Lariba & Ors v R [2015] EWCA Crim 478

Case No 201303288 C5201305229 C5201303290 C5[2015] EWCA Crim 478
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM The Central Criminal Court
His Honour Judge Bevan QC
T20127450
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/03/2015
Before
LORD JUSTICE PITCHFORDMR JUSTICE COOKEMRS JUSTICE LANG DBE
Between
ReginaRespondent
David Spens QC and Graham Arnold (instructed by Lloyds PR) for AppellantJulia Smart (instructed by Blackfords LLP) for 1st Applicant for The 2 nd Applicant was not representedSimon Denison QC (instructed by Crown Prosecution Service) for RespondentHearing Hearing dates: 26th February 2015
JudgmentLord Justice Pitchford :The Appeal and applications
[1]Billal Lariba was born on 21 September 1994 and is now aged 20 years. Tershan Edwards Dos Santos was born on 14 November 1993 and is now aged 21 years. Brandon Brian Hamilton was born on 1 August 1994 and is now aged 20 years.[2]On 8 April 2013 their trial commenced at the Central Criminal Court before His Honour Judge Bevan QC upon an indictment charging them jointly (together with Travis Bowman) in count 1 with the murder on 10 April 2011 of Negus McLean. In count 2 Hamilton was charged alone that on 8 April 2011 he wounded Okan Dumlupinor with intent to do him grievance bodily harm. A fifth defendant Yasmin Latif was charged in count 3 with perverting the course of justice. On 24 April 2013 Hamilton changed his plea to guilty to count 2. The trial proceeded on counts 1 and 3. On 28 May 2013 the jury returned unanimous verdicts of guilty of murder and, in Yasmin Latif’s case, a unanimous verdict of guilty of perverting the course of justice.[3]At the sentence hearing the offenders were sentenced as follows: Billal Lariba, Tershan Edwards Dos Santos, Brandon Hamilton and Travis Bowman were ordered to be detained at Her Majesty’s Pleasure. Lariba’s minimum term under section 269 (2) of the Criminal Justice Act 2003 was set at 16 years 6 months; Edwards Dos Santos’ at 17 years; Hamilton’s at 19 years; and Bowman’s at 12 years 6 months. In Hamilton’s case the judge increased the minimum term so as to reflect the totality of his criminality represented by his conviction upon count 1 and late his plea of guilty in respect of count 2. The judge accordingly imposed in respect of count 2 a concurrent sentence of 5 years detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. Yasmin Latif was sentenced to a detention and training order for 12 months.[4](i) Lariba has leave from the single judge to appeal against his conviction. His grounds concern the trial judge’s admission of evidence that police officers recognised Lariba from a CCTV recording proximate to the scene of the attack on the deceased. Lariba was refused leave to appeal against sentence in respect of which he makes a renewed application.(ii) Edwards Dos Santos renews his application for an extension of time of 4 months within which to seek leave to appeal against conviction. . He seeks to advance his ground of appeal that he was not adequately represented at trial and for that reason was not fairly tried.(iii) Hamilton renews his application for leave to appeal against sentence.[5]The appellant Lariba is represented by Mr Spens QC who also represented him at trial. The applicant Edwards Dos Santos is now represented by Ms Smart who was not trial counsel. The applicant Hamilton is not represented but we have considered the written argument addressed to the court in his grounds. The prosecution was represented at trial by Mr Denison QC and he now appears for the respondent in the appeal.[6]We shall first consider Lariba’s grounds of appeal against conviction.

