No: 200202733/C1 
Neutral Citation Number: [2003] EWCA Crim 3738
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Monday, 1st December 2003
 
B E F O R E:

LORD JUSTICE KENNEDY 

MR JUSTICE CURTIS 
 
MR JUSTICE FORBES 
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R E G I N A 

-v-
 
DANNY STEVENS 
 
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MISS R POULET QC appeared on behalf of the APPELLANT
MR J DENNISS appeared on behalf of the CROWN
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JUDGMENT  

1.	LORD JUSTICE KENNEDY:  On 27th March 2002 in the Crown Court at Reading, this appellant, who is now 24 years of age, was convicted of five offences of wounding with intent to cause grievous bodily harm. On 26th April 2002 he was sentenced to life imprisonment.  He now appeals against conviction and sentence by leave of the Single Judge.
2.	The offences arose out of an incident which occurred on 23rd June 2001, at the Holiday Inn, Caversham. The Rooney family, who were members of the travelling community originating in Ireland, were there to celebrate a wedding.  It particularly concerned some members of the family who normally lived in a caravan site in Arborfield.
3.	At about 9.00 pm the appellant and his co-accused, John Paul Collins, with their wives, arrived, on the Crown's case, uninvited.  They too were members of the travelling community but of English origin.  Some time after their arrival, at about 11.30 pm, there began, for a period of about 20 to 30 minutes, a spell of dreadful violence and bloodshed.  There was clear evidence at the trial, as was pointed out to us by Miss Poulet this morning, that a large number of people were involved in the turbulence which occurred at that time of the evening and furthermore that the two defendants were not the only ones who were armed.  That is clear, apart from anything else, by the reason of the fact that they each sustained significant injuries requiring hospital treatment for which the evidence offered no explanation.
4.	However, six members of the Rooney family did sustain serious injuries, hence the six counts in the indictment.  It was the prosecution case that the wounds which they sustained were inflicted by the appellant and his co-accused, Collins.
5.	Collins was convicted of only one offence, namely count 1.
6.	In sequence, the first of the offences of which the appellant was convicted seems to have been count 5. That was an attack on John Rooney Senior, outside the hotel. There were four witnesses who said that they saw that attack.  For present purposes the details of the attack are of really little importance.
7.	There was evidence to suggest that the co-accused was involved in that attack but, as we have already indicated, he was not convicted of that offence.
8.	The next attack in sequence was an attack in which the victim was John Rooney, the nephew of the victim in relation to the first attack. He claimed that he was trying to pick up his uncle when he himself was hit, according to the prosecution, by the appellant.  Two witnesses said they saw that attack.
9.	The next victim was Martin Rooney, who was the victim of count 1. He identified the co-accused, Collins, as an assailant and that was the count of which Collins was convicted.  But the prosecution case was that the appellant was also there and there were seven witnesses who were able to give evidence in relation to that particular attack.
10.	Count 2 concerned an attack on Patrick Rooney Senior, who said that he knew the appellant and his co-accused and their wives from his visits to the Aborfield caravan site, although he did not in fact live there. He tried to help Martin Rooney (the victim of count 1) and was, he said, attacked by the appellant.  Two witnesses gave evidence saying they saw that attack on Patrick Rooney Senior.
11.	The final attack, in sequence, was the subject matter of count 3, where Patrick Sheridan was the victim.  He later identified the appellant as his assailant and two others said they saw that attack on Patrick Sheridan involving the appellant.  Eventually the appellant was driven away in a car by his wife, and Collins made his way to the scene in another way.
