No. 2013/00430/B1
Neutral Citation Number: [2013] EWCA Crim 2406
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Thursday  28  November  2013
B e f o r e:

LORD  JUSTICE  McCOMBE

MR  JUSTICE  MITTING

and

MR  JUSTICE  PHILLIPS

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R E G I N A

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ANTHONY  ROBERT  ROGERS
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Mr C Christou appeared on behalf of the Appellant

Miss R Sadler appeared on behalf of the Crown
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J U D G M E N T
Thursday  28  November  2013

LORD JUSTICE McCOMBE:  
1.  On 21 December 2012, following a trial in the Crown Court at Lewes (sitting at Brighton) before Mr Recorder Hamer and a jury, the appellant was convicted by a majority verdict of 11:1 of burglary of a dwelling.  He was sentenced to five years' imprisonment.  He now appeals against conviction and sentence by leave of the single judge.  

2.  On 23 March 2012 a burglary was certainly committed by somebody at Framfield, near Uckfield in Sussex, between the hours of about 11.55am and 3pm on that day.  A .22 air rifle and a handbag and contents were stolen.  A pair of sunglasses, not associated with anyone at the property, were found in the living room.  DNA matching that of the appellant was found on the glasses.  In addition, the Crown placed reliance on certain CCTV images emanating from a neighbouring property from which two police officers claimed to identify the appellant who was already known to each of them in view of his past history.

3.  The appellant said that he had been nowhere near the scene at the relevant time and did not know the property in question.  His case was that he might have been at a gymnasium, or, failing that, at another address in Uckfield.  In his police interview he denied ever gong to Framfield or even knowing where it was.  However, unfortunately for him, he lived near Framfield and had a conviction in 2004 for burglary in precisely that location.  

4.  Checks with the gymnasium manager were made.  She was able to say that the appellant's identification swipe card used for access to the gymnasium had not been used on the day in question.  She gave evidence to that effect at trial.

5.  The two identifying officers were DC Davis (the investigating officer in the case) and PS Lynch (a serving officer attached to the Offender Management Team).  In evidence DC Davis said that on 11 April, just over two weeks after the burglary, he had received the initial DNA results linking the appellant to the sunglasses found at the burgled property.  On 17 April 2012 he had looked at footage from the neighbour's CCTV and had obtained three still photographs from it.  He thought that the images showed the appellant, but was not 100 per cent sure because, even though he knew the appellant, he had not seen him for some time.  He acknowledged that he had the appellant in mind because of the DNA evidence already received.  When he saw the appellant at the police station on 24 April when he first attended in relation to this matter, DC Davis was confirmed in his view that the photographs did indeed show the appellant.  However, in a second interview on 11 June, the appellant denied being the person shown in the CCTV stills.  Whatever else might be said, the stills showed a man of the approximate build of the appellant, and indeed wearing sunglasses.

6.  After the second interview, on 16 June 2012 PS Lynch (who had dealt with the appellant regularly since October 2010 in relation to his previous offences for which he was on licence) saw the photographs.  She expressed the strong view that the photographs showing the back of the person concerned were of the appellant whose back had a very distinctive feature of build and hairstyle.  She gave evidence to this effect before the jury.  Mr Christou for the appellant has pointed out that there were certain discrepancies between the evidence of PS Lynch and another officer who had attended to the identification procedures which would have been appropriately noted if the provisions of Code D under the Police and Criminal Evidence Act 1984 had been observed.

7.  At the start of the trial the defence had applied to the Recorder to exclude the evidence of the photographs and the evidence of the visual recognition by the two officers.  Objection was taken to the quality of the photographs, to the evidence of DC Davis, as being tainted by his knowledge of the DNA results from the glasses, and to that of PS Lynch because, as was admitted, there had been breaches of the requirements of Code D on identification of persons by police officers.

8.  So far as the quality of the photographs was concerned, the Recorder held that the points made were ones for the jury in the light of all the evidence.  We have seen better copies of the photographs than were originally available in the papers, which, although they have their deficiencies, clearly show the image of a person of a certain build who is wearing sunglasses.  The Recorder saw no grounds to exclude DC Davis' evidence under section 78 of the 1984 Act.  There was no breach of any of the Codes alleged in relation to his recognition evidence.  Further, he could see no reason to exclude the officer's evidence of recognition of the appellant from the stills on the occasion when he had attended the police station in relation to this case.  

9.  The Recorder recognised that the position in relation to PS Lynch's evidence was different, in that there had been a number of breaches of Code D with regard to the recording of the initial recognition procedures.  They are itemised in the ruling.  As Mr Christou submits, it indicates that Code D was not observed at all in relation to this particular procedure.

