Howe, R v [2017] EWCA Crim 2400

No: 201700161 B2[2017] EWCA Crim 2400
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday 18 July 2017
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE SIMON
SIR WYN WILLIAMS
THE RECORDER OF PRESTON
HIS HONOUR JUDGE BROWN
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
DEREK HOWE
Computer-Aided Transcript of the Stenograph Notes ofWordWave International Limited trading as DTI165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr R Herrmann appeared for AppellantMr N Rooke appeared for Crown
J U D G M E N T
[1]On 14th November 2016 in the Crown Court at Newcastle upon Tyne, before Mr Recorder Kramer and a jury, the appellant was convicted of three counts of burglary by a unanimous verdict of the jury. On 16th January 2017 he was sentenced to a term of five years' imprisonment, concurrent on each count. He appeals against those convictions by leave of the single judge.[2]The case concerned three distraction burglaries committed in Gateshead on Tuesday 21st June 2016. The three offences were all committed within a short timeframe. The prosecution case was that the appellant was the person who committed the burglaries. They relied on the similar circumstances of each burglary, identification evidence, CCTV footage and significantly, in the context of the present appeal, on the evidence of the appellant's bad character. The prosecution argued that the strength of the case against the appellant derived from its cumulative effect. They invited the jury to conclude that the three burglaries were committed by the same person, that the combination of events was too unlikely to be coincidence and that the only reasonable explanation was that the appellant was the burglar in each case.[3]The defence case was that he was not the burglar. He accepted that he was the person seen in the area on the CCTV, but said that this was a coincidence. His defence pointed to the lack of any direct evidence that he was the person who committed these offences, he was a very tall man, six foot four inches, and the identification of him as the intruder was unsure.[4]The prosecution evidence was to the following effect.[5]Count 1 concerned Ethel Egle. She was a woman aged 93 who lived alone at Norwood Crescent, Rowlands Gill, Gateshead, in a bungalow which was part of an assisted living scheme for the elderly. Her evidence was that at 1.30 pm on 21st June she was sitting in her kitchen when she saw a man at the door. She thought it was a friend and opened the door. A man walked past her into the kitchen. He said he needed a key for the address next door and referred to the lady who lived there as "Betty", which was in fact her name. Ethel Egle told him that Betty was in hospital and was not due home yet. The man then asked for a cup of tea and said he needed the toilet. He walked into the bedroom. Ethel Egle followed him and asked him what he was doing. He looked out of the window at a neighbouring bungalow and said he knew Edna. Ethel Egle corrected him, telling him that her neighbour was called Eleanor. He then said he was going to see the warden and promptly left.[6]She reported what had happened to the warden of the accommodation and gave a description of the man to the police. Nothing was stolen and she did not take part in an identification procedure.[7]Count 2 concerned Isabella Wilkinson. She was aged 91 and lived with her husband who had dementia at Garefield Gardens, Rowlands Gill, approximately 100 yards from Ethel Egle's home. Her evidence was agreed and read to the jury. Around 1.30 pm she was sitting in her living room when she saw a man walking out of her bedroom. Her daughter had recently left, and she had asked her to leave the front door open. Mrs Wilkinson called out to ask the man what he was doing. He walked down the hallway towards her saying that he was looking for someone called Jacqueline Fishbourne. She told him she did not know such a person. He sat down and claimed to be looking for a key for Jacqueline's house. Although he was polite, Mrs Wilkinson was concerned. She offered to call the warden. He then left. Nothing was stolen, but she reported what had happened to the warden and gave a description of the man to the police at this time.[8]She gave a further description in a statement made on 1st July in which she said she clearly recalled the intruder as wearing a dark coloured zip-up, waist length bomber jacket style top with a light logo on the left chest area. She also recalled him carrying a newspaper. A video identification procedure was conducted in her home on 5th July and she picked out the images of number 6 and 9, although she was not positive. She said she was 50 per cent sure it was 6. The appellant was number 6 out of the nine images. This partial video identification evidence gives rise to one of the grounds of appeal.[9]Count 3 was a charge in relation to an incident about an hour and a quarter later. Derek Charlton, aged 92, a pensioner, lived with his wife at Roxburgh Close, Winlaton, about two miles from Rowlands Gill. At around 2.45 pm he woke from a nap to discover a man standing in his living room. The man asked:
"Where's Fishbourne?" and "
Have you got a yellow pages?" He then said he was going next door and left via the back door. Afterwards it was discovered that Mrs Charlton's purse containing £70 and bank cards had been taken from the kitchen table. A PIN number had been left with the cards. £500 was subsequently withdrawn from an ATM on West Road, Newcastle approximately one hour after the man left the house. This was about 1500 metres from addresses with which the appellant was connected, and the timings were at least consistent with the appellant being involved, although we are told by Mr Herrmann that the matter was investigated and there was certainly other possibilities where, if he had the card, he could have used it to take the cash from a machine. The offence was reported to the police by Mr Charlton and a description of the man was given. He took part in a video identification procedure which involved the appellant, but Mr Charlton was not able to make an identification.[10]The prosecution relied on CCTV evidence. Between 1.41 and 1.50 pm a man was seen walking away from Rowlands Gill towards Winlaton. He was carrying a newspaper. At 2.40 pm the man was seen boarding a bus in Winlaton about 400 metres from the Charlton's address at Roxburgh Close. At 2.56 pm the man changed buses, boarding a bus heading towards Central Newcastle centre.[11]The appellant was recognised from these CCTV images and he was arrested on 30th June. Mr Herrmann has characterised his explanation in interview for being in the general area of the burglaries at the time the offences were committed as being "at best broad." We are told that his explanation given to the jury was more elaborate and accounted for why he was there and why he had initially not given a reason why he was there.[12]The images showed the appellant wearing a dark waist-length coat with a logo on the top left hand side. It was admitted by the defence that the CCTV images showed the appellant. However prior to that, the appellant had denied that it was him. We take this from the summing-up at page 44:
"On page 13 [of the interview} he is shown some still photographs of some CCTV and originally he says, 'No, it's not me', but later on said, 'It looks nothing like me', [he] goes on, 'looks like a different man if you've got me on the bus I can't be specific where I was'..."
