No: 2004/6239/D4 
Neutral Citation Number: [2005] EWCA Crim 3564
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Wednesday, 14 December 2005
 
B E F O R E:

LORD JUSTICE DYSON 

MR JUSTICE TOMLINSON

MR JUSTICE ANDREW SMITH

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R E G I N A 

-v- 

KELLY GRAY
 
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MR M GATLEY appeared on behalf of the APPELLANT
MR J DAWSON appeared on behalf of the CROWN
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J U D G M E N T
1.	LORD JUSTICE DYSON:  On 27th October 2004 in the Inner London Crown Court, the appellant was convicted of supplying a class A controlled drug, cocaine (count 1) and wounding with intent to do grievous bodily harm (count 2).  He was sentenced to five years' imprisonment on each count to run consecutively.  He appeals against conviction by limited leave of the full court.  
2.	The facts are these.  In Brixton in the early hours of 24th November 2003, a Mr Orchard sought to buy cannabis from the assailant who he described as being a black male in his thirties, five foot ten inches tall and short black "afro".  The two men, together with one or more of the assailant's associates, entered the foyer of a block of flats where the assailant supplied a cellophane wrapped rock of crack cocaine to the victim.  That was the subject of count 1.  The victim returned it but the assailant insisted that he have it, placed it in the victim's pocket and demanded payment.  Mr Orchard told him to "fuck off".  The assailant then produced a Swiss Army knife, opened the blade and slashed Mr Orchard from the corner of his mouth to his ear.  That was the subject of count 2.  A fight ensued which lasted for almost 10 minutes.  The pair spent a significant amount of time fighting on the floor.  
3.	The events were captured on CCTV.  The quality of the footage was insufficient to identify the assailant but it did show that he was wearing a black woolly hat and a distinctive jacket.  Eventually the two men parted and the assailant disappeared.  Mr Orchard flagged down a passing police car, reported the incident and gave the wrap to them.  He told the police that he was sure that he would recognise the assailant again.
4.	Mr Orchard's jacket and the cellophane wrap were submitted for forensic analysis.  A mixed DNA profile was obtained from an area of bloodstaining on the underside of the right sleeve of the jacket.  The major component matched Mr Orchard's profile.  The minor component consisted of components matching the corresponding components in the appellant's profile.  On analysis of the wrap a profile matching Mr Orchard's was found, together with a trace of DNA with components matching corresponding components in the appellant's DNA.  
5.	A "hit" on the DNA database led to the appellant's arrest in April 2004.  He was of similar general appearance to the assailant.  His address was searched and two woolly hats and a Swiss Army knife were found, but no coat similar to the assailant's and no drug dealing paraphernalia.  
6.	The evidential test results were as follows.  The DNA from the jacket which contained components matching the appellant's DNA yielded a match probability of approximately one in 81 million.  In relation to the trace on the wrap the match probability was approximately 1 in 3,800.  The appellant, who had already been interviewed and made no comment, was interviewed again and for a second time made no comment.  During the interview the officer in the case, DC Tutty, put to the appellant the chances of the DNA on the jacket coming from someone else were one in 81 million and that one could "get better odds on winning the lottery than getting somebody else that matches that DNA."  We shall return to the issue of DNA shortly.  
7.	On 10th May Mr Orchard viewed a video identification parade.  The parade was composed of the still images of nine individuals.  The procedure was itself recorded on video.  The appellant's image was at position 5.  Mr Orchard picked out a volunteer at position 9 but before doing so he showed an interest in the image of the appellant.  He had viewed the identification parade twice.  He asked to see images of individuals 3, 5 and 9 again.  He then asked to see the whole parade again and then asked to see the images of the individuals at 5 and 9 again and asked whether those images could be frozen.  Reading from a police case summary counsel for the prosecution adduced from the officer in the case at the trial that the appellant had not kept two appointments with the police for his image to be captured.  The officer had therefore used a still photographic image of the appellant.  
