Case No: 1999/00331/X4
Neutral Citation Number: [2001] EWCA Crim 1698
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday 19th July 2001

B e f o r e :

LORD JUSTICE MANCE
MR. JUSTICE ASTILL
and 
HIS HONOUR JUDGE GORDON

	R	Respondent	
	
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 CHARLES	Appellant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
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Marion Smullen (instructed by the Registrar for Criminal Appeals for the Appellant)
John Causer (instructed by the CPS for the Respondent)

Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Mance: 
1.	On 17th December 1998 in the Crown Court at Aylesbury, before HHJ Morton Jack, the appellant was convicted after an eight day trial of robbery and having with another an imitation firearm with intent to commit an indictable offence, and was sentenced to 7 years imprisonment concurrent on each count. The appellant absconded shortly before the conclusion of his trial, and was re-arrested only in March 2000. He now appeals against conviction, with leave of the Full Court given on 29th January 2001, on two grounds: (i) that the judge wrongly admitted the identification evidence of Gail Haddon and certain police officers despite what are said to have been breaches of Codes D:2.17 (amended before us to D:2.0), D:1.9, D:2.21A and D:2.3 issued under the Police and Criminal Evidence Act 1984 and (ii) that the judge did not deal properly in his summing up with the effect of such breaches and problems (or risks) relating to contamination of the identification evidence put before the jury. Various other grounds, on which leave was sought but which were not considered by the Full Court on 29th January 2001, have been renewed before us. The overwhelming focus before us has however been on the two grounds which we have identified.
2.	The background to the indictment lay in an armed robbery at travel agents “Going Places” as long ago as 24th April 1996. The trial to which the present appeal relates was a retrial, after three previous trials had been aborted for one reason or another. At about 10.05 on 24th April two men drove up to the travel agents in a stolen Golf car, with hazard lights on. They entered, one of them carrying a handgun. The front room staff (Natalie Crane and Marie Turney) were bundled into a back room, where the manageress, Gail Haddon, was working. After forcing her to open the safe, they pushed her into the front office and forced her to open two tills and another safe there. They emptied and took the cash contents, as well as the contents of Miss Haddon’s bag. They then locked Miss Haddon with her two colleagues in the back office. The police were called, and attended and conducted extensive investigations at the travel agents and police station. No note was made of her initial oral description of the robbers. But Miss Haddon gave a detailed statement, commencing at the travel agents but probably completing it at the station. The times between which it was taken were not recorded. The statement indicates that, although she was with good reason clearly very frightened, she had a good opportunity to observe and hear both robbers, who spoke to each other and her at various points. Her evidence at trial was that the whole incident lasted as long as 10 minutes. At a video identification parade held on 6th August 1996, she identified the appellant as the man not carrying the gun (male 1 in her statement).
3.	Shortly afterwards, PC Wing saw a Golf car with two occupants and followed it in order to warn them not to drive with hazard lights on. The occupants took fright, so much so that when they came to the place where a second get-away car was waiting, the Crown’s case was that only one of them managed to transfer to the get-away car. The other carrying the bag with the stolen cash, was left to run away into the countryside footpaths around Amersham. He discarded the bag, which was found at about 12.50 by a passer-by. Another passer-by saw a black man running by, but could not identify anyone.
4.	At about 11.00 a video tape was recovered by the police from a near-by Threshers off-licence. It was viewed by DS Diggle and Inspector Williamson, copied and a number of enhanced stills made from it. The copy video was within about an hour shown to a group of Amersham officers, but none recognised either of the robbers shown on it. It was then taken to High Wycombe and shown to a group of members of the CID crime support unit there at about 15.35. Anyone who knew or suspected he knew the identity of either robber was asked to inform DS Diggle on an individual basis. One officer, PS Beirne, did this. He said that he recognised the appellant, from investigations relating to two previous offences, where the appellant had maintained an alibi and had not been convicted. During those investigations he had in fact seen the appellant on four occasions during the previous nine months for about three hours in total. During the present trial, it was put to PS Beirne that he had been shown the stills, but he denied this. The officers present at this showing of the copy video were recorded on the video sleeve. The sleeve, or possibly the whole copy video, was lost at some point after the committal, but the notes made on the sleeve were fully recorded during the committal proceedings and so were not lost.
5.	That evening a search of the footpaths around Amersham was mounted by TSG officers, on the basis that the robber who had discarded the bag was likely to return to try to retrieve it.
6.	At 0505 next morning, DS Diggle and DC Brierly visited the flat at 4 St. Dunstan’s Close, Hayes, Middlesex where the appellant lived with his girl-friend, Marissa Taylor. The appellant was not there, but the officers found that the last call to her telephone had been made at 00.03 from a telephone kiosk in Gayhurst Road, High Wycombe. On leaving Miss Taylor’s flat, DS Diggle took with him a photograph of the appellant holding his young son by Miss Taylor.
7.	DS Diggle then went with DC Collett to Gayhurst Road, High Wycombe, Bucks., where, on arrival at 06.50, they saw the appellant and another man, (later identified by DS Diggle as Richard Sutton) in the telephone kiosk. When the appellant and the other man saw the police, they ran off. At about 07.00 the appellant returned to the kiosk. When the officers drove towards him, he again ran off, into nearby Warwick House.