[13]In any event, as we have noted, he later admitted that it was indeed him on the bus.[14]In addition to this evidence the prosecution relied on the appellant's bad character, which was admitted by the Recorder following a ruling. This ruling gives rise to another ground of appeal.[15]The appellant was called as a witness in his own defence. He accepted that he was the man seen on the CCTV recordings on the day in question, but denied entering the premises which were burgled. His presence in the area was coincidental. The CCTV showed that at the relevant time he was wearing a black jacket with a white logo, dark blue jeans and light grey trainers. So far as his previous convictions were concerned, he said he was ashamed of his past. He used to have an addiction to crack cocaine but since his release from prison he had turned his life around. These were matters of which the jury were reminded in the course of the summing-up.[16]The defence made a number of points about the prosecution identification evidence in relation to each count. In evidence, Ethel Egle (count 1) described the burglar as medium height, five foot eight or nine and wearing a black suit. Her witness statement said he was wearing a dark house-type coat but she could not remember anything about his trousers. As we have noted she did not make an identification.[17]In her original statement, Isabella Wilkinson (count 2) had described the burglar as approximately six feet tall and aged 30 to 35. It was pointed out that the description she had given in her witness statement ten days later on 1st July was different to that as recorded by the police officer on the day of the burglary. In her earlier statement she had said that the intruder was wearing a light coloured top. In the later statement she said he was wearing a short dark jacket with a white logo on the top left.[18]Derek Charlton (count 3) described the burglar in his statement as over six feet tall, 45 to 50, dark close cut hair wearing a dark long sleeved top and grey trousers. In evidence he said he was wearing a dark coat. When cross-examined he said he did not get a good look at him and had been half asleep. He too had not been able to make an identification.[19]The Recorder made two material rulings which give rise to the grounds of appeal. The first ruling was in relation to Isabella Wilkinson's identification evidence in relation to count 2. The defence submitted that the video identification procedure was flawed as her attention had been improperly directed to the image of the appellant in breach of Code D of the Police and Criminal Evidence Act 1984. This point is not pursued on this appeal.[20]Secondly, the defence submitted that Isabella Wilkinson's identification was an equivocal or qualified identification of the appellant and should be excluded under section 78 of the Police and Criminal Evidence Act. The Recorder rejected this submission. Having considered the DVD of the identification procedure he did not accept that the officer had directed the witness's attention towards the appellant's image. The witness was equivocating between two images, number 6 (the appellant) and number 9 (who was not). There was no basis for concluding that the officer was doing anything more than giving unobjectionable assistance to an elderly witness. There had been no breach of the Code. As we have noted there is no complaint about that ruling.[21]So far as this second point is concerned, the prosecution accepted that it was a qualified identification, but in the Recorder's view that was no reason for excluding it entirely from the jury's consideration although they would plainly have to be directed as to the weight they should give to it.[22]Mr Herrmann repeats his submission before us, but in our view the answer is the same. A qualified identification is still an identification. The important point is that where there is a qualified identification it cannot form the basis of a conviction by itself, see George [2002] EWCA Crim 1923 at [35]. In that case the Lord Chief

Justice giving the judgment of the court said this:

"However, there are at least two situations where a qualified identification may in appropriate circumstances be both relevant and probative. First, where although the weight of the evidence will still be less than a positive identification, it supports or at least is consistent with other evidence that indicates the defendant committed the crime with which he is charged. Secondly, the explanation for a non or qualified identification may help to place the non or qualified identification in its proper context and so, for example, show that the other evidence given by the witness may still be correct. Otherwise, a non or qualified identification could be used to attack the credibility of other evidence given by a witness when the explanation for this may show that such an attack is unjustified."