8.	The appellant gave evidence at the trial.  He denied being the assailant.  He could not recall where he had been at the time but it was unlikely he would have been out that late.  It was a Monday morning and he was working for Connex with a 6.00am start.  He had not been able to produce any proof of that employment.  He knew Brixton well and frequented the bars and pubs which Mr Orchard had visited on the night of the incident.  He had been to the flats where the attack had occurred on more than one occasion.  He had a large and local extended family.  If the DNA was in fact his he could only speculate about how it had come to be there.  That, he said, was why he had made no comment at interview.
9.	We now turn to the grounds of appeal on which leave to appeal has been given.  These are five in number but they fall into two broad categories:  
A.  The judge erred in allowing the Crown to play to the jury a video recording of the identification procedure where the victim had shown an interest in the appellant's image but had then gone on to pick out a volunteer.  
B.  The judge compounded the error in his summing-up by giving directions which elevated the non-identification to the status of an identification and failed to mention points relating to the identification evidence which favoured the defence.  
C.  He further compounded the unfairness by summing-up in a way which might have left the jury with the impression, contrary to the evidence, that the appellant had deliberately frustrated the identification procedures.  
D.  The judge erred in allowing the officer in the case to express the "prosecutor's fallacy" identified in Doheny and Adams [1997] 1 Cr.App.R 369 in relation to the DNA evidence and compounded the error by repeating that evidence uncritically in the summing-up.  
E.  He further compounded the error by failing to give the directions held to be essential in Doheny explaining the significance of the DNA results and he misstated and failed adequately to sum up the points relating to that evidence which favoured the defence. 
Ground A  
10.	An objection was taken on behalf of the defence to admission of the evidence as to the identification procedure.  The defence position was that they wished the jury to know the bald fact that Mr Orchard had failed to identify the appellant and had identified a volunteer on the parade and to know nothing more about the identification parade.  The judge ruled that the prosecution should be permitted to adduce the video of the identification parade apparently without any explanation from Mr Orchard.  Reference was made by the judge to the decision of this court in Barry Michael George [2002] EWCA Crim. 1923.  At paragraph 35, the court said: 
"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." 
11.	Mr Gatley submits that the evidence of the identification parade, and in particular the manner in which Mr Orchard looked long and hard at the person at position 5, namely the appellant, was either inadmissible as being irrelevant or should have been excluded by the judge under section 78 of the Police and Criminal Evidence Act on the grounds that its prejudicial effect substantially outweighed its probative value.  He submits that the guidance given in paragraph 35 of the George case must be understood in the context of that case.  In that case the court was confronted with a large number of witnesses who supplied good and consistent descriptions of the killer, all of which broadly matched the defendant as he then appeared.  Moreover, a large number of them nearly identified the defendant as the killer and had done so despite the fact that he had attempted to disguise his appearance by growing a beard.  Mr Gatley submits that it is clear that the court justified the admission of the non and partial identifications because of the "underlying unity of description" and "general consistency in the identification evidence".  He submits that it was that unity which enabled the prosecution in the George case to argue that the consequence of excluding the evidence might be that a large number of witnesses may be ninety per cent sure but without being positive and yet no evidence of this would be admitted.  He submits that none of this has any application in a one-witness case and that to admit the evidence, as occurred in the present case, was to take a dangerous course.
12.	In our judgment what is said by the court in paragraph 35 is clearly intended to be of general application and should be understood as not being limited to cases where a large number of witnesses nearly identify the defendant as the offender.  The judge was entitled to rely in particular on the first of the two situations discussed at paragraph 35 as justifying admitting the evidence in the present case.  We would go further and say that since the defence wanted the jury to know part of what happened at the identification parade, the judge was entirely correct to rule that the jury should have the full picture and know precisely what did happen.  The position might well have been different if the defence had wanted the jury to know nothing whatsoever about the identification parade.  If the judge had allowed the jury only to know the bald fact that Mr Orchard had failed to identify the appellant then they would have had an incomplete and to some extent a misleading picture of what occurred.  We therefore reject ground A. 
Ground B 
13.	Mr Gatley submits that the particular danger highlighted in the George case was that the non-identification might be elevated to the status of an identification.  He submits that this is precisely what happened in the present case because the judge gave an unmodified Turnbull direction in his summing-up.  