8.	DS Diggle returned to Amersham and briefed a group of armed officers to arrest the appellant and anyone with him in Warwick House. The group included the officers who had searched the Amersham footpaths on the evening before, with the exception of a PC Mooney. No record was made of the briefing. The officers duly arrested the appellant and Sutton in Warwick House at 12.02. The appellant was wearing blue clothing, particularly a sweat-shirt, baseball cap, jogging bottoms and mainly blue trainers. After making the arrest, six of the officers said that they recalled seeing, on the Amersham footpaths at about 1915 during their search the previous evening, a black man wearing clothing consistent and with an appearance consistent, although there were some discrepancies between individual descriptions, with those of the appellant on his arrest. Five of these officers identified the man seen on the previous night with the appellant on his arrest. None of these officers had made any note of seeing any man the previous evening. Their statements referring to the man they said they had seen on the Amersham paths on the evening of 24th April were made on 25th April, shortly after the appellant’s arrest.
9.	The appellant and Sutton denied involvement in the robbery. In interview that evening between 1823 and 1846 and between 1918 and 1952, the appellant made no comment answers on his solicitor’s advice, but volunteered statements that he had been at his flat or with others over the night of 24th April, and that they had woken up late and stayed at home meeting friends, who he refused to identify. He also maintained then and in his alibi notice that he had been with his girlfriend during the evening of 24th April until 1900. The Crown admitted for the purposes of the trial that, although the appellant had refused to identify his friends to the police, he had, prior to the interview, identified them to his solicitor as Sutton, Dibby and Anthony Shaw. 
10.	The appellant and Sutton are both black, but dissimilar in looks. Sutton was put on an identification parade, where Miss Haddon did not identify him, but picked out a volunteer. The police – with “total incompetence” as the judge pointed out to the jury in summing up – then suggested at 2254 that the appellant be put on an identification parade using the same volunteers as in Sutton’s parade. The appellant’s advisers not surprisingly refused to countenance this. The lateness of the hour precluded the finding of further volunteers for an identification parade. The number of blacks resident in the Amersham area to whom the police might hope to look for identification parade purposes is said to have been anyway limited. Counsel for the Crown also told us that he had been informed accordingly by an officer and that the judge had in turn been informed of this. Evidence was also adduced at trial to that effect (summing up page 30D). It was also too late to attempt a video identification, but the note made by the officer conducting the parade records the appellant’s solicitor as stating in any event that “she would not allow her client to stand on a video ID”. Inspector Doe concluded the matter by saying that he would consider arranging a confrontation, but this idea does not appear to have been pursued. 
11.	In a statement dated 27th April Marissa Taylor supported the appellant’s alibi for the time of the crime, but did not support it for that evening. She said then and in her evidence at trial that the appellant had been out from about 1800 on 24th April – giving time enough for the appellant to be in Amersham by 1915, when the TSG officers said that they saw the black man on the Amersham footpaths during their search.
12.	During May the police offered to put the appellant on a further identification before Miss Haddon, but he refused. They then set about preparing a video, combining a video taken of him in Amersham police station with video material of volunteers, who had to be found and brought to the same police station for that purpose. A first video was prepared on 25th May, but the appellant and his solicitor only accepted five of the volunteers shown as acceptable and Inspector Bentall, who was in charge, himself accepted that the video only showed eight acceptably similar volunteers. A second video was prepared on 26th June and 20th July. This was on 6th August 1996 shown to Miss Haddon, PC Wing  and others (someone who had been in the travel agents, three or four others from neighbouring shops and a traffic warden). Six persons identified volunteers and one made no identification. Miss Haddon identified the appellant as the man without the gun. It is fair to say that Miss Haddon clearly had by far the best opportunity of any of the eight, who saw the identification video on 6th August, to see and memorise the features of the robbers.
13.	On 30th May 1996 DS Diggle made a statement in which he recounted in detail the events of the early morning of 25th April. It included this sentence in relation to his search of the appellant’s and Miss Taylor’s flat: “Taylor told me that Charles lived here & she went on to state she had not seen him since the morning of the day before (ie 24th April 1996). He had gone out she could not be specific on the time she thought he had visited his mother at 8.00 pm the previous evening, from where he had phoned her. This was the last time she had spoken to him. He had told her he was going to a nightclub in Central London.”  The statement produced certain very rough and short notes made regarding events, but they did not record any conversation with Miss Taylor. The information allegedly given by Miss Taylor was not put to the appellant when he was being interviewed on 25th April and 27th April 1996.
14.	At the committal on 1st and 2nd July 1996, DS Diggle did not give evidence. His statement of 30th May was, apparently, only served later. At the first trial, on 10th October 1997, DS Diggle did give evidence, and was asked on a voir dire why he had made rough notes, and did not use his pocket book. He said it was because things were happening so quickly and also that his statement was made purely from memory (no doubt assisted where relevant by the rough notes). The notebook of DC Collett, who accompanied DS Diggle to the flat on 25th April 1996, contained no note of the alleged conversation. DS Diggle’s evidence regarding Miss Taylor’s alleged statement as to when she had last seen the appellant was in the circumstances excluded from the first trial. At the second trial, however, on 24th June 1998 DS Diggle produced a pocket book, which contained entries for 25th April 1996 covering the search of the flat and the detection of the appellant and Sutton in High Wycombe early that morning. DS Diggle said that he had now located the book and that the entries had been made immediately after the events recorded. The entries appeared between detailed entries for 6th March 1996 and 22nd August 1996. The entry for 22nd August and the five further entries which it contained extended over 20 two-sided pages.