[23]It was in the light of these observations that the Recorder went on to consider whether there was other supporting evidence. In his view there was. There was the strong circumstantial evidence that the appellant was recorded close to the scene of each burglary, close to the time of the burglary. Although the places where the first and second burglaries took place were close to each other, the third was some way distant. There was also Isabella Wilkinson's statement that the intruder was wearing a dark top with a light logo. In our view the Recorder's ruling does not give rise to a legitimate complaint. We would add that he took particular care to explain to the jury the weaknesses in this identification evidence - see the summing-up page 9F to 12B - including the differences between Isabella Wilkinson's description of the intruder and the appellant in terms of height and age, and also the difference in her description of what he was wearing.[24]The second ruling was in relation to the appellant's bad character. He had two convictions in 2001 for distraction burglaries where the victims were elderly people living in their own home. On the same occasion he was also sentenced for his part in a conspiracy to commit offences of the same type. In 2006 he was convicted of a further distraction burglary where the victim was an elderly person in their own home. In 2010 he was convicted for his part in a further conspiracy involving 21 premises occupied by elderly people in their own home. He had been sentenced to eight years' imprisonment for conspiracy to burgle.[25]The prosecution applied to admit the appellant's previous convictions for burglary under section 101(1)(d) and section 103 of the Criminal Justice Act 2003 on the basis that the bad character evidence was relevant to an important matter in issue between the defendant and the prosecution. The convictions were capable of establishing a propensity to commit offences of the kind with which he was now charged. The defence resisted the application on the basis that the evidence of previous convictions was being used to bolster a weak case. Mr Herrmann submitted that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that it should not be admitted. Having considered the provisions of section 101(1)(d), section 103(1), section 101(3) and section 103(3), the Recorder was satisfied that it was not unfair for these matters to go before the jury. In doing so the Recorder followed the steps set out in Hanson [2005] 1 WLR 3169: 1. Was the conviction capable of establishing a propensity? He answered "Yes". 2. Did the evidence make it more likely that he committed the offences charged? The Recorder answered "Yes". 3. Was it unjust to admit the conviction? The Recorder decided that it was not.[26]He accepted that the evidence of bad character should not be used as the principal evidence against a defendant.[27]Mr Herrmann in his submission today did not suggest that the convictions did not establish a propensity or did not make it more likely that the appellant had committed the offences charged. His submission was that the prosecution was using the convictions to bolster a weak case. It is clear from the case of Hanson at paragraph 10 that if there is "no or very little evidence against a defendant, it is unlikely to be just to admit his previous convictions, whatever they are." The question of justice arises here because these were not simply previous convictions showing criminality: it showed a modus operandi strikingly similar to the offences with which he was charged and being tried and in circumstances where he described his presence nearby as fortuitous.[28]The Recorder analysed the evidence. The identification was partial and not sufficient by itself. On the other hand there was compelling evidence that the appellant was present in the vicinity of each burglary at the time of the burglary. He was present in the vicinity of the first and second burglary at about 1.30, but he was also present close to the location of the third burglary some distance away an hour and a quarter later. Nor was this the only evidence. The case against him was, as the Recorder described, a jigsaw of circumstantial evidence: the partial identification, the description of the clothes, the direction of the bus in which the appellant was travelling, the place where cash was withdrawn from the ATM and his initial denial that it was him on the bus. It was circumstantial evidence but it was strong circumstantial evidence. Furthermore, since the Recorder adopted the right approach this court will only interfere if the judgment as to the capability of prior events to establish propensity is plainly wrong or his discretion to admit the evidence has been exercised unreasonably - see Hanson at [15]. In our view there is no substance in the criticism of this second ruling.[29]We should however mention a third ruling that there was no case for the appellant to answer. The defence submitted that the case should be withdrawn from the jury and pointed out in particular again to the weaknesses in the identification evidence. The Recorder ruled that it would be open to a properly directed jury on the evidence taken cumulatively to find that the same person committed all three burglaries and that the person was the appellant. The bad character evidence supported the identification evidence.[30]In our view the prosecution evidence before the jury (even without the evidence of the previous convictions) very clearly established a case to answer. Indeed it was Mr Herrmann's submission that this was precisely why the previous convictions should not have gone before the jury.[31]Finally, we have considered the directions in relation to the previous convictions that were given by the Recorder in his summing-up between pages 12D and 14C. They are in conventional terms and do not give rise to justifiable complaints.[32]We are satisfied that the evidence was properly admitted, the summing-up was fair and the convictions are safe. Accordingly the appeal must be dismissed.