10.  The Recorder considered the principles stated in R v Forbes [2001] Cr App R 31, per Lord Bingham of Cornhill CJ (in particular at paragraphs 23-29), and said that the question for him was whether the admission of the officers' evidence would render the trial unfair or any conviction unsafe.  He decided "with some hesitation" that he would allow the evidence to be given.  He considered that the position could be fully and fairly dealt with by a suitable direction to the jury in his summing-up.

11.  On the same day the Crown also applied to admit into evidence the appellant's previous convictions for dwelling-house burglary in the same area as the subject property, as evidence of propensity to commit offences of the type now charged.  This was opposed by the defence.  However, the Recorder admitted the evidence which duly went before the jury.  In his ruling the Recorder found that the convictions were all fairly recent, the earliest was in 2004.  He recognised the potential for prejudice in the minds of the jury by the admission of such evidence of a number of burglaries of the same type in the same area and said that he would give appropriate directions to the jury on that point.  He rejected the argument that the character evidence was being used to bolster an inherently weak case.  He referred to the DNA, the photographs and the checks made on the appellant's movements.  He found that the convictions were relevant to an issue of propensity and accordingly allowed the evidence to be given.

12.  During the course of PS Lynch's cross-examination it emerged that, quite apart from the breaches of the Code, which were acknowledged, prior to her viewing of the photographs she was aware that the appellant had been arrested for this burglary and that she knew that there was DNA evidence linking him to the scene.  The Recorder noted that his original ruling had been predicated upon the witness having simply been shown the photographs and having recognised the appellant.  It was now being suggested to the officer that knowledge of the DNA had led her to jump to the conclusion in identifying the appellant.  He allowed the cross-examination to continue and said that he would allow overnight for everyone to consider the new position that had arisen.

13.  On the following day there was a lengthy exchange between the Recorder and the advocates as to the proper course to take.  It is clear from the transcript that the Recorder considered the position very carefully with reference to the relevant passages in Archbold. The passages to which he referred appear to be essentially the same as the corresponding passages in the 2014 edition of the textbook which has just been published.  He noted from paragraph 15-415 that he was unable to revisit the ruling that he had made the previous day in which he decided the evidence should be admitted, but that if he thought that the ruling was affected by new evidence he was "not powerless".  As indicated in paragraph 15-433 (derived from R v Sat Bhambra (1989) 88 Cr App R 55), there were a number of options open. He could direct the jury to disregard the evidence in question; he could direct the jury as to the factors which might affect the weight of the evidence; or, if the matter could not be resolved in any other way, he could discharge the jury.  The Recorder referred back to paragraph 4-316 and to the first paragraph within that section which deals with cases where inadmissible material went before a jury by some inadvertence of the parties or of the judge, where the discharge of the jury, as is well-known, is not inevitable.  He cross-referred to 4-307, which indicates that "a high degree of need" should be evident before a jury is discharged.

14.  Mr Christou, who appeared for the appellant at trial as he does before us, submitted to the Recorder that any direction to the jury on this subject dealing with the principles applicable to the identification or recognition evidence, and the breaches of Code D would be "getting into quite difficult territory" and that there was a danger of the jury becoming confused by the number of directions to which they were subjected.  Mr Christou ended by saying this to the Recorder:

		"I think my submission is twofold: either you discharge the jury or, if you feel it is appropriate, we come up with some sort of appropriate direction."

15.  Miss Sadler for the Crown, who also appears before us today, submitted that the matter could be dealt with by appropriate direction to the jury.  She said that, irrespective of any problem relating to PS Lynch, hers was not the only evidence; there was evidence also to DC Davis, as to which no objection arose, and the other features of the case, including the DNA evidence.  She referred the Recorder to R v Chaney [2009] 1 Cr App R 512 and R v JD [2012] EWCA Crim 2637.  

16.  In his ruling the Recorder scrutinised with care the evidence that PS Lynch had given.  He found that the officer had carefully reviewed the photographs.  In cross-examination which had already taken place she denied that her recognition was in any way influenced by the knowledge of the DNA test.  If the evidence had been given on the voir dire, he considered that he might well have allowed the evidence to go before the jury in any event.  He carefully reviewed the authorities to which he had been referred, and noted such lessons as he considered might be drawn from them.  He noted that, for example, in JD the breach of the Code had been described by this court as "flagrant" with knowledge of the provisions involved.  That was not the case in the present matter.  In Chaney the matter was considered to be a suitable one for a jury direction in a case prior to the issue of the present Code covering precisely the present circumstances, but in which the court identified the desirable procedures.  All in all, the Recorder was convinced that the right course here was to cover the matter by an appropriate jury direction.