15.	DS Diggle’s evidence regarding what Miss Taylor had said was not excluded at the fourth trial, to which this appeal relates. The statement of 30th May 1996 and the notebook entry are in virtually identical terms, such that one must derive from the other. DS Diggle said that he must have made the statement from the notebook. But he could give no satisfactory explanation as to why he should have mislaid, forgotten and not disclosed his notebook prior to June 1998. At the fourth trial, however, counsel for the appellant did not seek to exclude DS Diggle’s evidence regarding the notebook. She preferred to use it to the appellant’s advantage to cross-examine and try to discredit DS Diggle, and through him the police, generally before the jury. DS Diggle said that he had made the notebook up after the events recorded and after he had returned to the police station.
16.	At the fourth trial, as at the earlier trials, the appellant’s defence involved attacking the integrity of officers involved in the investigation and arrest. It was said that DS Beirne wanted to frame him, out of annoyance at not seeing him convicted on the two previous occasions. It was suggested that DS Diggle had fabricated his notebook and was corrupt. There was put to PC Mooney the finding of a disciplinary hearing that he had lied in a statement in a previous matter. The arresting officers were accused of having put their heads together on 25th April 1996 to make up a story about seeing a man on the Amersham footpaths on the evening before. As a result of this, the appellant’s record went before the jury. Aged 26 at the time of the fourth trial, he had had five previous convictions, involving burglary and possession of an offensive weapon and including an attempted street robbery, for which at the age of 20 he was sentenced to 3 years in a young offender institution.
17.	At trial, Miss Smullen objected to the Crown’s identification evidence on the ground that there had been numerous breaches of the codes issued under the Police and Criminal Evidence Act. On 30th November 1996, the judge considered that the identifications were a matter for the jury, and said that he had not identified any unfairness in admitting them. However, he had not been invited to hold and had not held a voir dire, and he indicated that it was difficult to be quite sure of the evidential basis (to take), and that (when the evidence had been heard) the submission might quite properly be renewed. The submission was renewed a week later, but the judge said that he repeated his previous rulings, meaning, no doubt, that the matter was one for the jury and there was no unfairness requiring exclusion of the evidence. The brevity of the judge’s rulings has led to some difficulty before us, particularly in understanding the scope of the argument with regard to Miss Haddon. The judge on 7th December 1998 ruling did refer to “the argument and decision” on 30th November 1998, but unfortunately the argument on that day has not been transcribed. For completeness, we mention that, after the conclusion of the Crown’s case on 14th December 1998, the judge also refused a submission of no case to answer, based on the breaches of the codes relied upon and the principles in R. v. Turnbull [1977] QB 224; 63 CAR 132.
18.	The appellant’s grounds relate, first, to the judge’s decisions on 30th November and 7th December 1998 and, secondly, to his summing up. We can start with the complaint that there was, as regards Miss Haddon, a breach of code D:2.0, providing that “A record shall be made of the description of the suspect as first given by a potential witness”. There are linked complaints that there was, therefore, no timed and signed record of Miss Haddon’s first description (cf. D:1.9) and that there was no first description to be provided to the appellant before the video identification parade of 6th August 1996 (cf paragraph D:8A in  Annex B to Code D), although we do not see that any significance or prejudice can attach to the last point in the light of Miss Haddon’s statement. Code D:2.17, on which reliance was initially sought to be placed, is also inapplicable, since it is dealing with witnesses taken to a particular neighbourhood or place to see whether they can identify a person previously seen. That never happened with Miss Haddon. As to D:2.0, no officer noted what initial description she gave when police attended after the 999 call. In her statement later that evening, Miss Haddon described male (1) as follows: “Black Male, aged 22-26, 5ft. 7” – 9”, slim/medium build, black very short hair which was almost shaved, no facial hair. He was generally smart in appearance. I could not judge his accent. He was wearing a mustard suede waistcoat and a light coloured long sleeved shirt that was buttoned to the top and possibly without a collar. He was possibly wearing trousers as opposed to jeans although this I can only say by his smart appearance.”  The judge in his summing up made clear that “good police practice” made it “vital” to take down an immediate description, while it was fresh in the memory:
 “You would think – you did not really need to know about good police practice to understand that that is a vital thing to do. There has been an armed robbery; the first thing you do is say: “What did they look like?” Get it down, time and date it, absolutely fresh in the memory. …. But it was not done.” 
He went on:
 “It may be as a result of chaos, who knows. Maybe each officer thought that somebody else had done it, I do not know, but it was incompetent you may feel. At any rate you do not have the advantage of an immediate description by Miss Haddon”.
19.	However, we note that her description that evening was detailed, and that the course of events does not suggest any real possibility of contamination. She firmly denied any in evidence. Mrs Smullen points out that no formal record was made of the whereabouts or use of the copy video and the stills made from the video recording recovered from the nearby off-licence. The only record relates to the original which is simply shown as entering and remaining in police custody. There is therefore no conclusive record to show that Miss Haddon was not shown the copy video or a still photograph of the appellant taken from it. That would have been quite improper, and there is nothing positive to support any such suggestion. The evidence is that the copy video went with DS Diggle to High Wycombe, where DS Beirne identified the appellant. We note that Miss Haddon’s statement was taken by SR Armstead on 24th April, who did not go to High Wycombe and was not involved with DS Beirne’s identification that afternoon. 