12.	On 29th June 2001, some 6 days later, the appellant was arrested. He admitted being at the reception and said he had been invited and that he was attacked and stabbed by members of the extended Rooney family. He did his best in effect to defend himself and that was how he came to sustain his injuries and inflict perhaps injuries on others.  He denied using any weapons.  He actually denied causing any injury.  He agreed to go on an identification parade, but the police officer whose duty it was to decide whether such a parade was practicable decided it would not be practicable because of the size and shape of both the appellant and, in particular, Collins.  So the officer decided that rather than attempt to assemble others to constitute an identification parade, or to take part in a group identification, he should set in motion what is known as the VIPER procedure for identification.  That involved the use of a database with some 5,500 innocent files. On this occasion 18 of those were selected which were broadly similar in appearance to this appellant and those selected were discussed with the solicitors acting on his behalf, who it is important to say did want there to be a proper identification parade of the conventional type. Those 18 which had been selected were narrowed thus with the solicitor's assistance to a field of eight. That eight were compiled into a video film, together with the video clip obtained in relation to the appellant himself, and it was that video film which each of those asked to attempt an identification was invited to see.  It involved them looking in relation to each of the people who were on the video film at a full frontal head and shoulders view, a view of the person concerned turned to the right and a view turned to the left.
13.	At the trial the appellant and Collins gave evidence. Their evidence was broadly in line with what they had said at interview.
14.	Objection was taken at the trial, at the very outset, to the admission of the identification evidence, obtained by means of the VIPER procedure.  The procedure had been carried out about 3 months after the incident itself and at that time the appellant did have a significant scar still visible upon his neck.  The judge ruled that the evidence was admissible.  The grounds of appeal which we have to consider are, first of all, that the judge's ruling as to admissibility was mistaken. Secondly, that the VIPER procedure, as it was carried out, had significant shortcomings, and thirdly, that the judge dealt in an unsatisfactory way with that aspect of the case when he came to sum-up.
15.	As the judge recognised, there was no issue as to the presence of the appellant and Collins at the scene, but there was a serious issues as to what they did. Code D of the Code of Practice which was then in force did require that when identification was in issue an identification parade shall be held, if the suspect consents to such an identification.
16.	There are circumstances in which such a parade need not be held and paragraph 2.4 of the Code deals with one such circumstances.  It reads thus: 
"A parade need not be held if the identification officer considers that, whether by reason of the unusual appearance of the suspect, or for some other reason, it would not be practicable to assemble sufficient people who resembled him to make a parade fair." 
17.	Inspector Buckingham decided it would be, as we have already indicated, too difficult to obtain comparables, especially in relation to Collins.  The judge, at this trial, decided that the officer had reached that conclusion too hastily.  The officer did not, as we have already indicated, attempt any group identification, which on the face of it would not necessarily have involved obtaining comparables.  He moved straight to the video identification carried out by Inspector Hill in accordance with the VIPER procedure.
18.	The judge found, when the matter was placed before him for a ruling, that the procedure which had been carried out was fair.  Miss Poulet submits that he should not have so found for two principal reasons.  First of all, the appellant had a scar on the left side of his neck inflicted during the events of 23rd June, but the judge did have the benefit, which we have not, of viewing the video film and his conclusion in relation to that scar was that it was "not particularly noticeable".  To some extent it was not particularly noticeable because the suspect (this appellant) as the judge put it "possibly as a result of being conscious of it, does not turn his head fully to the right in the course of the video and thereby does not indicate to the fullest extent the nature of the scar on the left."
19.	Miss Poulet makes the obvious point that that of itself could constitute a difference between this particular man, as seen on the video film and the others who are represented thereon.  It highlighted something about him which was not the same as the others and which may have assisted those who were viewing the video film to identify him.
