Case No. 0505928 D3 
Neutral Citation Number: [2006] EWCA Crim 1605
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Thursday, 15th June 2006
 
B E F O R E:

LORD JUSTICE MOORE‑BICK 

MR JUSTICE BURTON 
 
SIR RICHARD CURTIS 

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R E G I N A 

‑v‑ 

KERRY LEY
 
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MR J BENNATHAN appeared on behalf of the APPLICANT
 
J U D G M E N T
LORD JUSTICE MOORE-BICK:  

1.	On 14th October 2005 at the Central Criminal Court before HHJ Hawkins QC the applicant was convicted by a majority of 10 to 2 of an offence of aggravated burglary.  His brother, Jason Robinson, also known as Jason Ley, who was tried with him on the same indictment, was acquitted.  On 5th November the appellant was sentenced to seven years' imprisonment.  He now renews his application for leave to appeal against conviction following refusal by the Single Judge. 

2.	In summary, the facts giving rise to the conviction are these.  On 10th May 2005 two men forced their way into a flat occupied by the Costello family, having induced the occupants to open the door by saying that they had with them a child which had been locked out of its home.  Upon opening the door, Mrs Catherine Costello and her daughter, also called Catherine, were pushed aside by a man wearing a stocking over his head.  He pointed a knife at Mr Costello and demanded money. At that stage neither woman had seen a second man enter the flat but very shortly afterwards they saw another man coming out of the younger Catherine Costello's bedroom.  He was wearing a wig as a disguise. Catherine Costello apparently recognised him as the applicant and said to him, "Kerry, how can you do this to my parents?"  The two men then panicked.  The appellant tried to cover his face and they ran out of the flat.  During the course of the burglary a mobile telephone was stolen.

3.	The applicant was interviewed.  He made no comment but said that he had been elsewhere with his girlfriend at the time and therefore was putting forward a case of alibi.  In support of its case that the applicant was one of the men involved in the burglary the Crown relied heavily on the evidence of Catherine Costello that she recognised him as the man who had emerged from her bedroom, having known him as a friend of her sister for the previous four years.  In support of her identification of the applicant the Crown relied on, amongst over things, the reaction of the two men on hearing his name called out.  

4.	At the close of prosecution case counsel for the applicant made a submission of ‘No case to answer’.  The main ground of that application was that the identification by Ms Costello was based on an observation made over a very brief space of time (described by the judge as a fleeting glance) and under unfavourable conditions.  It was said that her evidence should therefore be excluded in accordance with the principles set out in the well‑known case of Turnbull and that without it the case was too weak to be left to the jury.  

5.	Counsel who has appeared for the applicant before us has submitted that the conviction is unsafe for two reasons: first, because the judge should have withdrawn the case from the jury since, in his own view, it was one in which the recognition depended on a fleeting glance under very adverse conditions; secondly, because he should have directed the jury not to convict the applicant unless they were satisfied that there was independent evidence to support her account.  

6.	Our attention has been drawn to the cases of Turnbull (1976) 63 Cr. App. R. 132, Jamel [1993] Crim. L.R. 52 and Fergus (1994) 98 Cr. App. R. 313.  Mr Bennathan, who has appeared on behalf of the applicant this morning, submits that the primary ground upon which this conviction is unsafe is that the judge, having himself formed the conclusion that it would not be safe to leave the case to the jury if it depended solely on the recognition evidence of Ms Costello, failed to direct the jury in positive terms not to convict the applicant unless they were satisfied that there was other reliable evidence independent of Ms Costello which would support her identification.

7.	We would not be minded to give leave to appeal if the only question were whether the judge should have acceded to the submission of ‘No case to answer’, but Mr Bennathan has raised before us this morning an issue which appears not so far to have been clearly decided, namely, whether, when a judge himself reaches the conclusion that evidence of identification would not be satisfactory to support a conviction unless supported by other independent evidence, he should not only direct the jury to examine such other evidence as is available to see whether it does support the identification but should himself direct the jury in terms that, in the absence of any such supporting evidence, they should not convict the defendant.  

8.	In these circumstances we consider that it is appropriate to grant leave to appeal against conviction.  We do not limit the terms of that leave but, for the reasons we have sought to indicate, we would expect that argument will be primarily directed to the second ground of appeal which is covered in paragraphs 25 to 30 of the amended grounds which have been placed before us this morning.