20.	The next submission relates to Miss Haddon’s identification. It is that there was a breach of code D:2.3, which requires an identification parade to be held if the suspect consents, whenever the suspect disputes an identification. Here, the appellant disputed his identification in interviews ending at 1952. The police on 25th April arranged an identification parade for Sutton, but no proper parade for the appellant. No further identification parade was offered until an uncertain date in May, when the appellant refused it. No video film identification took place until 6th August 1996. The judge made strong comment on the police’s “total incompetence” in suggesting an identification parade on 25th April with the same volunteers as Sutton’s parade. At the same time, there was, as we have said, evidence about the difficulties in the Amersham area of finding sufficient volunteers (summing up page 30D); and, when the police offered another parade in May it was refused. That does not excuse the fact that there was then a “much longer gap than there ought to have been” (as the judge pointed out in summing up, page 23F) before the video identification parade on 6th August, although the difficulty in finding suitable volunteers continued to play some role. Again, the question is whether the delay in the identification procedures was such that Miss Haddon’s identification should have been excluded, and whether there was any real risk that it may have affected or led to contamination of Miss Haddon’s evidence.
21.	There was also evidence that, in consequence of a yet further burglary at Going Places, DS Diggle attended there on two further occasions prior to 6th August 1996, and Mrs Smullen invited consideration of the possibility of contamination of Miss Haddon’s evidence or recollection by DS Diggle on these occasions. We agree that the delay until 6th August 1996 was certainly excessive. But we would not fault the judge’s decision to allow the evidence in and to leave it to the jury to assess with the adverse comments which he made. Again, although the defence was conducted on a basis that raised the risks of impropriety and contamination at every possible point, Miss Haddon was an entirely independent witness. Her evidence was (in common with DS Diggle’s) clear that there had been no such misbehaviour, influence or contamination with respect to her evidence and identification.
22.	We also note that neither the skeleton used by Mrs Smullen on the applications of 30th November and/or 7th December 1996 nor her submissions of no case to answer on 14th December 1996 contain the present objection relating to the admission of Miss Haddon’s identification evidence. There was an unfortunate disagreement of recollection between counsel before us as to whether any such objection was raised orally. But the documents are clear: the objection under D:2.3 was related expressly to PC Mooney’s evidence and that of the other officers searching the Amersham footpaths on the evening of 24th April 1996. Had the objection been regarded as having any real force with respect to Miss Haddon’s identification, we can be sure that Mrs Smullen would have identified it in her written submissions. This, however, merely reinforces the conclusion that we anyway reach.
23.	When DS Diggle showed the copy video to Amersham and High Wycombe officers on 24th April 1996, he showed it to them as a group, although his evidence was that he asked any officer who knew or suspected he knew the identity of either robber to speak to him individually. DS Diggle admitted in evidence that he was not familiar with code D:2.21A, whereby such material “shall be shown on an individual basis so as to avoid any possibility of collusion”. Bearing in mind that DS Beirne was the only officer from either Amersham or High Wycombe to claim to identify the appellant (or anybody), and bearing in mind also the evidence that he did do so on an individual basis, we cannot regard this breach as having any serious implications in the present context, still less as justifying the exclusion of DS Beirne’s identification. Again, it is suggested that DS Diggle may have shown officers including DS Beirne one or more still photographs taken from the video recording. This was denied by DS Diggle and DS Beirne, and there was no positive evidence to support it at all. Mrs Smullen referred us to Archbold para. 14-87 and to Annex D to code D regarding the showing of photographs to witnesses, but, in the absence of any evidence of any such showing, these passages do not assist the appellant. Further, we have difficulty in seeing how it is suggested that DS Beirne’s evidence could have been affected or contaminated. DS Beirne knew the appellant. If he wanted to try to frame him, as Mrs Smullen was suggesting, he would do so having seen the video, whether or not he had seen a still photograph. It would be a remarkable coincidence, if both DS Diggle and DS Beirne happened to want to frame the appellant independently, with DS Diggle showing DS Beirne one or more photographs for that purpose and DS Beirne then acceding enthusiastically to that purpose. We consider that the issue of framing was in the circumstances one for the jury to consider and determine.
24.	The next point relates to PC Mooney and (to a lesser extent) other officers who claimed to have seen a man on the Amersham footpaths on the evening of 24th April. PC Mooney’s statement dated 25th April 1996 recounted the sighting, as follows:
 “As we approached the junction with Stanley Hill Avenue a West Indian male approximately 6 feet tall, 25 years, slim build entered the alleyway from Stanley-Hill Avenue, he was wearing a blue baseball cap. a blue sweat top, blue tracksuit bottoms and blue training shoes. I couldn’t see his hair and he was clean shaven. Anyway he walked into the alleyway straight past us towards Highover until he eventually went out of sight. …. I have never seen this West Indian before but can say without any doubt whatsoever I would recognise him again.”
25.	PC Mooney was not asked to take part in any identification parade. Again, it is submitted that this was a breach of code D:2.3. So in our view it clearly was. The judge also took the same view. In his summing up, he said:
 “The point was taken that he was never asked to attend an identity parade. You have heard about the difficulties of getting an identity parade together. It might be that the police thought that he was thoroughly identified already, but, at any rate, you bear in mind the criticism – and here is an officer who said he would definitely recognise him and was not given the opportunity of doing so on an identity parade. On the other hand, that leaves the prosecution with absolutely no evidence of such identification. You make of that what you will. But it was put to him specifically by Mrs Smullen “You did not see the events on 24th April – you only put them down on what you were told by others” and there is a direct head-on allegation of corruption and perjury against this officer. It seems that there is no evidence whatever that that is what he did – it is a suggestion – and then it is followed, you remember, with the questions about the disciplinary hearing at which it was found he had made a false or misleading statement and there was a finding that he had lied in a statement in another matter. Members of the jury, was that just a smear because it was available? Was this finding against this officer? Because except that he lied before, what evidence is there that he was lying on this occasion?”