14.	It is necessary therefore to turn to the summing-up.  Between pages 13F and 14C, the judge reminded the jury of what they had seen taking place at the identification procedure.  He then went on as follows at 14C: 
"It is for you to assess what weight to attach to that, but you do so only in addition to the other evidence.  Why do I say 'in addition'?  Because, on its own, that procedure would not be sufficient for a conviction.  On its own it could not be, and why is that?  Well, because Mr Orchard did not identify the defendant, so if that were the only evidence, you would not convict on it.  So, it cannot support a conviction if it were the only evidence, but you may give it weight in the context of other supporting evidence, including -- and this is important -- Mr Orchard's description of his attacker, and I will remind you of what he said when he gave that description.  
But I must warn you of the special need for caution before placing reliance on any evidence of visual identification.  Witnesses may be convincing but can still be mistaken about visual identification.  So you should look carefully at the circumstances in which Mr Orchard observed the man attacking him.  Ask yourselves how long did he have the person under observation?  At what distance?  In what light?  Did anything interfere with that observation?  Had he ever seen that person before?  How long was it between the original observation and the identification to the police?  Is there any marked difference between the description given by the witness to the police when he was first seen by them and the appearance of the defendant?  
So, before placing any weight on visual identification -- and this applies to all cases where there has been identification in difficult circumstances -- a jury must be warned of those dangers and must be told to look carefully at the circumstances giving rise to the identification.  In this case you need to exercise even greater caution in placing reliance on this evidence because, of course, Mr Orchard did not, in the end, identify the defendant."  
Mr Gatley makes the point that in the George case the Turnbull direction had to be given because one of the witnesses there did identify the defendant, but he submits it was not appropriate in the present case.  He draws our attention to the fact that the word "identification" was repeated by the judge no fewer than six times in the passage which we have just read and submits that applying a direction about identification to non-identification is very likely to create the danger highlighted in the George case.  He has a separate point that the judge failed to remind the jury of potentially important features of the case which were favourable to the appellant which is a requirement of Turnbull: since the observation conditions had been ideal when the pair were not fighting and the appellant was of a distinctive appearance with facial scarring and a severed ear, Mr Orchard's failure to pick him out might be thought to be particularly significant.
15.	We go this far with Mr Gatley.  We accept that without modification the Turnbull direction is inapt in a case where there has been no identification.  It is clear from the exchanges that took place prior to his ruling on this matter that the judge was somewhat exercised about what to do about Turnbull.  It seems to us that some modification of the standard Turnbull direction was called for in the present case.  But the critical point is that the judge did emphasise to the jury that they had to take particular care to place any reliance on the fact that Mr Orchard showed great interest in the appellant when the identification procedure was conducted.  He reminded them in the early part of the passage we have read that the identification procedure would not be sufficient to found a conviction on its own because Mr Orchard did not identify the defendant.  Even more importantly, after he had given the standard Turnbull direction he said: "You need to exercise even greater caution in placing reliance on this evidence because of course Mr Orchard did not in the end identify the defendant".  
16.	In those circumstances, although, as we have said, we think that an unmodified Turnbull direction was undesirable, we do not consider that the danger to which Mr Gatley refers of elevating a non-identification case into the status of an identification case existed in the present case.  This is because the judge on two occasions reminded the jury that Mr Orchard had in fact not identified the appellant and that they required therefore to exercise very great caution before placing any reliance on the identification procedures at all.
17.	So far as the subsidiary point is concerned, it is true that the judge did not in terms mention to the jury when dealing with this part of the case that, notwithstanding the striking features of the appellant's appearance - the severed ear and the scarring, Mr Orchard had failed to identify him.  Nor did he remind the jury that when giving the description of his assailant to the police Mr Orchard did not refer to those features.  He did, however, in the course of the Turnbull direction, ask the jury to consider whether there was any marked difference between the description given by Mr Orchard to the police when he was first seen by them and the appearance of the appellant.  Mr Gatley accepts that in the course of his speech to the jury he drew their attention to the failure of Mr Orchard to include these features in his description.  The jury would have been bound to have had their minds directed to that aspect of Mr Gatley's speech by the words used by the judge.  We do not consider that there has been any material omission in this part of the judge's summing-up.