20.	The second respect in which Miss Poulet submits that the procedure which was carried out to some extent was unfair was that there was insufficient control, she would say, of the witnesses who took part in the VIPER procedure.  After a witness had identified or attempted to identify, from the film, that witness then went into a separate room where an officer remained with them.  But after a time some, at least, of them were released. Meanwhile others were waiting to attempt identification.  Two of those waiting to attempt identification did receive incoming calls on mobile telephones.  One of these calls, for present purposes is, for the reasons which we need not elaborate, irrelevant.  But the other was made to Patrick Sheridan, who received a call at 1.49, some 11 minutes after James Nolan, who had previously identified both defendants by looking at the video film had been released.  There was before the judge no evidence whatsoever to suggest that the call which Patrick Sheridan received was from James Nolan and it was plainly, on the face of it, a very brief call indeed, because Inspector Buckingham was present when Patrick Sheridan received that call and Patrick Sheridan advised the caller to ring off and ring back later.  In those circumstances, Mr Denniss, on behalf of the Crown, submits that the judge was fully entitled to come to the conclusion that, in reality, no information could have been imparted to Patrick Sheridan in that very brief space of time.  Nevertheless, that is the second of the objections raised by Miss Poulet in relation to the conduct of the VIPER procedure on this occasion.
21.	It seems to us that two of the objections which are raised are not in fact matters of any substance.  It is impossible to come to the conclusion that the scar constituted a serious impediment, having regard to the finding of fact made by the judge in relation to the obviousness or lack of obviousness of that scar.  As to the mobile telephone call, the overwhelming probability seems to be that, first of all, it did not come from James Nolan and, even if it had done, no information could possibly in the time available have been imparted which would have assisted Patrick Sheridan in any way.  In those circumstances, it seems to us that no valid criticism can be made of the actual conduct of the VIPER procedure and the judge was right to find as he did that there was no unfairness demonstrated.
22.	Miss Poulet submits that the appellant and his co-accused and their wives were well-known to some of the guests at this reception because they lived at the same site at Arborfield and had done so for years. But other guests did not know the appellant and Collins and their wives so well, because either they had never been to Arborfield or they had only been there occasionally.  From the point of view of the defence, that was of some significance because it was those who did not know them so well who might or might not be able to identify the appellant as having taken part in some particular part of this evening's activities.
23.	Accordingly, she submits that the identification evidence in this case was of some real significance.  When the judge came to deal with it in his summing-up, he dealt with it at two separate places.  First of all, at the very beginning of his summing-up, he dealt with the admission of the VIPER procedure identification.  He said this:
"I ruled as a matter of law that in taking the decision prematurely, [that is the decision not to conduct an identification parade] as I found that he did, the police had acted in breach of Code D of the Code of Practice but I also ruled that in spite of that breach it was not unfair to admit such identification evidence as there was which had been obtained by way of the video procedure and I took that decision having regard to the fact that once the decision had been taken to identify by video that video procedure was carried out properly.  The importance and weight to be attached to the identification evidence is a matter for you to consider bearing in mind warnings which I shall give you when I come to give you the appropriate direction with regard to how you approach video evidence generally." 
In that passage the two phrases to which Miss Poulet invites our attention are the phrase "it was not unfair to admit such identification" and the judge's observation that the video procedure was carried out properly.
24.	Later on, at page 50, as he had envisaged, the learned judge returned to the question of identification evidence in general.  There he explained, first of all, why an identification parade could be considered to be a first option.  It would, for example, in the context of this particular case, have made it much easier for the appellant to disguise his scar.  It would have revealed other visual prompts which might assist the potential identifier to make an appropriate identification or not to make an inappropriate identification, because they would, for example, be able to see the height and the build and perhaps gain more impression of the age of the people they are looking at than would be possible when examining a video film.
25.	But then the learned judge said this:
"But the video procedure of course has got certain aspects to it which a conventional parade does not have and I don't mean to say I am trying to go behind the fact that the conventional parade is the first option.  It is but of course as far as the video is concerned you have the ability of a witness to look without being immediately confronted by the suspect, just to look at the video clips, for as long as that particular witness wants to and you know from the procedure by which the comparables are chosen, from the evidence given to you by Inspector Hill, that whereas in the conventional procedure the police arrange the parade, so far as the video is concerned and the choice of comparables that is the choice made by the defendant and/or his legal representative." 