The evidence

[7]Those charged with murder were, the prosecution contended, members of the Get Money Gang (“the GMG gang”) based in Enfield, north London. Their enemies were members of the Dem Africans (“DA”) gang in neighbouring Edmonton. Negus Mclean, aged 15, was a member of DA. At about 7.22 pm on 10 April 2011 in broad daylight Negus McLean was pursued by a group of seven members of the GMG gang who had “ridden out” on their mountain bikes in search of a DA victim. Having cornered Negus McLean they attacked him fatally with a bar and knives and kicked and punched him. During the year preceding the attack there had been at least eight tit-for-tat stabbings between the two gangs. In 2010 the applicant Edwards Dos Santos had been a victim. On 3 April 2011 a GMG member, Jamal Mohamoud, was stabbed and thrown in a canal by a member or members of the DA gang. On 8 April 2013 the applicant Hamilton was on his own admission part of a GMG gang that found, chased and stabbed Okan Dumlupinor, a member of the DA gang. The killing of Negus McLean was the culmination of these dreadful events.[8]The police received precious little assistance from the victims of these attacks. The investigation into the murder of Negus McLean suffered similar difficulties. However, the police were aware of the history and they knew that Negus had been pursued by a group of youths on mountain bikes. Officers carried out a painstaking search of CCTV footage recovered from public places and private premises in an attempt to trace the journey of the attackers to and from the scene of the killing. From many hours of footage officers were able to create a composite recording showing the outward journey of seven cyclists to the vicinity of the attack and their return. The first camera shot picked up the group at 6.51 pm on 10 April 2011. Their journey and search lasted until 7.22 pm when at the junction between Bounces Road and Hertford Road they spotted Negus McLean and his 13 year old younger brother. The sudden change of direction by the cyclists and their victim is graphically shown in an overhead camera shot at the junction. The chase by the cyclists, who paid little or no heed to traffic, was determined and terrifying. The recording demonstrated that the attackers were a group who searched, found and arrived at the scene of the killing and returned afterwards. It was possible to establish the homogeneity of the group only by reference to their general appearance and orchestrated movements.[9]Each member of the group had to a greater or lesser extent disguised his appearance with the use of clothing and face coverings. However in an attempt to generate evidence to assist the investigation, on or after 10 April 2012 the investigating team placed their compilation recording on public media by means of Crimewatch and YouTube, thus inviting a response from members of the public.[10]Some members of the Enfield Safer Neighbourhood Team and the GMG gang were well known to one another. Police Constable (“PC”) Charlie Leather had been a member of the team since 25 October 2011. He had got to know the GMG gang well by seeing and talking to them on a daily basis. On 23 April 2012 when he became aware of the availability of the recording on the internet he viewed it on his home computer while off duty. He gave evidence that he watched it four times and used the pause facility. Among the views of the cyclists was one recorded by a CCTV camera mounted on the wall outside a shop in Bounces Road. It depicted in colour and at close range the seven cyclists cycling on the pavement approaching and passing under the camera on their way to the junction with Hertford Road where they spotted their victim. Unlike the others, the fourth cyclist in line was not wearing a hood or a hat. He had a shoulder bag with him whose strap he could be seen wearing diagonally across his chest from his left shoulder. He appeared to be wearing a hoody underneath his sleeveless puffa jacket. He was riding his mountain bike in an attitude of some insouciance with his left hand on the handlebars and his right hand resting against his right thigh. The hair and hairline on the suspect’s forehead were clear as were the forehead, the eyebrows, eyelashes and orbits and the bridge of the nose. The chin, mouth and the face below the level of the bridge of the nose were hidden by a bandana he used as a mask.[11]PC Leather gave evidence that he recognised the appellant Lariba. Asked how he was able to do that he replied “hairline, skin tone, build and clothing”. Asked how confident he was, PC Leather said that he had no doubt that it was Lariba. Lariba went to the Oasis Academy School. PC Leather had spoken to him many times. He had seen him in the area when he was on his bicycle including on occasions when he had worn a bandana to cover the lower part of his face and was wearing his hoody and puffa jacket.[12]Having identified Lariba in the recording, PC Leather reported on the telephone to WPC Gilbert and asked her to inform his senior officer Police Sergeant (“PS”) Goodley. PS Goodley passed on this information to Detective Chief Inspector (“DCI”) Clayman, who had been in charge of the murder investigation. DCI Clayman referred PS Goodley to Detective Inspector (“DI”) Tree who was now in charge of the case.[13]Meanwhile PS Goodley himself looked at the internet footage. He also knew members of the GMG gang. He had been in the Safer Neighbourhood Team since June 2010 and worked on the street daily. PS Goodley gave evidence that there were two gangs in Enfield affiliated with one another. GMG was based in Turkey Street, London EN3. They wore a brown bandana. There were about 30 of them, of whom 10 to 15 were hardcore members. When he viewed the YouTube footage on a computer in the police station PS Goodley also recognised Lariba. When he gave evidence PS Goodley described the racial mix in GMG. Most were young and black. Two were Turkish, two were white British. Of the light skinned young men in the gang Lariba was one of the darker ones. Lariba was, in PS Goodley’s estimation, in the middle rank of the GMG, one of the 15 hardcore members. PS Goodley said that although he knew of PC Leather’s recognition of the appellant his own was unaffected by that knowledge.[14]PC Julian Pell-Coggin was the Safer Schools officer assigned to the Oasis Academy in Enfield. He gave evidence that GMG had started in the school before he was assigned. On his arrival the officer instituted voluntary weekly two hour group sessions in an attempt to counteract the growing influence of the gangs. PC Pell-Coggin became aware of the YouTube recording in early May. It was drawn to his attention by a pupil. On 3 May the officer located the footage on the internet and viewed it. He saw Lariba who had been one of his pupils. In evidence he told the jury that he had arrived at the school in September 2009. Lariba attended some of his weekly sessions. He would also see him in the corridors several times a day, three days a week. Lariba left the Academy in May 2011 but he would continue to hang around with the sixth formers. This was a concern for the officer who was trying to prevent recruitment. He saw Lariba several times on his bike and wearing a bandana to cover the lower part of his face. PC Pell-Coggin said that when he first viewed the footage his suspicion was raised by the moving image to which we have referred. When he freeze-framed the image he had no doubt that he was looking at Lariba. He recognised Lariba’s stance and gait on the bicycle, his distinctive hairline, the depth of his forehead between the hairline and eyebrows, the clothing style and the characteristic shoulder bag. PC Pell-Coggin had not mentioned the shoulder bag in any of his statements.[15]On the same day at 12.15 pm PC Pell-Coggin phoned in an incident report for entry on the Holmes computer in the incident room. The message recorded was as follows:
“I have just seen the footage released from the murder of Negus McLean. I am certain that one of the boys with a bandana but no head covering is Billal Lariba. I have knowledge of Lariba as I am the Safer Schools officer for Oasis Hadley College, Lariba used to be a student there. Although his face was partially covered I recognised him from his general demeanour, his hair, his hairstyle, his hairline and a line he has across his forehead, also his eyebrows. One of the other boys looks like it could be Hussain but I am note sure about that one.”
