Neutral Citation Number: [2014] EWCA Crim 1148
Case No. 2013/06591/C1
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Thursday  15  May  2014

B e f o r e:

LADY  JUSTICE  RAFFERTY  DBE

MR  JUSTICE  HOLROYDE

and

MRS  JUSTICE  ANDREWS  DBE
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R E G I N A

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TREVOR  FRANKLIN  ASCOUGH
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Mr C Buckle appeared on behalf of the Appellant

Mr R Holland appeared on behalf of the Crown
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	J U D G M E N T

LADY JUSTICE RAFFERTY:  

1.  On 28 November 2013 in the Crown Court at Manchester the Appellant, Trevor Ascough (now 45), was convicted of burglary and sentenced to five years' imprisonment.  By leave of the Single Judge he appeals against conviction.

2.  On 2 August 2013, at 7.05am, a masked intruder broke into a home at 48 Moorhey Road, Little Hulton in Salford, waking Mrs Monaghan (the occupier) and stealing a variety of items.  

3.  The Crown relied principally on Mrs Ingrid Sunderland and Mr Clifford Middleton.  Its case was that minutes after the burglary the two of them - they lived at 52 Moorhey Road - had seen a masked figure walk past their window.  At least one, if not both, recognised the Appellant.

4.  Mrs Monaghan described the intruder as of medium build, perhaps 5ft 8in, wearing a mask over the bottom of his face and a black-coloured top.  He spoke with a local accent.

5.  Mrs Sunderland's evidence was that she had seen a figure passing her window which at that stage she did not recognise.  The man returned, paused at and looked through the window for some two to three minutes. He had a scarf or a hood covering his head and forehead, and a scarf over the lower part of his face.  She recognised the Appellant who had previously lodged with her.  She said he wore a dark-blue hoodie pulled tight across his head.  The jury was shown a hoodie seized from the Appellant's home.  She explained there were two holes on left and right of his mouth, linked with two silver rings.  It was not in issue that she had fallen into disagreement with the Appellant, blaming him for taking some of her property when he lodged with her albeit there was no evidence to support that theft having happened. 

6.  Mr Middleton (her then lodger) told the jury that he struggled to remember events. The Crown therefore sought and received permission from the Judge to take him through his written statement.  It emerged that Mr Middleton was illiterate. The Judge was immediately alert to how, if illiterate, the witness had checked his statement once made.  In any event, what Mr Middleton offered the jury in evidence was that he had looked out of the window at about seven in the morning and seen the Appellant whom he knew, although not as well as did Mrs Sunderland.  The man was masked.  A hole showed his eyes and nose, and there was a smaller hole for the mouth.  A light-coloured hood was worn up.  Mr Middleton was in the back garden of No 52 and said he had seen the man run off.  To his best recollection Mr Middleton had locked the side gate of the property.

7.  Mrs Sunderland telephoned the police at 7.18am.  During the 999 call, a transcript of which was available, she said she had a "pretty good idea" who it was.  She then named the Appellant and said it was probably he, and added that she thought it was he.

8.  Unchallenged evidence from the neighbour at No 50 was that a slim white male, some 5ft 8in, a roughly woven mask covering his face, a large hole in the middle for eyes and nose and wearing a black jacket passed very close to his window at about 7am going toward No 48, and returned moments later.  

9.  An officer described seeing a male in the area at about 7.35am riding a pedal cycle, in light trainers, a navy tracksuit, medium build, perhaps 40, grey haired, and with a plastic bag strapped across his back.  The object from the defence point of view of this being before the jury was to lay the ground for the suggestion that someone other than the Appellant was in the area.

10.  Arrested, the Appellant claimed to have been with his girlfriend all night.  En route to the police van he called out to a group of women, "Tell them I've only just come out".

11.  We turn to the position of the illiterate Mr Middleton. The Crown sought leave in reliance on section 139 of the Criminal Justice Act 2003 to put before the jury his statement. Where relevant, section 139 reads as follows:

		"Use of documents to refresh memory.

		(1)  A person giving oral evidence in criminal proceedings about any matter may at any stage in the course of doing so refresh his memory of it from a document made or verified by him at an earlier time if -

			(a)	he states in his oral evidence that the document records his recollection of the matter at that earlier time, and

			(b)	his recollection of the matter is likely to have been significantly better at that time than it is at the time of his oral evidence ..."

12. The Judge sent for officers whom he hoped could assist him with the puzzling aspect of how Mr Middleton could have checked his statement. In the end this was not practicably achievable within the constraints of the continuing trial. The Judge, having expressed his anxiety, said to counsel for the Crown: 

"Your alternative is to try and read the statement to him ..., sorry, to put the statement to him in the witness box.

COUNSEL:  To go through it line by line as I would do with a witness if I [were] given leave by the court so far as section 139 is concerned."

13. The Judge also had some anxiety about Mr Middleton's mental capacity. Nevertheless he concluded that section 139 permitted the Crown to take the course for which it contended albeit the foundation for its application was not in apple pie order.

14.  The trial continued.  At the conclusion of the case for the Crown a submission was made that the case should be withdrawn from the jury.  The Judge identified the issues as narrow and classic jury points.  A decision on the reliability of the recognition evidence of Mrs Sunderland and Mr Middleton was squarely for the jury.  If it were satisfied, it could then decide what proper inference it could draw having regard to the totality of the evidence before it. The Judge rejected the submission.

15. Grounds of Appeal are that he should have acceded to it and should not have allowed the Crown to adduce the evidence of Mr Middleton since the the enquiry he conducted was inadequate.  Particular reliance is placed on three matters.  If, counsel submits, a path is tracked through (a) the 999 call, (b) the oral evidence of Mrs Sunderland, and (c) the evidence of Mr Middleton, the flaw in the evidence of identification is revealed. He suggests that during the 999 call Mrs Sunderland stayed shy of indicating with complete confidence that the masked intruder was the Appellant.  In every one of her comments there is an element of reserve, it is said.  She has "a pretty good idea"; it is "probably" Trevor Ascough; she "thinks" it was he. Her oral evidence was that the male paused for two to three minutes to look through the window, in contrast to the evidence of Mr Middleton that the male paused for one or two seconds. The submission is that the jury should have rejected the evidence of Mrs Sunderland and adopted that of Mr Middleton.  Consequently there were one or two seconds of observation upon which the Crown could have relied.

16. Summing-up the Judge said:

"Well, a matter of seconds, says Clifford [Middleton], a matter of minutes, says Ingrid [Sunderland].  You may find that hard to swallow actually (a matter of minutes), because, if you think about it, two to three minutes is a long time, but that is what she says, but a brief time, you may conclude, members of the jury.  How does that affect your judgment about the accuracy of her recognition evidence?"

This passage was criticised as misleading. 

17. All these submissions are hopeless.  The extract from the summing-up is entirely beneficial to the Appellant.  The Judge distilled the difficulties for the Crown and with complete accuracy reminded the jury of what was at issue - recognition evidence.  No one challenged the fact that Mrs Sunderland knew her former lodger.  No one challenged the fact that Mr Middleton knew the Appellant.

19.  Should the witness statement of Mr Middleton have found its way to the jury as it did?  The correct hurdles were distilled from S139, the Judge’s evident concern appropriately pursued, and a balancing exercise conducted on whether it were likely to be profitable further to pursue the attendance of police officers who were with Mr Middleton when the statement was made.  There is nothing impugnable in the Judge’s decision.  

20.  Finally, counsel suggests that this conviction is unsafe because of the cumulative effect of the difficulties he has identified.

21.As we reject all the Grounds that submission falls away. This appeal is dismissed.

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