26.	Miss Poulet submits that, at that point, the learned judge was perhaps improperly bolstering the reliability of the video procedure which was very much the second best option adopted in the present case.  But, having made that observation which, as Mr Denniss pointed out, was really only the other side of the coin, so far as the procedure was concerned, the learned judge then went on to set out, with considerable care, the need for caution in relation to identification evidence as a whole.
27.	Miss Poulet submits that the evidence which she contends should have been excluded altogether or, if it was admitted, should have been the subject of even more stringent qualifications than it was, was she submitted of significance for the reason which we have already indicated, namely that in some cases the identification evidence came from those who knew the appellant not very well.  Martin Rooney, who was the subject matter of count 1, came from Wales together with his wife and son and they all identified with the assistance of the video film.  But, of course, there were other witnesses in relation to that charge who did not have any difficulty in knowing who it was whom they were identifying.
28.	Count 2 concerned Patrick Rooney. He was normally based at Wapse Wood and he was, as Miss Poulet pointed out, extremely intoxicated on the evening when the violence occurred.  He picked out the appellant on the video film but the other two who claimed to observe the violence against him, namely his son Patrick and Danny Rooney, said that they did know the attacker to be the appellant.
29.	Count 3 concerned Patrick Sheridan.  He was able to pick out the appellant.  That was the Patrick Sheridan who received the incoming mobile telephone call.  But in relation to that count also there was evidence from Martin Rooney who knew the appellant.
30.	So far as counts 5 and 6 are concerned, it is common ground that there was nothing in the identification procedure which assisted the Crown in relation to those two counts.  But, Miss Poulet submits, if the jury had come to the conclusion that there were difficulties in relation to counts 1, 2 and 3 they might have taken a different view, so far as counts 5 and 6 are concerned.
31.	Mr Denniss' submission is that in reality the approach adopted by the learned judge was impeccable. He did find a breach of the code in the way that we have indicated. He then applied his mind properly to the question whether, under section 78 of the Police and Criminal Evidence Act 1984, it would be unfair to admit the video identification evidence which had in fact been gathered together.  He had regard to the scar which he specifically addressed.  He also considered the extent to which this appellant turned his head in order to conceal or attempt to conceal that scar.  He therefore had no difficulty in being alive to the criticisms which could be made in relation to the conduct of that identification parade. He specifically addressed the question of the mobile telephones and the extent to which, if at all, it should cast doubt on the procedure as a whole.  In those circumstances, he came to a proper conclusion that the evidence should in fact be admitted.  It is therefore submitted by the Crown that that part of the judge's ruling is incapable of being attacked in this Court.  With that conclusion, we agree.
32.	Mr Denniss goes on to submit that, when the learned judge came to sum-up, the way in which he dealt with these matters was itself entirely appropriate and indeed entirely in line with the guidance given by the House of Lords in R v Forbes [2001] 1 AC 473. It was inevitably necessary for the learned judge to indicate what in reality had happened.  That there had been no identification parade, for reasons which he considered to be inadequate, that there had been a video identification procedure the results of which he had ruled to be admissible.  In giving that indication, he said nothing which could seriously be regarded as infringing the rights of the appellant.
33.	Finally, Mr Denniss invited us to have regard to the structure of this prosecution as a whole.  As he pointed out, the defence case was that the appellant had not been in any way aggressive.  He had merely acted in self-defence.  He had not been armed.  That case was clearly rejected by the jury and there was ample evidence on which the jury could proceed in relation to each of the counts where a conviction was recorded, if one takes count 5 as an example.  There were three eyewitnesses, each of whom knew the appellant, who were able to describe the type of weapon being wielded, a razor like knife and the way in which it was wielded.  The evidence which they gave was entirely consistent with the evidence to be obtained from examination of the results of the injury.  Similarly, in count 6, two witnesses were able to describe the manner of the attack in a way which fitted the injuries which were sustained.