[16]DI Julian Tree, the officer in charge of the investigation, on receiving PS Goodley’s message, decided that a formal viewing procedure should take place. DI Tree instructed PS Goodley not to repeat to other officers that he had identified the appellant. The procedure adopted was that PC Leather and PS Goodley were asked to attend the police station separately on 3 May to view the recording again.[17]At the conclusion of the viewing each officer was asked to make a witness statement. PC Leather identified the features from which he made his recognition as the suspect’s “cropped hair, skin tone and build”. He said that he had seen the appellant “numerous times” and when he had arrested him. He had seen him cycling, wearing similar clothes and wearing a scarf across his face. He said that he had seen the footage before and described the circumstances in which he had reported in to WPC Gilbert.[18]PS Goodley also said he had viewed the material before and reported his recognition to the investigation team. He said he recognised the suspect from his “distinctive lower hairline and light skin tone”. He knew the appellant to be a member of the GMG gang. PS Goodley had carried out a number of stop checks of the appellant over the years. They had spoken on at least 50 occasions.[19]On the same day two further officers were asked to view the material at the police station, PC Maddix and PC Oliver. They too were community police officers based in Enfield. Their position was different in that neither of them had seen the recording informally on YouTube or elsewhere. They both identified Lariba and also made witness statements. PC Maddix had been a member of the neighbourhood support team since October 2008. He had known the appellant for three years and had spoken to him for 5-10 minutes on a few occasions. He recognised Lariba when focussing on the images that we have described. He relied on Lariba’s skin tone, hairline and haircut. PC Maddix said he could not be 100% sure although he was “pretty confident”. In the witness statement he made on 3 May 2012 PC Maddix explained how he knew the appellant and that he recognised him from his “skin tone, hair type and his build”.[20]PC Oliver said that the appellant lived in his ward. He had seen him at least three times a week over a period of three years and had spoken to him for periods of 2-5 minutes at least once a week for the same period. PC Oliver said in evidence that he relied on Lariba’s posture, hairstyle and hair colour. He said he was 100% confident. He also made a witness statement on 3 May. In his witness statement he said he could recognise the suspect as the appellant who lived on his ward. He did not expressly point to the features to be seen in the recording that enabled him to make the identification but he did specify the features of the suspect that he could see.[21]PC Pell-Coggin made his formal identification at a separate viewing on 22 May at the conclusion of which he also made a witness statement. He explained how he knew the appellant from his work at the Academy. He said he had seen him regularly riding a bicycle, occasionally when the appellant was wearing a bandana across the lower half of his face. Even when the appellant was wearing a bandana, he said, he could recognise him.[22]Accordingly, three police officers made an informal identification of the appellant before attending a formal viewing procedure. Two further police officers identified the appellant at a formal procedure only. All five witnesses made witness statements immediately after the formal procedure. PC Pell-Coggin alone made a detailed report to the incident room at the time of the informal viewing. Eight further police officers were invited by the investigating team to attend a formal procedure on either 3 or 22 May. One of them, PC Pascall, had served with PC Pell-Coggin at the Academy for some six months. None of these eight officers was able to make an identification of Lariba. Each of them made a short statement to that effect following the viewing. Recognition of suspect in photographic images[23]The appellant does not contend that evidence of recognition of a suspect on CCTV film recorded at or near the scene of a crime is inadmissible. In Attorney General’s Reference No. 2 of 2002 [2002] EWCA Crim. 2373, [2003] 1 Cr App R 321 (Rose LJ (Vice President), Pitchers and Treacy JJ) the court examined the question whether and to what extent photographic images of the suspect could be used for identification purposes. Having made an extensive examination of the authorities, the court concluded (at paragraph 19) that there were at least four circumstances in which, subject to the judicial discretion to exclude on the ground of fairness and appropriate directions to the jury in summing up, a jury could be invited to conclude that the defendant committed the offence on the basis of a photographic image from the scene of a crime, namely:(1) When the image is sufficiently clear that the jury can compare it with the defendant in court;(2) When a witness knows the defendant sufficiently well to recognise him as the person in the photographic image he can give identification evidence;(3) When a witness has acquired through hours of examination of photographic images familiarity with the material he may be permitted to make a comparison with a known and reasonably contemporary photograph of the defendant provided the evidence can be tested by the jury’s own examination of the images;(4) A facial mapping expert may make a comparison between scene of crime images and a photograph of the defendant subject to the usual safeguards concerning the evidence of an expert and the availability of the images for testing of that evidence by the jury.[24]In Smith (Dean) & Others [2008] EWCA Crim. 1342 the court (Moses LJ, Openshaw J and His Honour Judge Roberts QC) considered the application of Code D issued under the Police and Criminal Evidence Act 1984 (“PACE”) to the viewing of a scene of crime CCTV recording by police officers in the hope of achieving the recognition of a suspect. The then current version of the Code contained no specific reference to the conditions under which such images should be shown to persons who were not witnesses to the crime, although Code D 3.28 provided that when such material was shown to potential witnesses that process should be conducted individually to avoid the possibility of collusion, following the principles that applied to video identification. The court concluded that whether or not the process in which the witness was engaged was strictly covered by the Code the safeguards that the Code was designed to bring to the exercise were just as important. Moses LJ, delivering the judgment of the court, said at paragraphs 67-69:
“67. A police officer asked to view a CCTV is not in the same shoes as a witness asked to identify someone he has seen committing a crime. But, as the prosecution accepted, safeguards which the code is designed to put in place are equally important in cases where a police officer is asked to see whether he can recognise anyone in a CCTV recording. The mischief is that a police officer may merely assert that he recognised someone without any objective means of testing the accuracy of such an assertion. Whether or not Code D applies, there must be in place some record which assists in gauging the reliability of the assertion. In cases such as these, there is no possibility of comparing the initial observation of a witness, as recorded in a contemporaneous note of description or absence of description, who purports to make a subsequent identification. The police officer can hardly be asked to record his recollection of a description of a particular suspect before he has picked that suspect out from the CCTV recording. 68. Absent any such check as would be available had a witness described the commission of an offence and recollected his description of the offender, it is important that the police officer’s initial reaction to the recording are set out and available for scrutiny. Thus if the police officer fails to recognise anyone on first viewing but does so subsequently hose circumstance should be noted. The words that [the] officer uses by way of recognition may also be of importance. If an officer fails to pick anybody else out that also should be recorded, as should any words of doubt. Furthermore, it is necessary that if recognition takes place a record is made of what it is about the image that is said to have triggered the recognition. 69. Absent any such record, it will not be possible to assess the reliability of the recognition. We are told that a protocol is being prepared for such cases. With the increasing use of CCTV recognition it is vital that a protocol is prepared which provides the safeguard of measuring the recognition against an objective standard of assessment. Only by such means can there be any assurance that the officer is not merely asserting that which he wishes, however subconsciously, to achieve, namely the recognition of the guilty participant.”
Were it not for other evidence supporting the recognition evidence of the police officer the court would have found the verdict unsafe.[25]In Moss [2011] EWCA Crim. 252 (Moore-Bick LJ, Cox J and Sir Christopher Holland), an off duty police officer happened to pass a computer screen on which a civilian colleague was viewing CCTV images of a burglary in progress. The officer recognised the suspect and named him. A week later when he returned to duty the officer made a note in which he recorded the fact of his identification, his certainty and his report of it to a more senior officer. Six months later the officer recorded in a witness statement for the first time his source of knowledge of the suspect and facial features on which he had relied to make the identification. Moore-Bick LJ, giving the judgment of the court, endorsed the opinion of the court in Smith (Dean) but pointed out the difference between a formal viewing and a casual sighting. In the latter case the court would not be looking so much for adherence to procedure but to the questions whether(1) the evidence was so unreliable that it should be excluded and, if not,(2) the jury was provided with a means of testing the reliability of the evidence (paragraphs 20-22).[26]Moore-Bick LJ referred to two further appeals that considered Smith (Dean), McGrath (Henry) [2009] EWCA Crim. 1758 and Watts (Darren) [2010] EWCA Crim. 1743. In both cases the police had failed to comply with the procedural safeguards to which reference was made in Smith (Dean) but the court nonetheless regarded the convictions as safe. The court held in Moss that the judge was right to rule the evidence of the informal identification admissible. Amendments to Code D[27]With effect from 6 March 2011 Code D was amended so as to introduce the further safeguards that the court in Smith (Dean) had been informed were under discussion. Paragraph 1.2A stated:
“1.2(A) In this Code, separate provisions in part B of section 3 below apply when any person, including a police officer, is asked if they recognise anyone they see in an image as being someone they know and to test their claim that they recognise that person as someone who is known to them. Except where stated, these separate provisions are not subject to the eye-witnesses identification procedures described in paragraph 1.2.”
[28]Part B introduced paragraphs 3.34-3.36 to Code D as follows:
“(B) Evidence of recognition by showing films, photographs and other images 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 film, photographs and other images shall be shown on an individual basis to avoid any possibility of collusion and provide safeguards against mistaken recognition … , 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 a 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 the 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 the 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 expression 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.” • 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.”
