Neutral Citation Number: [2006] EWCA Crim 3063
Case No: 200505928D3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
H.H.J. HAWKINS Q.C.
T20057547
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 07/12/2006
Before:

LORD JUSTICE SCOTT BAKER
MR JUSTICE PENRY-DAVEY
and
HIS HONOUR JUDGE LORAINE-SMITH SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION
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Between:

	R	Respondent	
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	Kerry Ley	Appellant	

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Mr Christopher Badger for the Respondent
Mr Joel Bennathan Q.C. for the Appellant

Hearing dates: 6 November 2006
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REASONS FOR DECISION
Lord Jusitce Scott Baker: 
1.	Kerry Ley, aged 37, appeals with the leave of the Full Court against his conviction before Judge Hawkins Q.C. and a Jury at the Central Criminal Court on 14 October 2005 of aggravated burglary. The conviction was by a majority of 10 to 2; he was subsequently sentenced to 7 years imprisonment.
2.	He was tried jointly with his brother Jason Robinson (also known as Jason Ley) who was acquitted.
The facts.
3.	 In summary, on 10 May 2005 two men forced their way into a flat in Morning Lane in East London having persuaded the occupants to open the door by pretending they were with a lost child. On opening the door Mrs Costello and her daughter Catherine were pushed aside by one of the men who was wearing a stocking mask over his head. He pointed a knife at her and demanded money. The other man was wearing a wig as a disguise. When he emerged from Catherine’s bedroom the wig slipped. Catherine recognised him and said: “Kerry, how can you do this to my parents.” Both men panicked and ran out of the flat. During the burglary a mobile phone was stolen. 
4.	The Crown’s case was that the aggravated burglary was a joint enterprise between the appellant and his brother. The brother entered the property with a knife and the appellant with a gas canister.
5.	The Crown relied on recognition evidence from Catherine. She recognised the appellant as someone she had known for the previous four years which was why she had spoken to him as she did when she recognised him. She recognised the wig worn by him as belonging to his sister Siobhan. A telephone call was made by Siobhan the following day at a time when, on the Crown’s case, she could not have known about the burglary unless she had been told about it by the appellant or his brother.
6.	The defence case was alibi. The appellant and his girlfriend had spent the evening at the hostel where he lived. He remembered the occasion because it was the day after his birthday. His girlfriend supported his alibi. It was said that Catherine’s recognition was mistaken and based on a fleeting glance. Anyone disguised in the way the second man was would have reacted in the way he did when words of apparent recognition were uttered. 
7.	The appellant called the local postmaster who said he had witnessed an argument between the appellant and Sandra Costello, allegedly on the day after the burglary.
8.	Catherine’s evidence was that the burglary occurred about 10.30pm when she and her mother were watching television in the living room. The man with the knife held it to her mother’s throat shouting: “give us the money.” They replied that they did not have any. She and her mother were shouting. Her father, who had been in bed and was suffering from a broken leg, came out of the bedroom and started shouting, too. She put herself between her mother and the man in the stocking mask because she feared for her mother’s safety. She recognised him as Jason Robinson whom she had known for some years. She did not know how the other man had got into her bedroom. She described him as: “tall and skinny” he was smaller than the man with the knife and wearing dark clothing. When he passed her father his hair flew up and his wig slipped. She recognised him as the appellant. His sister was a friend of her sister; she knew him well enough to speak to and had seen him just a few days before. She had an unobstructed view from 10 or 12 feet. She had seen the wig worn by the appellant at his sister’s house. She agreed in cross-examination that she had not seen the second man come into the flat and that the incident had shaken her up. She had tried to give the police the best possible description but had done so after she had dealt with her mother’s hysterics.  She had no doubt it was the appellant. The one of the two she did not really know was Jason. She disagreed when it was put to her that one of the men could have been Darren Ley. She was sure she was not mistaken in her identification. 
9.	Mrs Costello confirmed the second man was wearing a wig or had long hair and that her daughter said: “Kerry, why are you doing this to my mum and dad.” She had not concentrated on identifying the two men as she just wanted to get them out of her flat.