18.	We turn to finally on the identification part of the case to ground C.  The complaint here is that the judge chose to remind the jury twice that the appellant had failed to keep two appointments for his image to be captured for the identification procedure.  He did this, it is submitted, in such a way as to create a risk that the jury would be left with the impression, not supported by the facts, that the appellant had deliberately acted so as to frustrate the identification procedures by forcing the police to use less advantageous images.  Mr Gatley submits that as a result significant and unwarranted prejudice was occasioned.  
19.	In the first of the two passages the judge simply reminded the jury of the fact that the appellant had not turned up to either of the two appointments and went on to explain that that was the reason why it was not possible to employ one of the more usual procedures for identification.  In the second passage, the judge said:
"It later emerged that on one occasion he [the appellant] said he had been delayed at the DSS and on the second occasion he had not been feeling well." 
If, which we doubt, there was any implied criticism of the appellant in the first of these two passages it certainly was not present in the second passage when the judge made it clear that the appellant had an excuse for not attending either of the two appointments.  We reject ground C.
20.	We now turn to the DNA aspects of the case.  Mr Gatley submits that there was a significant perpetration of the so-called prosecutor's fallacy in this case.  That fallacy consists in wrongly characterising the match probability, that is to say the probability of obtaining a DNA match if the crime scene sample came from someone other than or unrelated to the defendant as the probability that the defendant left the crime scene sample.  He identifies the following places where this fallacy was committed.  First, in the evidence-in-chief of Miss Doole, who was the forensic scientist called on behalf of the Crown, at page 10B of the transcript she was asked this question: 
"I think, just to take it briefly, that there was about a one in a billion, ie a thousand million, chance of it being someone other than him? 
A.  Of getting a matching DNA profile, yes." 
The next passage relied upon is at page 37, in re-examination:  
"Q.  The sample on the jacket that you looked at and found a profile which matched the defendant's profile -- one in 81 million -- was a sample that was part of the blood, was it not?  
A.  It came from that sample of staining." 
Next, there is complaint about the passage in the interview, to which we have already referred, which the judge mentioned in his summing-up.  The passage complained of was in the course of the interview by the police officer of the appellant on 21st May.  The appellant was questioned about the fact that matching DNA was found on the jacket and the cellophane wrap.  He made no comment.  He was then given a special warning and was asked to account for the presence of the matching DNA and again said "no comment".  He was told that an adverse inference could be drawn by a court as a result of that and he made no comment and he was represented by a solicitor.  Then the officer explained to the appellant that the chances of it not being him was one in 81 million but still no comment.  It was that last part of what the officer said which, on the face of it, was a plain commission of the prosecutor's fallacy.  It is also said that there are other passages in the summing-up where the judge made the some error.  At page 12B to C the judge was reviewing in summary the DNA evidence relied upon by the Crown and he said this:
"Individually -- as I will remind you when I come to this evidence -- the odds on that matching DNA not coming from the defendant or someone related to him are, on the evidence you have heard, 81 million to one in the case of the jacket and 3,800 to one in the case of the wrapper, and that is looking at those two items individually." 
The final passage complained of is at page 26C to D, where the judge said:
"Blood was found on the clingfilm wrap and the DNA profile was obtained that matches the DNA profile of Leo Orchard.  Now, perhaps this is not the most important detail, but the probability of that blood coming from someone other than Leo Orchard or unrelated to Leo Orchard is of the order of one in a billion, that is one in a thousand million." 
Those passages cannot be viewed in isolation.  First of all, Miss Doole, in earlier passages of her evidence, had given evidence which in our judgment plainly satisfied orthodoxy and did not fall foul of the prosecutor's fallacy.  Thus at page 8 she was asked:  
"Did you then do a calculation?
A.  Yes.  The probability of obtaining matching DNA profiles, if the minor component had originated from someone other than and unrelated to Kelly Gray is estimated to be approximately one in 81 million." 
At page 9E she was asked:  
"Q.  So this is a conservative estimate that someone other than or unrelated to the defendant is approximately -- the chances of finding that profile is approximately one in 81 million?  
A.  Of getting that DNA profile, yes." 
And then at 10C she was asked about the cellophane wrap:  
"Q.  What else was there?  
A.  A trace of DNA from another individual was also detected, and the components in this trace matched the corresponding components in Kelly Gray's DNA profile.  The probability of obtaining matching DNA profiles, if the trace of DNA had originated from someone other than and unrelated to Kelly Gray, is estimated to be approximately one in 3,800." 