26.	No other officer who took part in the search of the Amersham footpaths was asked to attend an identification parade. However, the other officers who said that they had seen a man on the footpaths were all officers who took part in the arrest of the appellant on the next day, and who then identified him informally as the man they had seen. An identification parade - although now required on the authority of R. v. Forbes [2000] 1 CAR 430 (HL) - could not have the same significance in respect of them. Further, the prospect that they might fail to identify the man they had just arrested could not be large.
27.	Another point made in respect of PC Mooney and the other officers was that none of them made any record of the sighting of a man on the Amersham footpaths until after the arrest on the next morning. We are not very impressed by that point. The sighting of a black man on the evening of the robbery on footpaths which a black robber might have or probably had used that morning is not by itself so significant that the officers were bound to record it. This is so, even though one officer, PC Horne, said in evidence that the thought had crossed his mind, when he saw a black man on the Amersham paths on the evening of 24th April, that they should stop him, because “that just wasn’t right seeing him there”, and that he said that he had mentioned this thought to PS Kempster, but no action was taken. Presumably, it was felt that there was nothing to suggest that the man was not a perfectly innocent walker. The sighting only became significant when the same officers found next morning that the man they had been detailed to arrest and arrested was to all appearances the same man wearing the same clothing.
28.	Mrs Smullen again suggested that still photographs taken from the video recording may have been shown to the officers at the briefing, and that, although she could not point to any code provision requiring a detailed record of the briefing, it meant that the possibility of distortion of the officers’ evidence could not be excluded. Again, no officer gave any evidence at trial to support or suggest any such showing of photographs. At the first trial a Mr Cooper referred to seeing pictures, which Mrs Smullen invited the jury to treat as an admission that such photographs were shown. At this trial, the judge reminded the jury of Mr Cooper’s evidence at the first trial as well as his evidence before them, which was that it seemed to be the video recording itself to which he had been referring. The judge also commented adversely on the Mr Cooper’s capabilities and evidence, in terms with which Mrs Smullen did not take issue before us. Further, we find it difficult to attach real weight to the suggested possibility of showing of photographs to the officers. It appears to be suggested that, if the officers had seen the robber on the footpath the evening before, they would have said so immediately, if they were shown any photographs. In fact, nothing of the kind was said during the briefing, but the officers did identify the appellant as a person they had seen the night before immediately after his arrest. Not only was there no evidence to support the theory that officers may have been shown any photographs during the briefing, but one would have thought that, if they had been shown any photographs and were minded to frame the appellant or to confuse him with anyone they had seen on the footpaths, they would have done so at the briefing. As it is, they were briefed to arrest two persons in a flat in Warwick House, one of whom was certainly believed by DS Diggle to be the appellant. When entry was made, the appellant was duly found and arrested, and the officers had every opportunity to see him then, which was when they identified him as the man they had seen the previous evening on the footpaths.
29.	The judge had, in these circumstances, to consider whether to exclude the evidence of the officers about the man they claimed to have seen on the Amersham footpaths, and his identification with the man arrested, in the light of the failure to hold any identification parade involving them and the appellant. Again, we consider that he was entitled to exercise his judgment in the way he did, and that the breach involving PC Mooney and, so far as there was any, the other officers was not so serious or likely to lead to any such unfairness, as to require the exclusion of the officers’ identification evidence. 
30.	Finally, Mrs Smullen stresses that the breaches which we have identified must be looked at together, and in the light of the very unsatisfactory position regarding DS Diggle and his evidence of his alleged conversation with Miss Taylor on 25th April 1996. DS Diggle was, she submits, a or the central figure on the police side, and the risk that he might have manipulated the case against this appellant could not be satisfactorily excluded having regard to the numerous breaches of the codes and proper practice. In our view, the judge was both entitled and right to take the view he did that all the evidence and all these matters should go before the jury. Miss Haddon’s evidence was, on its face, clear independent evidence. DS Beirne’s evidence, unless he was guilty of a gross attempt to frame an innocent man, was also independent confirmation of identity. The five officers who arrested the appellant and then claimed to recognise him as a man they had seen the evening before on their search of the Amersham footpaths represented a further indirect source of identification. The defence case postulated a very large scale conspiracy involving lay witnesses and numerous officers from two different stations. Further, quite apart from DS Diggle’s evidence about what Miss Taylor had said about the last time she saw the appellant, Miss Taylor’s own statement and evidence failed to support the appellant’s evidence for the evening of 24th April. There was also the telephone call to Miss Taylor at midnight on 24th April, from the box where the appellant was sighted early the next morning, and the appellant’s refusal to identify to the police (as opposed to his own solicitor) those with whom he maintained in interview on 24th April that he had been earlier that day.
31.	We look at the position overall as Mrs Smullen invited. There is in our judgment still no basis for faulting the judge’s approach. We regret that he did not express his reasons more fully. That would have assisted this court, and would certainly shortened the time spent in argument before us. As it is however, we consider that his ultimate decision was correct. Mrs Smullen submitted that the principles stated in R. v. Turnbull [1977] QB 224, 228-231 should have led the judge to withdraw the case from the jury. She referred us to the passages dealing with situations where “the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions”. As a matter of fact, we consider that her oral submissions in reply under-stated the period over which and the extent to which Miss Haddon had the opportunity to see and remember the second robber (male 1, who had no gun). Further, the case did not depend solely on her evidence by any means. There were the (on their face) separate identifications by DS Beirne and, indirectly, by the five officers who gave evidence identifying the appellant with the man they had seen on the Amersham footpaths. Finally, there were other circumstances, such as: the telephone call(s) made by the appellant, his whereabouts when arrested; his alibi claims which were to a greater or lesser degree undermined by what Miss Taylor said; his evidence that he had at about 1100 on 24th April visited the grocer immediately opposite the Hayes flat that he shared with Miss Taylor, but his failure to ask anyone in the grocer’s to support this; and, although this is a minor matter, his failures in interview to disclose those who he said were with him on 24th April 1996.  The force of these separate strands of evidence was in our view considerable. The defence sought to undermine this, by suggesting conspiracy on a very large scale. We consider that whether there was any such conspiracy was pre-eminently a judgment to be left to the jury, as the judge did, and they evidently concluded that the conspiracy suggested could be excluded, and that the appellant had been properly and accurately identified. In these circumstances, we reject the submission that the judge should have stopped the case at the conclusion of the Crown’s case.