[29]At the date when DI Tree received PS Goodley’s message the new Part B provisions had not been posted on the police network database for the attention of officers. Accordingly, DI Tree was unaware of them and his formal viewing procedure did not include contemporaneous note taking in accordance with paragraph 3.36. Lariba’s grounds of appeal against conviction[30]There was no suggestion at trial of improper conduct by the police officers. Mr Spens QC submitted to the judge that the evidence of recognition was unreliable, first because the CCTV material was inadequate and, secondly, because no contemporaneous record was available of the witnesses’ reaction to the CCTV material that they viewed. Mr Spens realistically concedes that when out of curiosity police officers view the material made available nationally for the purpose of promoting a public response, it is not possible to impose formal viewing procedures such as those envisaged by Code D Part B. However, Mr Spens submits that the underlying test for admissibility remains, as the court emphasised in Smith (Dean) and Moss, whether the evidence is sufficiently reliable to be admitted. In the absence of material available to the jury to test the reliability of the evidence the judge should have excluded it under section 78 PACE.[31]Mr Spens sought, and we grant, leave to add a further limb to ground 1 namely:
“The informal CCTV purported recognition evidence of three police officers, Leather, Goodley and Pell-Coggin, and their subsequent formal purported recognitions should have been ruled inadmissible, the former because no note of the circumstance were made at the time, the latter because of breaches of Code D 3.36(k).”
Mr Spens frankly excluded PC Pell-Coggin from the criticism that no note was made at the time of the informal recognition procedure but he pointed out that the note made does not amount to full compliance with Code D 3 Part B. Although the witnesses to the formal viewing procedure did make witness statements immediately after the viewing, compliance with the spirit of Code D 3 Part B was partial only.[32]The appellant’s ground 2 concerns the reasoning that led the judge to admit the recognition evidence of PC Maddix and PC Oliver. On 15 April 2013 he ruled that since Code D did not apply to the formal recognition made by PC Leather, PS Goodley and PC Pell-Coggin, their evidence would be admitted. He had not yet reached a conclusion in the cases of PC Maddix and PC Oliver and postponed his ruling in that respect. On 23 April Mr Spens renewed his application. The judge ruled that Code D 3.36(k) applied to the evidence of PC Maddix and PC Oliver. There had been a material although honest failure to record their contemporaneous reaction to the CCTV evidence. Unlike the first three officers they had not already made an identification in controlled circumstances and for that reason their position was distinguishable. The judge resolved that he “may be sticking too closely to the rules” but he would rule it unfair to adduce their evidence. He added as a rider that if Mr Spens QC chose to rely on non-identification by other officers who were in a similar position, in that they too had come to the CCTV images for the first time in controlled circumstances, he would review his ruling.[33]Mr Spens QC gave some thought to the implications of this ruling and the following day, 24 April, he invited the judge to reconsider the logic of it. If PC Maddix’s and PC Oliver’s evidence was to be excluded for lack of a contemporaneous record, then the same underlying reasoning applied to the reliability of the evidence of the other officers; in their cases there was no contemporaneous record of either process of recognition by which its reliability could be demonstrated or tested. The judge declined to change his ruling and Mr Spens made a forensic judgment that he should place before the jury, as a counter-balance to the prosecution case, the inability of the eight further officers to identify the appellant from the CCTV film. As a result the judge admitted the evidence of PC Maddix and PC Oliver.[34]Mr Spens submits that the reasoning which had led the judge to make the rulings he did was flawed. If he was correct to rule that the evidence of PC Maddix and PC Oliver should be excluded, it should have followed that the evidence of PC Leather, PS Goodley and PC Pell-Coggin should also have been excluded. However, Mr Spens frankly conceded that if this court was to conclude that the evidence of PC Maddix and PC Oliver was safely admitted any flawed reasoning that led the judge to admit the evidence would not avail the appellant’s appeal. Discussion[35]The recognition evidence was, in our view, clearly relevant and, subject to its quality, admissible. The issue for our decision is whether by reason of any weakness in the evidence or the absence of adequate safeguards it should have been excluded either as failing to reach a minimum standard of reliability or because fairness demanded that it be excluded under section 78 PACE.[36]We turn first to the quality of the CCTV images. Mr Spens QC was right to observe that the judge was required to assess whether the images themselves were of sufficient quality to form the source material for recognition by witnesses who were very familiar with the appellant’s appearance. At the invitation of the parties each member of the court has viewed the recordings and formed a view about its quality. As the fourth rider approached the camera his face was turned towards the wall on which the camera was situated. Just as the rider is about to pass underneath a wall mounted light a clear view is available of his face, head and torso. In our opinion, there is one particular frame at which the CCTV recording can be paused to reveal a frontal image of the suspect from above in sufficient clarity to form the basis for facial recognition. Furthermore, the still and moving images are sufficient to form the basis for recognition of the suspect’s style of clothing and the manner in which he deports himself on the bicycle. These observations apply only to the quality of the images and not to the question whether the information available in the recording is sufficient to support an identification, which is the question to which we now turn.