34.	So far as counts 1, 2 and 3 are concerned, both Patrick Rooney and Patrick Sheridan had some knowledge of the appellant prior to the events of the June evening. That of course had some impact upon the extent to which their evidence, when identifying him from a video film, could be regarded as being of great weight and the learned judge properly drew the attention of the jury to that.  But it also was an indication that when they made the identification they were not mistaken.  All in all there was an enormous body of evidence in relation to each of the counts to substantiate the conclusions which were reached by the jury.  That seems to us to be correct. In those circumstances, we come to the conclusion that this appeal against conviction must be dismissed.
35.	We turn now to the question of sentence.  When the learned judge came to pass sentence originally, he arrived at a sentence which involved the use of the power to pass sentences which are longer than normal in certain circumstances.  On reflection, having had the benefit of further submissions from counsel, he came to the conclusion that that power could not be exercised in a situation such as this.  Because, in this situation, he was dealing with the question of how to fix the tariff, as it was then referred to, or minimum term, in relation to a life sentence.  Having had the assistance of counsel in that regard, he resentenced later in the day and his resentencing remarks read thus:
"The commensurate sentence which I would have passed was one of ten years' imprisonment, and the reason why I have reduced the suspended sentence [because this appellant was subject to a suspended sentence in respect of domestic burglary of 2 years] from two years to one year was having regard to the principle of totality."  
The learned judge was there referring to what earlier happened in the day: 
"I do not now feel, having regard to that principle, any need to reduce that sentence.  So in relation to each of the counts may I say for the purpose of the record that there are life-sentences on each of the counts upon which you were convicted, those sentences will be concurrent. I shall say that the determinate sentence should be 12 years:  that is the ten plus two [he is referring there to activating the suspended sentence] that you will serve six years, being half of that, and account will be taken, as it would have been in any event, of the ten months less two days that you have served in custody on remand." 
36.	Miss Poulet submits that in fact the learned judge, in the circumstances of this case, did not adopt an appropriate approach to the question of activating the suspended sentence and the effect that that would have upon the life sentences and the tariff in relation thereto.  There is no doubt, to our minds, that the learned judge was right to activate the suspended sentence to be served concurrently with the life sentences.  In principle, and it applies in this case, it is impossible to order that such a sentence be served consecutively to a life sentence.  He then had to consider how to set the tariff.  As to that, our attention has been invited to section 82(A) of the Powers of Criminal Courts (Sentencing) Act.  Subsection (3) reads thus: 
"The purpose of his sentence shall be such as the court considers appropriate taking into account: 
(a) the seriousness of the offence or the combination of the offence and one or more offences associated with it." 
For this purpose it is now common ground, and it seems clear to us that the offence which was the subject matter of the suspended sentence is not to be regarded as an offence to be associated with the offences of which this appellant was convicted which had taken place at Caversham.  Accordingly, the learned judge had to set the tariff in relation to the five offences in respect of which he had sentenced this appellant to life imprisonment, without regard to the suspend sentence.
37.	Adopting that approach, he came to the conclusion that the appropriate tariff was one of 5 years' imprisonment.
38.	Mr Denniss has helpfully pointed out to us that there are circumstances where a sentencing judge may come to the conclusion that he or she should not be fettered by that particular approach.  That was explored in submissions made to this Court in R v Szczerba [2002] 2 Cr App R(S) 387, in particular, at page 395.  We have had the benefit of looking not only at that paragraph, but, of course, also considering the circumstances of this particular case.  It seems to us that this is not a case in which we should interfere with the general approach adopted by the learned sentencing judge. The circumstances were here not so exceptional as to cause the sentencing judge to move from the 50% approach towards or up to the approach of two-thirds which was suggested as a possibility in that case.
39.	Accordingly, as it seems to us, in this particular case, the conclusion at which the learned judge should have arrived was that the figure set would be one of 5 years' imprisonment, but from that there would fall to be deducted, as he indicated, the 10 months less two days which had already been served in custody on remand, so that the resultant figure, being the minimum period to be served by the appellant before any question of his release can be considered by the Parole Board, is 4 years and 2 months.  To that extent this appeal is allowed.