17.  On the present appeal it is argued that the conviction is unsafe on three grounds.  In the written grounds of appeal it is submitted that the evidence of DC Davis and PS Lynch should not have been admitted.  Mr Christou has not laboured the point in relation to DC Davis before us.  Secondly, it is said that the Recorder should not have admitted the evidence of the appellant's previous convictions.  Thirdly, it is argued that the jury's deliberations, the history of which we shall return, on the last Friday before the Christmas holidays appears to have been rushed to the prejudice of the appellant.  We shall address these points in turn.

18.  We can see no reason why the evidence of DC Davis should not have gone before the jury.  Mr Christou has not pressed that matter hard before us.  There had, in fact, been no breach of the PACE Codes in respect of his evidence.  The only objection that was raised was as to his knowledge of the DNA results before viewing the pictures.  It seems to us that this could have been no reason to refuse to admit the evidence.  Such prompting of recognition that might have arisen from the knowledge of the results seems to us to be classically a jury point, which no doubt was explored in cross-examination and in argument.  The Recorder correctly referred to this aspect of the matter and to the defence arguments upon it in his summing-up.  In our judgment there is no question of the admission of that evidence having been wrong.  It could clearly be dealt with by an appropriate reminder to the jury about the evidence and, as happened, the defence case upon the point.  This is what occurred.

19.  Turning to PS Lynch's evidence, there is the additional feature that the PACE Code was not followed.  Following the Recorder's initial decision to admit the evidence, it emerged that PC Lynch, too, had known of the DNA results before seeing the photographs and that her assistance was required to make an identification in the light of her rather better acquaintance with the appellant.  We note also, as Mr Christou correctly observes, that the Recorder had reached his initial decision with regard to the admission of her evidence "with some hesitation".  However, allowing for the Recorder's concerns, we cannot see that he exercised his discretion incorrectly in either of the rulings or the subject.  We consider that he was right on each occasion to conclude that the evidence was not so tainted as to be excluded altogether and that it could be admitted, subject to proper jury directions.  It is quite clear, in our judgment, that he considered each of his rulings very carefully indeed, with reference to all the relevant materials.  He clearly had a discretion with the exercise of which we would be most reluctant to interfere.  However, we see no grounds to interfere in any event.  We consider that he made the correct decision.  The evidence, with such flaws as it might have had, went before the jury and the shortcomings were placed firmly in the jury's mind by the summing-up and no doubt by counsel's arguments.

20.  As for the appellant's previous convictions, again we see no fault in the Recorder's decision.  The convictions clearly demonstrated propensity.  The case for the Crown, if the convictions were disregarded, was not a weak one; far from it.  There was the DNA, the evidence of DC Davis, and, if allowed, that of PS Lynch, and the undermining of the appellant's supposed alibi.  He had also told lies in his interview, even without the evidence of the conviction for burglary in Framfield.  He could hardly have been truthful when he said that he did not know where Framfield was, as he lived so close to it.  The convictions were properly admissible and the trial was not rendered unfair by their admission.  Indeed, as Mitting J pointed out in argument, those convictions might in any event have been admitted in support of the contested identification. Again, the Recorder fully and correctly directed the jury as to their proper approach to this evidence.

21.  The final point relates to the jury deliberations, which requires us to say a little about the chronology.  The Recorder's summing-up was delivered on the morning of Friday 21 December 2012. The jury retired at 11.14am.  A jury note timed at 11.45am gave figures which could not be revealed to counsel, and indicated that the jury was at an impasse which could not change absent "fresh evidence".  At 11.59am the note was considered with counsel.  At 12.03pm the jury returned to court to be told that they must endeavour to reach a unanimous verdict and that evidence was now closed and that there would be no more.  They were told, as they had been at the end of the summing-up in the usual way, that the law allowed majority verdicts in certain circumstances which had not yet arisen.  Following this instruction the jury retired again at 12.07pm.  The Recorder then told counsel that, subject to any notes, he would not take a verdict between 1pm and 2pm.

22.  It seems from the transcript that at 12.13pm the Recorder received a further note, a copy of which strangely we do not have, but which is quoted at page 29 of the transcript as follows:

		"We understand there is a time limit.  However, the decision will not change for however long we stay here."