[37]Mr Spens QC correctly points out that the facial features of the suspect available to the observer are limited. We have already described them. Not visible are the suspect’s nose, mouth and chin. We are informed that Mr Lariba has a broken nose with a deviation to one side and, at the time, he wore a pencil moustache. Those features on Mr Lariba’s face are not available for comparison in the suspect’s image. The lack of a full view of the suspect’s face is clearly a weakness in the recognition evidence.[38]The judge took the view that since the witnesses were making a comparison with a limited number of known suspects, namely members of the GMG gang, the reliability of their recognition was enhanced. With respect to the judge, we consider there is a danger here of inadmissible reasoning. Only if the prosecution had excluded all other possible suspects, whether members of the GMG gang or not, could the witnesses be proved to have been making their recognition from a small pool of people. While the prosecution invited the jury to infer that the seven attackers were indeed members of the thirty strong GMG gang, it does not seem to us that other possibilities had been excluded at the time the application was made to exclude the evidence. We do not think this approach was properly open to the judge. However, we conclude that while the scope for reliable recognition was reduced by the limited facial view of the suspect, it was not so far reduced as to be inadequate for consideration by a jury properly directed. Furthermore, as Mr Spens QC also realistically conceded, the environmental circumstances of the recognition are relevant if not in precisely the way the judge indicated. We do consider that the strength of the connection between the witnesses and the appellant is relevant to the issue whether a partial facial view of the suspect would be sufficient to permit recognition. These were police officers who saw and spoke to the appellant on many occasions. They saw him both inside and outside the Academy, before and after he left school. They saw him in his street environment, wearing his preferred style of clothing and riding his bicycle. They saw him wearing his bandana. They saw him close up to talk to and they saw him at a distance. The more familiar in face, head, build and manner the person is to the witness the more likely it is that the witness can make a reliable identification of that person from a CCTV recording providing a similarly incomplete view of his face.[39]We recognise that such an identification is not rendered reliable simply because the defendant is well known to the witness. The risk is that the witness will jump to a conclusion by virtue of his belief that he is looking at a member of the GMG gang. One of the purposes of the Turnbull direction is to caution the jury against such an error. Honest and convincing mistakes can be made by witnesses who entertain no doubt that they are right when identifying persons who are known to them. However, as the basis of an identification for assessment by the jury, it is our view that the judge was right to conclude that the recording was of sufficient quality both as an image and as a view of the suspect. The danger that witnesses had jumped to unwarranted conclusions receded as the trial progressed because, by the close of the evidence, no-one disputed that the jury were and the officers had indeed been looking at members of the GMG gang who set out to attack a member of the opposition.[40]We emphasise that in the present case the jury were not being invited to form their own judgment as to identity by comparison between the images of the suspect and the defendant in court. The images were of insufficient quality to permit such a comparison and a good deal of time had elapsed since the CCTV images had been captured. The danger in such a case is that the jury will simply take on trust a convincing assurance from the witnesses when they are unable to make the judgment themselves; hence, the importance of directions to the jury as to the caution with which they must approach their task. Once the judge concluded that the images were of sufficient quality to permit the evidence to be given, it remained the task of the jury to assess whether they could be sure that the recognition based upon it was reliable. The advantage that a jury has in a case of recognition from a scene of crime image is that they can see exactly what the witness saw and the image is permanent. That is not the position when there is no photographic record and the jury is considering only the quality of identification evidence given by an eye-witness to an ephemeral scene. In our judgment, these images were of sufficient quality to enable the jury to assess whether a recognition made from them was one on which they could rely even though they were not of sufficient quality to permit an identification of their own.[41]We turn to the application of Code D. The purpose of the eye-witness identification procedures in Code D 3A is to test the witness’s ability to identify the suspect as the person seen on a previous occasion and to provide safeguards against mistaken identification (see D 1.2). The safeguards include(i) making an immediate record of the witness’s description of the suspect(ii) carrying out an identification in controlled conditions that include the recording of the witness’s reaction at the identification procedure. Where, however, the suspect is not known, Code D 3.28 permits viewing of images with a view to recognition by a witness or police officer and tracing a suspect. The procedure at D 3 Part B apples to such a viewing.[42]Code D 3 Part B applies to any occasion when, for the purpose of obtaining evidence of recognition, any person including a police officer views a photographic or other recording (D 3. 34). The context of Code D 3.35 and 3.36 demonstrates that the procedure can in practice only apply to arrangements made by the police for specific viewing. They cannot practicably apply to invitations to the public in general to view scenes of crime or other images of suspects via television or internet outlets with a request that recognition is reported to the investigation team. The safeguards to be implemented in the case of a “formal” viewing include ensuring that individuals view the material separately, that a record is made; and that the record includes the reasons given by the witness for the recognition made, the words used by the witness in making the recognition, including any expression of doubt, and the features of the image or the individual that triggered the recognition.