It was this orthodox evidence which the judge reminded the jury about in his summing-up in a passage starting at 25G:  
"She says the probability of obtaining matching DNA profiles if the minor component had originated from someone other than and unrelated to the defendant is estimated to be approximately one in 81 million." 
And then a little later at page 26E:
"... a trace of DNA from another individual was also detected and the components from this trace matched the corresponding components in the defendant's DNA profile.  The probability of obtaining matching DNA profiles if the trace of DNA had originated from someone other than and unrelated to the defendant was estimated to be approximately one in 3,800." 
Mr Gatley acknowledges that in these passages the judge correctly represented the evidence given by Miss Doole and that in these passages there is no commission of the prosecutor's fallacy.  But he submits that the passages on which he relies where the fallacy was committed or at any rate may have been committed were sufficiently important that these correct passages were not sufficient to overcome the consequences of the fallacy in those other passages.
21.	We would say that even if the judge did err in not excluding the evidence of which complaint is made (and it is difficult to see for example how the judge could have excluded the evidence of Miss Doole that was given in the way that it was given) but even if there were shortcomings in the evidence and the summing-up which were not sufficiently made good by the passages to which we have referred, we do not consider that these shortcomings made this conviction unsafe.  In the case of Doheny itself at page 378G the court said:
"Given what was then the uncontroverted expert evidence that the random occurrence ratio of the DNA profile shared by the Appellant and the crime stain was 1 in 40 million, we have no doubt that the Jury would have reached the same verdict if directed in this way. The more remote the random occurrence ratio, the less significant will be the adoption of the 'Prosecutor's fallacy', until the point is reached where that fallacy does not significantly misrepresent the import of the DNA evidence. Such was the position on the figures advanced by Mr Davie." 
22.	The figure of one to 81 million is a very striking figure indeed and in our judgment, for that a reason alone, any shortcomings in relation to the prosecutor's fallacy did not make these convictions unsafe.  We have no doubt that the jury would have reached the same verdicts if the evidence and the directions had not in any way been infected by the prosecutor's fallacy.  
23.	Mr Gatley seeks to distinguish a case such as Doheny on the basis that in that case the source of the DNA was semen.  The source of the DNA in the present case was unknown.  The possibility of accidental transfer could not be ruled out.  We acknowledge that fact but nevertheless the random occurrence ratio of one to 81 million is so remote that even taking account of the possibility of accidental transfer we are satisfied that the jury would have reached the same verdict in any event.  
24.	There are further reasons why we are satisfied that these convictions are safe.  In addition to the matching DNA sample on the jacket there was the DNA sample found on the cellophane wrap.  It is true that the random occurrence ratio was much less remote, but Mr Gatley accepts that the possibility of accidental transfer here is difficult to envisage.  The existence of two DNA samples, admittedly with strikingly different match ratios, immeasurably strengthens the case against the appellant.  In addition to that the appellant had no explanation for the DNA.  There was the further fact that he was found in possession of a Swiss Army knife and two woolly hats and his evidence that he could not have committed these crimes because he was working for Connex at the time in question was not supported by any material.  If he had indeed been working for Connex at the time one would have expected it to have been possible for him to adduce evidence to support that part of his case.  
25.	We should have said, dealing specifically with ground E, that Mr Gatley complains that the judge failed adequately to sum up parts of Miss Doole's evidence about the mechanics of accidental transfer and submits that this was a particularly serious omission because the circumstances of the incident meant that the possibility of accidental transfer was not fanciful and was a legitimate issue for the jury to decide.  In other words he submits that there was a material omission in the summing-up.  
26.	The judge was not of course obliged to sum up every aspect of the evidence in the case.  He gave the standard direction to the jury that he would not sum up all the evidence and that if he omitted parts which they regarded as important then they should give such weight to those parts as they thought fit.  
27.	For the reasons that we have already mentioned we consider that the case against this appellant was overwhelming.  We do not regard the failure to remind the jury of what Miss Doole had said about the mechanics of different kinds of accidental transfer was a material omission or that it in any way affects the safety of these verdicts.  Accordingly, we dismiss this appeal.