he was sentenced to eight-and-a-half years' detention in a young offender institution and a victim surcharge order was made in the sum of £120. He now appeals against conviction by leave of the single judge.[2]The facts can be shortly stated. On the morning of 10th November 2012 a robbery occurred at a dwelling-house in Kent, the exterior of which was covered by CCTV. The owners of the house were not present. The robbery was facilitated by means of a staged parcel delivery. The prosecution case was that the appellant was one of the three men who entered the address and committed the offence. Proof depended on identification evidence. The defence case was denial of any involvement. The appellant was not present and any identification of him was mistaken.[3]In the light of the challenge to the identification it is appropriate to set out the evidence in a little detail. At about 9.30 am on 10th November Alison Basey, a cleaner who did not normally work on a Saturday, had arrived as arranged. The house was then empty and she let herself in. A short time later she heard the door bell ring and when she looked through the frosted glass of the door she saw two men standing there. They were wearing high visibility jackets and she thought a box was being held and rested against the glass. She opened the door and saw two black men. One of them was holding a clip board and another one a box. One of them said he had a delivery. When Mrs Basey lent forward to look at the delivery note she was pushed inside. Both men rushed into the house and she saw a third man approaching from a white van who also entered the property.[4]One of the men went straight upstairs. She was made to stand against a wall by the other two. The man she referred to as "male No 1" threatened her. He and the second man bound her mouth and nose with parcel tape. Her vision remained unobscured. Male No 1 was the one who had been holding the clip board. He had spoken to her several times and grabbed her neck when asking her questions. He was not wearing anything to hide his face and did nothing to conceal his features. After 15 minutes or so the men left the house with various high value items including a safe.[5]Two neighbours realised something was wrong and when they called at the house they found Mrs Basey in a distressed condition with her mouth taped. She was trying to telephone the police. They had heard a scream so kept an eye on the van and made a note of its registration number. It was in fact displaying false number plates. Mrs Basey described the attackers. She said that male No 1, allegedly the appellant, was about 5 foot 6 to 5 feet 8 in height, stocky build, with short cropped hair.[6]As we have said, the exterior of the premises was captured by CCTV cameras. On 21 November an article was published in a local newspaper "The News Shopper", which included a still extracted from the CCTV of two of the three men who carried out the robbery. On 20 December 2012 the appellant was one of several men arrested for unrelated matters. On that date, for about one-and-a-half hours, PC Challis was in the same room as the appellant. Although he had no personal dealings with him, the officer had seen CCTV images of him. He had the feeling that he had seen the appellant somewhere else recently. When he returned to the police station he carried out a search on the computer. He viewed the New Shopper article and recognised the man with the clip board as the appellant. He telephoned those responsible for the detention of the appellant and told the officer on duty that he had identified someone who was in their charge.[7]It was agreed the appellant would be arrested and held pending the arrival of the relevant Bromley officers. He also sent an e-mail to DC Cook at Bromley CID informing him of his recognition. Unfortunately this e-mail was not retained and it could not be retrieved from the system. The next morning he made a more formal witness, setting out the circumstances and basis for his recognition, for which purpose he used a statement previously used which was amended for the purposes of this case.[8]Although the precise image seen by the officer was not available, an electronic version of the image the officer could have viewed from the Internet was put before the jury so the quality of that image was before them. The officer maintained that the image he had seen was clearer than that shown before the court. In any event, armed with this information, the appellant was arrested and 21st December a video identification parade held.[9]Mrs Basey attended a video identification parade and picked out as male No 1 the appellant (image number 5): he is in fact 5 foot 8 inches in height. She identified him as the man who had been holding the clip board. She said "her heart was in her mouth" when his image appeared and went on:
"I feel number 5 is the most likeness. I cannot be 100% sure."
She clarified this by saying:
"His hair was shorter now than at the time of the robbery."