[43]In Forbes [2000] UKHL 66, [2001] 1 AC 473 the appellate committee of the House of Lords considered the 1995 version of Code D 3.12 that set out the requirement to hold an eye-witness identification procedure. The Appellate Committee held that when there had been a breach of Code D, comprised in a failure to hold a formal procedure, but the trial judge has admitted the evidence of an earlier informal identification by the witness, the nature of the breach and the purpose of the safeguard should be explained to the jury in order that they can make an informed assessment of the reliability of the identification. Where the witness has made an earlier informal identification and a later formal identification at a controlled procedure the jury should be warned of the possible risk that the witness has simply recognised formally the same person identified on the earlier occasion.[44]The decision in Forbes is instructive for at least three reasons. First, a recognition may take place in informal circumstances over which the investigator has little or no control. If so, there remains under Code D 3.12 an obligation to hold a formal procedure unless it would be impracticable or serve no useful purpose (for example, if the witness already knows the suspect well and saw him commit the crime). Second, where the formal procedure is held it serves a useful purpose because it provides the witness with the opportunity in controlled conditions to entertain second thoughts. Third, when an identification is made on both occasions, the jury should receive assistance as to the value of the evidence.[45]In our view, this reasoning applies with equal force to the recognition of a suspect from images in a CCTV recording. Informal recognition had been made by three of these police officers. With the exception of PC Pell-Coggin no contemporaneous record was made. DI Tree was in our view right to require that a formal viewing procedure should take place. Unfortunately, the officer did not ensure that a contemporaneous record was made at the formal viewing procedure, only that a post-viewing witness statement should be completed by the witness. Had such a record been made the jury would have been provided with some, although limited, further assistance as to the reliability of the recognition. On the other hand DI Tree did require all five officers to make witness statements immediately after the viewing from which defence counsel was able to formulate cross-examination upon issues of reliability.[46]The issue for the judge was whether the breaches of Code D 3.36 rendered the evidence plainly unreliable or unfairly prejudicial to the appellant. We agree with the learned judge that it did not for the following reasons: It could not be in doubt that the police officers were, as they claimed, familiar with the appearance of the appellant as a result of their regular contact with him in the course of their duties over significant periods of time. We did not understand this to be disputed on the appellant’s behalf. What was not agreed was the ability of the officers to recognise the appellant from the images available. Thus, submitted Mr Spens QC, the absence of contemporaneous recording of the reason for recognition, the words used, any expressions of doubt and the features of the appellant or the suspect on which the witness relied, was a material disadvantage to the appellant and to the jury in testing the reliability of the officers’ evidence.[47]We accept Mr Spens’ submission that the appellant and the jury were put at a disadvantage for the reasons identified. However, we do not consider that the breaches of Code D required the evidence to be excluded. First, in each of the cases of PC Leather, PC Goodley and PC Pell-Coggin, the formal procedure took place not long after the informal viewing and was followed immediately by the making of witness statements. While the witness statements were not a complete record in accordance with the Code D 3.36 requirements they did record the factual basis for the recognitions made. In the case of PC Pell-Coggin a virtually contemporaneous record was made of the circumstances of his informal viewing. Secondly, the witnesses and the images were available to the jury. The witnesses could be and were expertly cross-examined as to the matters relevant to the reliability of their evidence. Thirdly, the appellant was able to demonstrate that not all those police officers who knew him had recognised him from the same images. The defence was provided with statements from all those officers who attended a formal viewing and were unable to recognise anyone in the recording. Fourthly, the judge was able to explain to the jury the respects in which the appellant had been disadvantaged by the breach of the Code and to call for extreme caution. We have read the relevant passages in the judge’s summing up to the jury and are unsurprised that no criticism is made of them on behalf of the appellant. Fifthly, there was some supporting evidence for the recognition. An eye-witness, Mr Kahloui made an identification of the appellant Lariba at a formal identification procedure as being one of the chasing group close to the scene of the killing, having first given a description of him to the police. Mr Kalui said at the procedure that although he identified Lariba he could not be sure because Lariba was wearing a bandana that obscured his face from the nose down. This was evidence that provided some, although incomplete, support for the evidence of recognition. There was other evidence that on one view could implicate the appellant but it was so controversial that we have accepted Mr Spens QC’s invitation to leave it out of account.