10.	Mr Costello said the second man was wearing a wig with a baseball cap over it. He too heard his daughter’s words to him at which the man put his head down and covered his face with his hands. The two men were then tripping over themselves to get out of the flat. The police arrived two minutes later. The following morning he received a telephone call from Siobhan Ley who wished to speak to his wife. She said her two brothers had been accused of the burglary. He told her his wife would not be interested in speaking to her and she should take her brothers to the police station. About 11am his daughters Michelle and Sandra came to the flat. He told them about the incident. They had not heard about it before. He then went to sleep and was woken by a bang on the door. He answered and a man shouted at him: “if any thing happens to my fucking brothers, I will do you on the street…..you have got it wrong, my brothers did not do anything”. He had not seen the man before and did not think he was one of those involved.
11.	There was no forensic evidence to connect the appellant to the burglary. He made no comment when interviewed, but provided a prepared statement which gave a short account that was broadly consistent with his subsequent evidence. 
12.	The appellant’s submission at the close of the Crown’s case that there was no case to go to the jury was rejected by the judge. When the appellant gave evidence he said he did not know Mr Costello; he did know Mrs Costello but had never spoken to her. Although he knew Catherine Costello he had only spoken to her a few times and did not know her well. He knew her through his sister Siobhan. He said that on 11 May he went to his sister’s house to collect his benefit cheque as it was delivered to her house for safekeeping. He then went to the post office to cash it. When he got there he saw Sandra Costello. As he passed her she shouted abuse at him and said: “how could you do that to my family.” He said he did not know what she was talking about. She swore at him and told him he and his brother had robbed her family at knife-point the night before. She stormed off. He ran after her and asked her to explain but she told him never to speak to her again. He went into the post office and was asked by the postmaster what was happening. He told the postmaster what she was alleging. He cashed his money and then went to Siobhan’s house. He told her what had happened and she phoned the Costellos. Words were exchanged but he did not know what was said.
13.	Jason Robinson gave evidence that he had never been to the Costellos’ flat. He had seen the appellant the day after the alleged robbery and he told him he had seen Sandra Costello at the post office and she had alleged they had robbed her family. 
14.	Siobhan Ley said she knew Sandra Costello well and indeed had been asked to be a godparent to her child. She telephoned Catherine Costello to find out what was happening but she was very rude and put the phone down. She had not spoken to Mr Costello. She remembered an occasion in January 2005 when Catherine Costello and others had been to her house when children and others were playing with a number of wigs.
The appeal. 
15.	The Full Court in granting leave to appeal did not limit the terms of the leave but indicated it expected the argument to be directed primarily to one ground. That ground is that the judge having concluded it would not be safe to leave the case to the jury if it depended solely on the recognition evidence of Catherine Costello should have directed the jury in positive terms not to convict unless they were satisfied there was other reliable evidence independent of Miss Costello which would support her identification. Mr Bennathan Q.C., for the appellant, submits that although this point is not expressly covered in R v Turnbull (1976) 63 CrAppR 132 that case should be understood as imposing a duty on the judge to direct the jury to this effect. 
16.	The first ground of appeal that the judge should not have left the case to the jury was, rightly in our view, not pursued by Mr Bennathan. It is, however, necessary to look at the judge’s ruling because it is the starting point for his main argument. The judge referred to the Turnbull principle that when in the trial judge’s judgment the quality of the identification evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, he should withdraw the case from the jury unless there is other evidence to support the correctness of the identification. He then said of the identifying witness Miss Costello that she had known the appellant for about four years. 
“I knew him well enough to sit down and speak to him; and I had done that on a number of occasions. The last time I had seen him was on the Friday before the incident on the way to college.”
He continued:
“It is accepted that the view that Miss Costello got of the man who would have been wearing a wig was a fleeting glance. Also, it was a limited view of the side of his face, and I have looked at it, as I have been asked to, in the context of the first descriptions and the evidence of other witnesses in the case. It is submitted that I should withdraw the case from the jury.”
Then he went on to record the prosecution’s response that it was a recognition case and there was evidence (i) as to the appellant’s reaction when Miss Costello mentioned his name, putting his hands over his face and trying to leave as quickly as possible (ii) that Miss Costello had seen the wig before at his sister’s house and indeed tried it on and (iii) the phone call the next day from the appellant’s sister. He then said:
“In my view, in spite of the fact that this is a fleeting glance – this is the second defendant (the appellant) – in view of the other evidence I have referred to, it is a fit case for a jury to consider in relation to that defendant.”