32.	We turn more specifically to the summing up. In R. v. Forbes Lord Bingham, giving the opinion of the House of Lords, said this:
“The appellant also has a substantial complaint that the recorder did not direct the jury that there had been a breach of the Code nor give any direction on the effect of that breach. It is in our opinion important that the position should be clear. In any case where a breach of Code D has been established but the trial judge has rejected an application to exclude evidence to which the defence objected because of that breach, the trial judge should in the course of summing up to the jury (a) explain that there has been a breach of the Code and how it has arisen, and (b) invite the jury to consider the possible effect of that breach. The Court of Appeal has so ruled on many occasions, and we approve those rulings: see, for example Quinn [1995] 1 CAR 480 at 490F. The terms of the appropriate direction will very from case to case and breach to breach. But if the breach is a failure to hold an identification parade when required by D2.3, the jury should ordinarily be told that an identification parade enables a suspect to put the reliability of an eye-witness’s identification to the test, that the suspect has lost the benefit of that safeguard and that the jury should take account of that fact in its assessment of the whole case, giving it such weight as it thinks fair.”
33.	On the facts in R.v. Forbes, however, the recorder’s “exiguous” reference to the absence of an identification parade did not make the conviction unsafe. The evidence of two street identifications by the victim (very shortly after the robbery) was, in the words of the Court of Appeal quoted by Lord Bingham, “compelling and straightforward” and -
“It would be wholly artificial to suppose that a reasonable jury might have taken a different view if they had been told that the appellant had been deprived of the chance that the complainant might not have picked out the appellant on a parade.”
34.	Returning to the present case, the judge started his summing up by reminding the jury in appropriate terms that matters of fact were for them alone, and that they were free to accept or reject what either counsel or for that matter he as the judge might suggest to them about the facts. He pointed out to the jury that the Crown case depended “wholly” on the correctness of the three identifications, by Miss Haddon, by DS Beirne and by the five arresting officers “which the defence alleges are mistaken”. He gave the jury in full and appropriate terms the standard direction for cases depending on identification evidence. Thus, he warned them of “the special need for caution before convicting Mr Charles in reliance on the evidence of identification”, because of the possibility that even an honest witness may make a mistaken identification. He warned them to consider carefully the circumstances in which the identification was made, and reminded them to consider timing, distance, light, interference, any prior observation or special reason for remembering the appellant, and any marked difference between any first description  given by the witness to the police and the appellant’s actual appearance. He told them to be “very, very careful about accepting evidence of identification”, because of the risk that even a number of honest witnesses may be mistaken.  He followed this with directions which are not criticised on the subjects of the appellant’s alibi and his failure to mention facts in interview on legal advice, his bad character and the general nature of his case. He then said this:
“Members of the jury, let us stand back from the problems before you for a moment and attempt to view the wood rather than the trees.  It is perfectly plain that this was a carefully-planned armed robbery involving a gun and at least three people, with two get-away cars, in Amersham, in broad daylight.  Even these days you may think that such an armed robbery in Amersham, a quiet old town in South Buckinghamshire, is a fairly rare event.  Certainly there was a vigorous and immediate massive police reaction to the 999 call.  There must in total, as you have heard, have been dozens of officers who were called away from the duties they were performing until the call came in to concentrate on this robbery.  There were a large number of officers Going Places; there were officers going up and down streets making enquiries; there was the officer, you remember, who was actually off duty and who walked in and said:  “What’s going on?”, and he joined in; there was the officer that had followed the get-away car; there were officers in Wealden Street; there were officers in Beech Grove and opposite the garages where the second get-away car was waiting; there were officers taking radio messages in and out; there were officers in Amersham Police Station who have been named who were concerned; there was the suggestion of using the police helicopter; there was discussion of road-blocks being set up, and all this happened on the instant out-of-the-blue.
You may think on the evidence that there was – at any rate for the first day or two after this massive inquiry had called the officers away from whatever else their duties were to concentrate on this – a degree of chaos, partly, perhaps, inexperience at dealing with this sort of thing, because later it extended further, did it not?  The Gun Squad were called in and the Support Group were called in – really a great number of officers.
It is possible, is it not, that certainly on 24th, and maybe on the next day as well, large numbers of these officers did not know what other officers were doing, or what they were recording, or what their exact duties were.  It may be that many of them did not know quite who was in charge, where or in charge of which part of the inquiry.  You might feel that there was a degree of chaos and there was a degree of incompetence, and there were breaches of the proper Codes of Practice – they are admitted, indeed – but to see it in proportion you have got to see it against the background of this crisis and the huge number of people needing to be co-ordinated.
You also have to remember that there was not just one defendant they were after – they were looking for three, although we have not heard about the inquiries made about the other two, but obviously they were going on at the same time.