The Recorder apparently sent a message to counsel that he would show counsel the note at 1pm, or at the end of another judge's list (who it seems was using the same courtroom).  The other judge left court at 1pm or shortly thereafter.  When the Recorder returned to court counsel were not present.  In the meantime, as appears from the transcript, the Recorder did not respond to the jury note.

23.  At 2.01pm the Recorder sat again in the absence of the jury and disclosed the content of this further note to counsel.  The Recorder clearly thought that the reference to the "time limit" in the note was to some jury understanding of the law's requirement of the passage of time before a majority verdict became open: see his remarks at page 29H-30A of the transcript.  It was decided by all parties that at that stage a majority verdict direction was appropriate.  The jury returned at 2.06pm and such a direction, in the usual form, was given.  The Recorder informed the jury that they should still strive to reach unanimity, but that if that was not possible, a verdict on which at least ten of their number agreed would be acceptable.

24.  The jury retired again at 2.08pm.  At 2.15pm a further note was received, again containing figures.  At 2.36pm the jury returned to court and returned their verdict of guilty by a majority of 11:1.  

25.  It is submitted by Mr Christou that the chronology which we have related suggests that the jury appeared to be in a hurry to reach a verdict and were concerned about what would happen if they had not agreed upon a verdict by the end of the day, particularly as this day was the Friday before Christmas.  Mr Christou adds to his points that at no time does it appear to have been suggested that there was a possibility either of continuing deliberations on another day or of the jury being discharged in the absence of agreement.

26.  In our judgment we do not consider that any point reflecting upon the safety of the conviction arises out of the chronology of the jury deliberations which we have set out, or out of the jury notes.  This was a straightforward case in which the issue was very narrow indeed: were the jury sure on the evidence as presented that the person who committed the burglary was the appellant?  The evidence was within a very narrow compass.  The summing-up was, in our judgment, impeccable and clear.  The jury had been in retirement for almost three hours before the majority direction was given.  They deliberated for a further 28 minutes before returning to court with a verdict from which only one of their number dissented.  We can see nothing unsatisfactory and nothing which affects the safety of the conviction.

27.  Those were the points advanced by Mr Christou in writing and supplemented orally.  For the reasons we have given we dismiss the appeal against conviction.

28.  We turn to the appeal against sentence.  The appellant is 52 years old.  He had 21 convictions for 37 offences, of which 24 were for burglary or theft.  There were offences of dwelling-house burglary in 1992, 1997, 2005, 2007 and 2009.  He was on licence at the time of the instant offence, having been released from custody on 13 December 2010 in respect of an earlier mandatory sentence of three years' imprisonment under statute, expiring on 13 June 2012.  This burglary, as we have related, occurred in March 2012.

29.  Mr Christou, in admirably succinct but careful submissions, argues that the sentence was manifestly excessive.  It is submitted that, while under statute the appellant was bound to receive a sentence of at least three years' imprisonment, a more appropriate sentence in his case was one of four years rather than five years' imprisonment.

30.  At the sentence hearing it was briefly argued by the Crown that this case fell within category 1 of the sentencing guidelines in relation to burglary, although Mr Christou submitted that this was a category 2 case.  Counsel for the Crown (who was not Miss Sadler on that occasion and had not conducted the trial) suggested that the householder had been present at the time of the burglary.  That did not appear to be supported by the evidence.

31.  It was submitted to the Recorder that, looking at all of the circumstances, the case was truly a category 2 case; no physical or psychological injury was caused, although it is accepted that some ransacking occurred; this was not a case in which there was "greater harm" within the meaning of the guideline.

32.  In passing sentence the Recorder noted that the offence had been committed while the appellant was on licence under a previous mandatory sentence for repeated burglary.  He had an appalling record for domestic burglary and dishonesty generally.  He had targeted this property, as he had previously targeted similar properties in the same area and often in the countryside.  The Recorder saw himself under a duty to protect the public.  The appellant had shown no remorse for his offending.  The Recorder said that he also bore in mind the personal statement made by the householder.  In that statement we note that she spoke of her nervousness now in returning home after this incident, and her need to check, in a compulsive manner, her doors and her locks.  She had also had to instal cameras and panic alarms, which were not present before.  She remains fearful for the safety of her dogs, which she now tends to take with her when she goes out, rather than leave at home as she had done in the past.

33.  We consider that the Recorder was correct to identify that there had been targeting of these premises.  The appellant was an experienced burglar - an experienced burglar in this area.  The Recorder's conclusion was inevitable.

34.  We need say no more than that we agree entirely with the Recorder's sentencing remarks.  This sentence was fully deserved and not a second excessive in length.  Accordingly, we dismiss the appeal against sentence also.