17.	The judge, as he was obliged to do had to look at the whole of the evidence at that stage and decide whether there was sufficient evidence against the appellant to leave the case to the jury. That evidence included the three matters of potentially supporting evidence to which we have referred. The judge did not have to make a decision about what he would have done had the evidence been different and the case dependent on Miss Costello’s recognition alone. It is true that the judge’s decision can be read on the basis that he only left the case to the jury because there was independent supporting evidence, but it does not have to be read in that way. It is difficult to speculate on what the judge would have done had the evidence been different. What if any reaction there was from the person identified as Kerry could have been very relevant. 
18.	True it is that the Turnbull principle requires a judge to withdraw the case from the jury when the quality of the identifying evidence is poor. Furthermore, recognition cases are not excluded from that principle. As the Lord Chief Justice pointed out in Turnbull at p.137:
“Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relations and friends are sometimes made.
All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused’s case, the danger of a mistaken identification is lessened, but the poorer the quality the greater the danger.”
19.	There are of course recognition cases and recognition cases. The degree of familiarity of the witness with the person he or she is identifying is very relevant just as are the circumstances of the identification itself. Here, Miss Costello had good previous familiarity with the appellant and had seen him not long before.
20.	Mr Bennathan invites us to proceed on the basis that the judge would, but for the supporting evidence have withdrawn the case from the jury at the close of the Crown’s case. The identification evidence alone was not a safe basis for conviction. He should therefore have directed the jury to that effect. The jury should have been directed as to what evidence was capable of amounting to supporting evidence, it being for them to decide whether it was or not, but they should also have been directed not to convict on the identification evidence alone. Mr Bennathan concedes that such a direction is not specified in these terms in Turnbull, but submits that as a matter of principle such a direction is required in circumstances where the judge would not have left the case to the jury in the absence of independent supporting evidence.
21.	He advances the following reasons for this. First, the mischief Turnbull seeks to address is unsafe convictions arising from the evidence of honest but mistaken witnesses. Once a trial judge has concluded that a conviction based solely on an identifying witness’s evidence would be unsafe surely it cannot be proper for a jury to be left with the opportunity to convict on such a basis. But that, he submits, would be precisely the effect of not requiring the direction for which the appellant contends. 
22.	Next he observes that while juries are normally allowed free range in arriving at factual conclusions, bitter experience has led the courts to make an exception in identification cases. As Lord Mustill put it in Daly v The Queen [1994] 1 AC 117 at p.129f:
“When assessing the `quality` of the evidence, under the Turnbull doctrine, the jury is protected from acting on the type of evidence which, if believed, experience has shown to be a possible source of injustice.”
23.	Mr Bennathan’s argument is that under basic principles it is for the jury to decide whether to accept or reject any supporting evidence. Thus it must follow that, absent the direction sought, the jury would be entitled to discount the supporting evidence and convict solely on the basis of identification evidence that the trial judge had previously found to be too poor.
24.	Mr Bennathan draws an analogy with the old law in cases where corroboration was required and juries were directed it would be dangerous to convict without it, although he does not seek to resurrect the old technicalities of corroboration. He also referred to directing juries about the dangers of convicting on the unsupported evidence of an accomplice.
25.	In our judgment no direction of the kind sort by Mr Bennathan is either required as a matter of principle or necessary in the circumstances of the present case. It is of course always open to a judge to warn the jury about the dangers in respect of any particular aspect of the evidence. A summing up needs to be tailored to the circumstances of the case. The evidential landscape will change when the defence call evidence. Identification evidence may become stronger or weaker as a result of other evidence called by the defence. In this case there were two defendants; both gave evidence. Other witnesses were called as well. It was for the jury to weigh up at the end of the day the whole of the evidence. It would in our judgment have been inappropriate and unhelpful for the jury to have been directed not to convict on Miss Costello’s evidence unless they found it was supported by one or more of the three potential supporting pieces of evidence.