At the end of the parade she said if she had to express in percentage terms she would have said it was between 80% and 85%. When she gave evidence she said she was sure of the image of No 5 of the appellant was one of the men involved in the robbery.[10]Cross-examined Mrs Basey said her identification was based upon looking at the appellant in the face, because he was the one who spoken to her about the delivery. She may have been wrong about which man pushed her inside but was not mistaken about the identity of the man in image number 5. She said that the sight of him had provoked an intense reaction, with her heart stopping or heart skipping. She would not have such an emotional reaction had it been the face of a stranger. The doubt she expressed at the parade was based on the length of the hair, not being as she recalled it. The prior statements were put to her and were admitted into evidence for the jury to evaluate along with all the other material which they had.[11]When interviewed the appellant stated vehemently that he was not the man depicted in the CCTV footage. He gave some replies but in the main declined to answer questions. We add that he did not give evidence.[12]Evidence was however called by the defence from an expert in facial mapping. He described the quality of the CCTV footage as very poor and provided illustrations and comparisons for the jury to consider. From his perspective he could not conclude the person in the footage was not the appellant, no more could he rule him in as being the man. Of the 10 components parts of the human face that the expert analysed he did not say it was definitely not the appellant, the weight that it had however was low.[13]No challenge is made to the careful way in which the judge summed the case up to the jury. Rather the appeal before this court is mounted on the basis of a challenge first to the judge's decisionon a voir dire to admit the evidence of PC Challis and secondly, to her rejection of the submission of no case to answer.[14]Dealing with the first ground an application was made by the defence to exclude the evidence of PC Challis pursuant to the provisions of section 78 of the Police and Criminal Evidence Act 1984. Essentially three points were taken. The first was that the circumstances in which the recognition was carried out were in breach of Code D. The second concerned the loss of important material, specifically PC Challis' missing e-mail. Finally there was a challenge to the quality of material which would be admitted if the submission was unsuccessful.[15]The judge stated the appropriate way forward was to start with the procedural grounds related to code D and those matters in particular. She considered the decisions in R v Smith [2009] 1 Cr App R 36, [2008] EWCA Crim 1342, R v Moss [2011] EWCA Crim 252 and R v Deakin [2012] EWCA 2637. She acknowledged that there was an ever increasing problem in view of the amount of CCTV material now available that a police scanning footage would recognise someone who was involved in or allegedly involved in a matter under investigation.[16]However, the defence submission as to the strict adherence to the Codes would mean that PC Challis' evidence would never see the light of day. Barring a chance request by another officer for him to look at the screen which was being submitted was that PC Challis should have found another officer and asked him or her if they recognised the appellant and so on inferentially until he found an officer who agreed with his recognition. In such a case his evidence would have undoubtedly had been inadmissible since it was a classic situation the Code was designed to stop, that is to say the subconscious of one officer's judgment by another.[17]Faced with the choice between evidence from an officer who behaved and acted as PC Challis had and this type of evidence never seeing the light of day, she unhesitatingly said the evidence should be admitted and thus she refused the application. This was not a weak case being shored up by recognition evidence from one officer, here the recognition came first and was followed shortly thereafter by Mrs Basey's identification evidence. The evidence of the constable could properly be dealt with by the defence within the context of a continuing jury trial.[18]In this court Mr Steven Leake argued that paragraphs 3.34 to 3.37 of the Code of Practice were engaged. These provide as follows:
"3.34 This Part of this section applies when, for the purposes of obtaining evidence of recognition, any person, including a police officer: (a) views the image of an individual in a film, photograph or any other visual medium; and (b) is asked whether they recognise that individual as someone who is known to them. 3.35 The films, photographs and other images shall be shown on an individual basis to avoid any possibility of collusion and to provide safeguards against mistaken recognition (see Note 3G), the showing shall as far as possible follow the principles for video identification if the suspect is known, see Annex A, or identification by photographs if the suspect is not known, see Annex E. 3.36 A record of the circumstances and conditions under which the person is given an opportunity to recognise the individual must be made and the record must include: (a) Whether the person knew or was given information concerning the name or identity of any suspect. (b) What the person has been told before the viewing about the offence, the person(s) depicted in the images or the offender and by whom. (c) How and by whom the witness was asked to view the image or look at the individual. (d) Whether the viewing was alone or with others and if with others, the reason for it. (e) The arrangements under which the person viewed the film or saw the individual and by whom those arrangements were made. (f) Whether the viewing of any images was arranged as part of a mass circulation to police and the public or for selected persons. (g) The date time and place images were viewed or further viewed or the individual was seen. (h) The times between which the images were viewed or the individual was seen. (i) How the viewing of images or sighting of the individual was controlled and by whom. (j) Whether the person was familiar with the location shown in any images or the place where they saw the individual and if so, why. (k) Whether or not on this occasion, the person claims to recognise any image shown, or any individual seen, as being someone known to them, and if they do: (i) the reason (ii) the words of recognition. (iii) any expressions of doubt (iv) what features of the image or the individual triggered the recognition. 3.37 The record under paragraph 3.36 may be made by: • the person who views the image or sees the individual and makes the recognition. • the officer or police staff in charge of showing the images to the person or in charge of the conditions under which the person sees the individual."