So it is against that background you have to consider the suggestion that this incompetence was more than as a result of a surprise chaos but constituted deliberate dishonesty by a number of officers.  I say that not to prejudice you one way or the other, but simply as common sense that that may be what happened, and you should perhaps bear in mind when you consider whether there was dishonesty.”
35.	In the course of summarising the evidence, the judge identified the failure of the police to note down Miss Haddon’s first description of the robbers, given during the morning of 24th, so that the first record of any description by her appeared in her statement that evening. We have summarised what he said in this regard, and make no criticism of it. We have also summarised the judge’s summing up as regards the course of and delay in completing any identification procedures with regard to Miss Haddon. We have no doubt that the jury was well aware from counsel’s submissions of the undesirability and risks of so long a delay and of the reasons why an identification parade would have been preferable to a video identification procedure. The judge reminded the jury to bear in mind that Miss Haddon’s attention was likely to have been primarily on the other man with the gun, and of the fear and stress which she must have been experiencing.
36.	As to the failure to hold an identification parade involving officers who claimed to have seen a man on the Amersham footpaths on the evening of 24th April 1996, the main thrust of this complaint clearly went and is still directed to PC Mooney, who did not arrest or therefore identify the appellant informally on the next day. Mrs Smullen’s written submissions of no case to answer in fact only mention PC Mooney in this context. This was probably, at least in part, because it was at that stage thought in the light of R. v. Popat [1998] 2 CAR 208 (decided 23rd March 1998) that there was no duty to hold an identification parade in respect of a witness (such as each of the five arresting officers) who had already produced or identified a suspect informally to the police. But, even under the principles stated in R. v. Forbes, the significance to be attached to failure to hold an identification parade is likely to be less in the case of someone who has informally identified a suspect, than in relation to someone (like PC Mooney) who has not made any sort of identification but believes that he could. The judge here correctly directed the jury that the police had not held any such parade. There was evidently an issue on the evidence as to the feasibility of doing so, and he reminded them of that issue. He said this in relation to PC Mooney:
“The point was taken that he was never asked to attend an identity parade. You have heard about the difficulties of getting an identity parade together. It might be that the police thought that he was thoroughly identified already, but, at any rate, you bear in mind the criticism – and here is an officer who said he would definitely recognise him and was not given the opportunity of doing so on an identification parade.
On the other hand, that leaves the prosecution with absolutely no evidence of such identification. You make of that what you will.”
37.	In relation to Miss Haddon, the police certainly did not take the line that no further identification procedures were appropriate after 25th April. On the other hand, as the judge said, PC Mooney’s identification was, in its nature, not as central as Miss Haddon’s. Nonetheless, we think that, at least with the hindsight of R. v. Forbes, the judge should at this point in his summing up himself have endorsed the criticism. Further, he should have mentioned that the defence had lost a potential advantage through failure to have a parade – namely the possibility that PC Mooney would have failed to identify the appellant as the man on the footpaths.
38.	More generally, the summing up is criticised as taking too indulgent or sympathetic a line towards the Crown, and as undermining the force of the defence case. The judge referred at several points to the nature and implications of the appellant’s defence. In his initial remarks, which we have quoted, the judge underlined the possibility that the jury might take the view that there was chaos and incompetence on the police side, and it was against that background that he invited them to consider the suggestion that there was more than chaos, but deliberate dishonesty by a number of officers. At a later point, he referred to defence suggestions that PC Mooney might have been put up to lying by other officers, that the arresting officers might have put their heads together to make a false statement, that DS Diggle might have showed photographs to Miss Haddon and that DS Beirne may have been put up to his Threshers identification by improper means. In all these areas, it is suggested that the summing up was unbalanced or unfair.
39.	As to the suggestion that DS Diggle had poisoned or affected Miss Haddon’s memory or identification, the judge said at page 25F-G:
“I have to say that there is absolutely no evidence that any such thing happened; it is only a suggestion, and, of course, both Mr Diggle and Miss Haddon denied it strenuously. You should perhaps be careful in this case to distinguish between what is suggested to witnesses as impropriety and what there is actually any evidence of. But you bear that suggestion in mind in considering Miss Haddon’s identification.”
40.	Here, as elsewhere, the judge expressed himself forcefully. But he was dealing with a somewhat unusual case, where the defence did not stop at suggestions of mistaken identification, but put at its forefront widespread suggestions of gross impropriety against numerous different officers, affecting their testimony and the testimony of an independent witness (Miss Haddon), without having any obvious positive basis on which to base such suggestions, save in the case of DS Diggle, whose evidence regarding his pocket book did provide material for attacking his honesty.
41.	As to the suggestion of collusion or mistake by the searching and arresting officers from the TSG, the judge said at transcript page 33E:
“…. of course it is possible, anything may have happened, but there is no evidence of it.
But a very broad brush was taken to smear the police very widely here. I express no view on it; the police often, I am afraid these days, as we all know, are liable to bending the evidence and to corruption and to misbehaviour, but whilst it is possible, when considering it you do have to consider what actual evidence there is of it.
That leads me to what is really the central plank in these allegations against the police, Mr Diggle.”
42.	Here, it seems to us that, although the word “smear” would have been better avoided, the judge took, as the immediate background to DS Diggle’s evidence, knowledge or assumptions regarding police corruption and misbehaviour, in a way which was positively favourable to the defence case, whilst at the same time reminding the jury of the absence of positive evidence of any generalised corruption or misbehaviour in this case.
43.	The judge then went through the position relating to DS Diggle and the history of his production of the pocket book, summarising the issue as follows:
“It is certainly incompetence and it is deeply unsatisfactory at the least, no doubt of that, but is it deliberately dishonest? Or was this note in fact made when Mr Diggle said he did make it?”