26.	Mr Badger, for the respondent, submits that there are dangers inherent in requiring as a matter of principle the direction Mr Bennathan seeks. He says the judge would effectively be saying to the jury that he would have withdrawn the case from them but for the supporting evidence. This might lead the jury to conclude he thought the identification was safe to act upon because of other evidence in the case, a danger identified in the commentary to the report of R v Akaidere [1990] Crim LR 808.
27.	 Mr Bennathan has not drawn the court’s attention to any authority that supports a requirement to give the direction he seeks. His argument, although superficially attractive, does not in our judgment bear close examination. There are two distinct exercises for the judge. First he must decide, in a case depending on identification evidence alone, whether the evidence of identification crosses the quality threshold so that the case can safely be left for the jury to determine. Secondly, when summing the case up, he has to give the jury an appropriate Turnbull direction tailored to the facts of the case. There may be cases where, in the light of the evidence that has unfolded, the jury should be directed not to convict on the evidence of an identifying witness alone. However, in our judgment there is no general rule of principle of the kind submitted for by the appellant.
28.	When the judge summed the case up he gave the jury a classical Turnbull direction. The jury could have been in no doubt about the special need for caution as to Miss Costello’s evidence. He went on to deal with the weaknesses in her evidence in these terms:
“Undoubtedly the witness’s view was a fleeting glance – she said the words herself when it was put by counsel; and it was a profile view. At the same point the witness must have been undoubtedly under pressure at the time. Then there is also – as in the case of (the other defendant) – the first description to be considered, which I will remind you of when I come to deal with her evidence, and the contents of the officer’s notebook, to be taken into account as a weakness when you come to consider both their cases.”
29.	Mr Bennathan submitted, and this was the other ground of appeal that he pursued, that the judge dealt inadequately with the weaknesses in Miss Costello’s evidence. He should have given the jury a complete list so that the jury could consider them cumulatively. The list would have included the following.
•	She accepted she had a “quick fleeting glimpse of his face,” or “the amount of time was virtually nil.”
•	The glimpse was obviously in difficult circumstances.
•	She was 10 to 12 feet away with nothing to obscure her view.
•	It was a profile view.
•	She did not see all of the man’s face.
•	She was too far away to see:
a)	if he had facial hair;
b)	the colour of his eyes;
c)	particular features like the shape of his ears.
•	She mixed up the names of the four, very similar looking, brothers when giving a name for the offender at the scene on the night;
•	Mr and Mrs Costello both described the appellant as 5 foot 4 inches whereas he is 5 foot 9 inches.
•	She told the police he was in his mid twenties whereas in fact he is 36.  
30.	The judge touched on most of these matters in his summing up at different stages when recounting the evidence. Some are no more than different aspects of the same weakness. The complaint is that they should all have been listed together. In our judgment the judge covered adequately the weaknesses in the identification. He gave the jury the appropriate Turnbull direction and drew attention to the various weaknesses in the identification evidence as he summarised the evidence and the issues to the jury. We were reminded of the words of Steyn L.J in R v Fergus (1994) 98 CrAppR 313 at p.318 that it is incumbent on a trial judge to place before a jury any specific weaknesses which can arguably be said to have been exposed in the evidence and that the judge must deal with the specific weaknesses in a coherent manner so that the cumulative impact of those specific weaknesses is fairly placed before the jury. However, we are satisfied that the judge complied with that requirement in the present case. 
Conclusion.
31.	The point of law to which the argument was mainly directed was this: the judge having decided that the identification was of such poor quality that he would not have left the case to the jury in the absence of supporting evidence, must the jury be directed that they should not convict on the evidence of identification alone in the absence of supporting evidence? In the first place we are not satisfied the judge would have stopped the case in the absence of supporting evidence. But assuming that were so we do not think the judge was required to give such a direction. Identification cases always require a careful direction from the judge drawing attention to the dangers of honest but mistaken identification along the lines of Turnbull. But the jury has to consider its verdict in the light of the whole of the evidence, it being a matter for them what evidence they accept and what evidence they reject. When a defendant gives or calls evidence, and especially so when there is more than one defendant, the picture may look very different at the conclusion of the whole of the evidence from how it looked at the end of the prosecution case. We have found nothing unsafe about the appellant’s conviction and these are our reasons for having dismissed his appeal.