[19]Mr Leake went on to submit that PC Challis viewed the images depicted in The News Shopper for the purpose of obtaining of recognition.[20]The mischief at which the Code of Practice was directed was the mere assertion the police officer recognised a subject without any objective means of testing the accuracy of the assertion. That was why records were important. This problem was aggravated by the failure to keep a contemporaneous record. Furthermore, the officer did not look at the image to see if he recognised anybody he knew within it. He specifically looked to see if it was the applicant which was no different to being asked by another officer to see if he recognised the applicant which was advice identified of Deakin and the problem of suggestibility was the same. Finally the issue caused further prejudice because of the poor nature of the image.[21]For the Crown, Mr David Wood submits although there must be safeguards to ensure the mistaken identification does not result in a conviction of an innocent defendant. As the judge recognised it is equally important that police officers were able to use their initiative to generate evidence properly probative of guilt. In relation to code D what matters is "not so much slavish adherence to procedure but evidence that enables the jury to assess the reliability of the evidence of recognition however it is provided" - see Moss at paragraph 20. Furthermore, it was clear that PC Challis informed his superiors immediately and that even code D was engaged, which Mr Wood did not concede, virtually all the matters set out in 3.36 were apparent either expressly or by implication. Finally, as for the quality of the image, Mr Wood argued there was a distinction in scientific comparison and recognition evidence which distinction the expert acknowledged.[22]In our judgment it is important to underline that PC Challis was not asked to look at the image in the newspaper and say whether he recognised anybody on the basis the police had identified a suspect. In this case, at that time, there was no suspect. The investigating officers had an eyewitness but had not linked the appellant to the crime. What the officer did was to spend time with the appellant for other reasons and to appreciate that he had seen him somewhere in connection with some crime somewhere before. He then searched the computer not for images of the appellant but rather for the image that was imprinted in his memory and the link that he made with that image and the person he had just spent time with or more specifically whether there was such a link. This was not an identification of a known suspect as envisaged by the Code of Practice.[23]We add only this. As the single judge observed, the widespread of CCTV for the purpose of investigating crime was clearly not foreseen in the drafting of code D. In our judgment this Code of Practice could repay further reconsideration in the light of present circumstances.[24]As to the particular facts of this case, the judge was entitled to take the view that she did of the evidence of PC Challis and leave it to the jury to assess the quality of that evidence against the image which they saw. Whether or not the Code was engaged a failure to provide the e-mail and the concern as to the image seen by PC Challis, in the context of this case, was not such, in our judgment, that the judge was bound to conclude that section 78 was engaged in such a way, as to cause her to reach the view that unfair prejudice was caused to the appellant.[25]PC Challis' statement identified how it was he was able to recognise the appellant, when and where he was when he did so and the fact that he was alone. All these were capable of investigation in cross-examination. Thus, the judge was entitled to reach the conclusion that she did and this ground of appeal fails.[26]The second ground of appeal concerns the failure to accede to a submission of no case to answer. At the close of the prosecution case Mr Leake argued that in light of what Mrs Basey volunteered during the parade, that is the 80% to 85%, the quality of identification was poor within the meaning of R v Turnbull [1977] QB 224, such that even with the evidence of PC Challis, the overall state of the material before the jury way such that it should have been withdrawn. The judge disagreed. She ruled there was cogent evidence from Mrs Basey, based on good opportunity in extremely good circumstances to make that identification. The issue of the meaning of 8% to 85% was a perfectly proper and safe matter to leave to the jury. In addition to that evidence there was the supportive material from PC Challis. There was some significance that his recognition set in train the entirely separate procedure with an important difference as to the sources of identification evidence.[27]The judge acknowledged that PC Challis' evidence was less cogent but concluded it did add weight and some support in general terms to evidence of Mrs Basey. It was not two pieces of poor identification in any way going to bolster each other or anyway likely to lead the jury into error. The jury might have serious doubts about the reliability of the evidence but that was a matter for them and not her.[28]Mr Leake repeated the submission in writing before the court and Mr Wood argued that there was no question of this identification either being a result of a fleeting glimpse and the qualification of the identification parade had to be seen in the context of evidence in chief when she described the strong emotional reaction to viewing the appellant's image and the evidence she was not mistaken about the identity of man No 5.[29]It is sufficient for us to say that we have no doubt the judge was right to conclude there was sufficient evidence to be left to the jury. This was not a fleeting glimpse within the Turnbull principle and neither was the evidence of such a tenuous character because of inherent weakness, vagueness or inconsistency that a jury properly directed could not convict: see Galbraith 73 Cr App R 124.[30]In the event, as we have said, the jury were properly directed and provided with full and ample warnings both as to identification and recognition generally but also to the possible ways to treat Mrs Basey's reaction as she described it both from the prosecution's perspective but also from the perspective of the defence.[31]In the circumstances this appeal is dismissed.