Later, he said:

“I go into it in some detail; police officers deserve no more credit in court than anybody else. There are no special-position witnesses and you must take it just as likely to be liars as other people – you judge them as you find them.
But this is a very serious allegation against a senior officer, and you saw him, and how he withstood the lengthy questioning about it. You have to decide, in effect, whether this note was made when he says it was and only produced later through forgetfulness and incompetence, or whether he was telling you complete lies about it and he has forged it in the most monstrous way, and that is the question for you.”
44.	We have to consider whether the summing up, viewed as a whole, was unbalanced or unfair, so that the verdict following it may be regarded as unsafe. In particular passages we have cited the judge did, as we have said, express himself with considerable vigour. Words such as “massive impropriety” and “monstrous” would, we think, have been better omitted from his summing up, even though, in ordinary usage, we would not think that they were inappropriate descriptions of what the defence had suggested was or might have been the police’s conduct. The judge could have expressed himself still more forcefully in relation to the breaches of proper procedure provided by the codes, although it is fair to say that he spent considerable time on this aspect in the course of the summing up (as no doubt did counsel for the appellant in her closing submissions). In this area his summing up was to some extent influenced  by views of the law then current, which have been finally dispelled by the House of Lords decision in R. v. Forbes, but not we think in any really significant respects. The judge did, on any view, omit to tell the jury specifically of the potential advantage which the absence of an identification parade involving PC Mooney involved for the defence.
45.	The question is whether such imperfections lead to any real doubt about the safety of the jury’s verdict.  If the judge had expressed himself less forcefully, when describing the defence case regarding police conduct, if he had given more extensive or still more vigorous warnings regarding breaches of proper procedure, and if he had warned of the potential advantage which could have accrued, if on an identification parade involving PC Mooney, PC Mooney had failed to identify the appellant, is there any likelihood that the jury’s verdict would have been different? We have considered this question carefully, taking not merely the passages which we have cited in isolation, but looking at the summing up and the evidence in the case as a whole.  We have come to the conclusion that there is no appreciable risk that the jury’s verdict would have been any different. The Crown’s case against the appellant and his defence depended upon starkly opposed views as to the integrity and reliability of the different strands of evidence on which the Crown relied. The summing up taken as a whole involved full and adequate directions on the law, including appropriate warnings as to the risks and problems regarding identification evidence and the need for special caution, as well as a fair summary of the evidence. The majority of the jury must have formed a clear view that the Crown’s evidence was both honest and reliable. Having regard to the numerous different strands on which the Crown’s case rested and the jury’s evident conclusion that both large-scale corruption and widespread mistake could be excluded on the material before it, we do not consider that there is any appreciable risk that the jury’s conclusion depended upon or would have been affected by any such imperfections as can be found in the summing up. We would therefore dismiss this appeal on the grounds on which leave was granted by the Full Court.
46.	We turn briefly to the other grounds on which leave to appeal is now sought. They were, as we have said, barely pressed by Mrs Smullen before us, although she did mention Article 6 of the European Convention on Human Rights. We do not think that that can add in this context anything to her submissions as to breaches of the codes and of proper police practice and on the safety of the jury’s verdict. Ground (b) submits that the judge did not deal properly with the fact that the onus was on the Crown to disprove the appellant’s alibi. We see nothing in that. The judge made it clear at page 9E in the transcript that the appellant did not have to prove his alibi and “On the contrary, the prosecution must disprove the alibi”. Ground (c) is that the judge failed to deal properly with DS Diggle’s role. In our view, this is not made good in any way. The judge clearly directed the jury that the allegations against him were the central plank of the defence case (page 33F). He reminded them in detail of the history and issues regarding the notebook. But earlier in the summing up he also reminded them of the suggestions of impropriety in relation to Miss Haddon (page 25D-F), and in relation to the whole police investigation (page 31E-H). We have no doubt that the jury, with the benefit of Mrs Smullen’s cross-examination and submissions, will have been well aware of the range of DS Diggle’s involvement and of the allegations made against him. Ground (d) suggests that the judge did not deal properly with the interviews, which it is said were “highly aggressive”. It is also said that the appellant said very little in evidence that was not contained in interview, and that the European Court of Human Rights’ decision in Condron v. The United Kingdom (EctHR; 2nd May 2000) has changed the position regarding the drawing of adverse inferences. The appellant gave no comment answers in interview, he volunteered through his solicitor the information that he had an alibi, but he failed to name the others who might support it. That was a relevant failure. The judge gave full and appropriate directions regarding the circumstances in which an adverse inference might be drawn. The submissions regarding aggression and the decision in Condron were not pursued or made good by Mrs Smullen orally before us, and, so far as the interview became at all heated, the Crown submits that it was as a result of disputes between the appellant’s solicitor and the interviewing officers. Finally, ground (e) refers generally to the large number of attacks on police evidence, based on the breaches of proper practice and DS Diggle’s evidence, and objects to the judge’s reference to a “smear” in the passage at page 33E which we have set out above. We think that the sentence in which this word was used might by itself have been understood in an emotive sense detrimental to the appellant’s case, and that the judge would better have avoided the word. But the sentence is immediately followed by a direction recognising the occurrence of police corruption and misbehaviour in terms generally favourable to the appellant’s case. Further, the judge made it clear that it was for the jury and not him to judge whether there was just incompetence or dishonesty. In context, the overall effect was not we think, therefore, prejudicial. In conclusion, we do not consider that there is anything in the additional grounds to justify leave to appeal and we refuse it.