[48]With respect to the judge we accept that the reasoning that led to the admission of the evidence of PC Maddix and PC Oliver cannot be sustained. In terms of reliability there was nothing in general to distinguish their evidence from the evidence of the other three officers. In no case was a contemporaneous record made of the formal procedure. It does not seem to this court that the fact three of the officers had made an earlier informal recognition was capable of rendering their evidence any more reliable or the absence of Code D 3.36 safeguards any less disadvantageous to the appellant. In our view, all the recognition evidence was admissible or none of it was. Further, we conclude that the inability of other officers, similarly placed, to recognise the appellant was a fact relevant to the jury’s assessment of the reliability. Had the judge rightly concluded that it would be unsafe or unfair to permit the evidence of PC Maddix and PC Oliver to be adduced, we do not follow how the introduction of evidence favourable to the appellant from other officers can have led to the reversal of that judgment.[49]While we accept Mr Spens QC’s submissions as to the breaches of Code D 3 Part B we have concluded that the evidence was, nonetheless, properly admitted for reasons that differ from those explained by the judge in his rulings. We have no reason to doubt the safety of the verdict in Lariba’s case. We note that he chose not to give evidence in his own defence to contradict the evidence of recognition. The appeal against conviction is dismissed. Edwards Dos Santos’s grounds of appeal against conviction[50]On 7 June 2013 the applicant Edwards Dos Santos’ trial counsel advised that there were no grounds upon which to appeal against conviction. On 15 October 2013, four months out of time, a notice of appeal was lodged and fresh counsel, Ms Smart, submitted new grounds perfected on 24 February 2014. Edwards Dos Santos contended that he had not received a fair trial because leading counsel instructed, Jerome Lynch QC, had been absent for much of the trial, estimated at 60% or more.[51]The court has received a full response from Mr Lynch QC and junior counsel, Mr Joseph Barry. On 18 March 2013 Mr Lynch QC commenced a trial at the Central Criminal Court in which the jury was expected to retire on 7 April. It shortly became apparent that there would be a significant overrun due to the illness of a juror and other unforeseen events. On 23 March Mr Lynch wrote an e-mail to his instructing solicitors offering to return his instructions, “juggle between cases”, or apply to postpone the trial. His solicitors informed him that they wished him to remain instructed and to do his best to synchronise his appearances between the two cases.[52]In this, Mr Lynch says that he was successful, being present personally to cross-examine on any issue of importance affecting the case of the applicant, to adduce the applicant’s evidence and to address the jury in his closing speech. Both Mr Lynch and Mr Barry reject the assertion that the applicant was disadvantaged. Neither of them agrees that Mr Lynch was absent for most of the trial. We have read a transcript of counsel’s final speech which, in our view, plainly demonstrates that counsel was in command of the issues and evidence affecting the applicant’s case. However, the applicant’s bare assertion that his case was adversely affected by Mr Lynch QC’s dual responsibilities during the first two weeks of trial is insufficient, in our view, to give rise to any arguable ground of appeal. Ms Smart put forward no evidence and no argument that could demonstrate either that Mr Lynch QC was absent during a critical period of the trial or that Mr Barry was unable properly to deal with any matters arising in Mr Lynch’s absence. In particular no attempt had been made to consult the court log. Ms Smart’s argument amounted, on analysis, to nothing more than a suggestion that leading counsel should not permit himself to become double-booked.[53]We accept that save in exceptional circumstances and only with the approval of the client and the court should leading counsel allow themselves to be placed in the position in which Mr Lynch QC found himself. However, he gave due notice of his predicament and gave ample opportunity for his instructions to be withdrawn. He ensured that the trial judge was aware of the position and steps were taken to accommodate him. In the result counsel was not released from his obligation to the applicant and we do not consider it arguable that the applicant’s case was adversely affected or that the verdict of the jury was unsafe.[54]We refuse Edwards Dos Santos’s applications for an extension of time and leave to appeal against conviction. Lariba’s and Hamilton’s grounds of appeal against sentence[55]It is contended on behalf of the applicant Lariba that the minimum term set of 16½ years was manifestly excessive because the judge failed to give sufficient weight to the assertion that the applicant had no intention to kill.[56]It is contended on behalf of Hamilton in his written grounds that the judge failed to make due allowance for the applicant’s age and personal circumstances and the absence of an intention to kill.[57]HH Judge Bevan QC noted that the starting point for the minimum term in respect of defendants under the age of 18 years was 12 years. He expressly took account of the applicants’ ages at the date of the offence. The judge identified a number of aggravating factors chief among which were that the killing was the culmination of gang warfare in which the applicants had set out armed to take their revenge. There had been disposal and destruction of evidence. The applicants were of bad character. Their victim was aged only 15 years. He was killed within sight of his 13 year old brother.[58]In our view a starting point of 16 years or so was clearly appropriate. For an adult the starting point for the minimum term would have been 25 years. As to individual intent the judge observed there was almost no room for differentiation on the facts of the present case. We agree. The applicants pursued their victim as an armed pack. When they cornered him their attack was merciless.[59]Hamilton had on his own admission, two days before the killing, stabbed Dumlupinor with intent to do him really serious harm. The judge, correctly in our view, reflected the additional culpability revealed by all Hamilton’s offending by adjusting upwards the minimum term in his case by two and a half years and imposing a concurrent sentence of 5 years in respect of count 2. We do not accept the argument that the judge did not take account of Hamilton’s age and personal circumstances. He expressly did so.[60]We agree with the opinion of the single judge. The renewed applications for leave to appeal against sentence are refused.

Cited in 2 later judgments