Neutral Citation Number: [2018] EWCA Crim 1065
Case No: 201704201 C2 and 201704202 C2 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Wednesday, 14 March 2018
 
B e f o r e:

LORD JUSTICE SIMON 

MR JUSTICE GOOSE 

HER HONOUR JUDGE TAYTON QC
(Sitting as a Judge of the CACD) 
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R E G I N A 
v 
DAESHAUN GASTON 
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Computer Aided Transcript of the Stenograph Notes of 
WordWave International Ltd trading as DTI, 
165 Fleet Street London EC4A 2DY, 
Tel No: 020 7404 1400 Fax No: 020 7831 8838
 (Official Shorthand Writers to the Court)
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Mr D Weetch appeared on behalf of the Appellant

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

If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached.  This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. 
LORD JUSTICE SIMON:  
1.     On 18 August 2017, in the Crown Court at Wood Green, before His Honour Judge Dodd QC and a jury, the appellant, now aged 19, was convicted on three counts of an indictment.  On 15 September, he was sentenced on count 1, causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861, to an extended sentence of 14 years, consisting of a custodial term of 10 years' youth detention and a 4‑year extended period of licence; on count 3, violent disorder, contrary to section 2(1) of the Public Order Act 1986, to a concurrent term of 3 years' detention; and on count 4, possession of an offensive weapon in a public place, contrary to section 1(1) of the Prevention of Crime Act 1953, to a concurrent term of 18 months' youth detention.  The overall term was therefore a 14‑year extended sentence of detention in a Young Offender Institution.

2.    There were two co‑defendants: Nathan Small, aged 22, who was convicted on count 3, violent disorder, and was sentenced to a term of 3 years' imprisonment to be served consecutively to an earlier sentence for an unrelated offence of section 47 assault; and Kyle Rose‑Green, now aged 19, who changed his plea on 31 March 2017, before the jury was sworn, in respect of counts 1 and 4, as well as count 5, a charge of having a bladed or pointed article in a public place, contrary to section 139 of the Criminal Justice Act 1988.  He was sentenced as follows: count 1, a term of 6 years 9 months' detention; count 3, 18 months' youth detention concurrent; count 5, 18 months' youth detention concurrent: an overall term of 6 years and 9 months' youth detention.

3.	The appellant appeals against conviction with the leave of the single judge, who referred the appeal against sentence to the full court.

4.    	The prosecution arose out of an incident that occurred in the early hours of 19 January 2017.  At about 1.30 am, a group of between 10 and 14 masked and hooded youths entered the Dixie Fried Chicken shop in Tottenham.  Some were armed with knives.  They attacked two men inside the shop: Nathaniel Belaineh, who was seriously injured; and a young man named Smith, who managed to jump over the counter and sustained only a minor scratch.  Neither of the victims co‑operated with the police and each refused to make a statement or attend a trial.  The incident, which lasted a matter of seconds, was captured on CCTV cameras inside the shop and there was also footage from nearby Stoneleigh Road, showing two cars arriving, a large number of young men getting out and later running back after the incident.

5.	In accordance with standard procedure, stills from the CCTV cameras inside the shop were circulated to police.  On 9 March 2017, Detective Constable Berry recognised the appellant as one of the attackers seen thrusting a large knife at the victim Nathaniel Belaineh.  It was common ground that he had previously met the appellant on an occasion in December 2016 for a few minutes.

6.	The appellant was arrested at his home and items were seized.  These included a jacket and jogging bottoms which were similar in appearance to those worn by the youth, recorded in the CCTV footage stabbing Nathaniel Belaineh.  In interview, the appellant gave no comment answers to all questions.

7.	The prosecution case against the appellant was that he had been correctly identified by DC Berry as one of the youths in the CCTV footage involved in the attack and as the one who thrust a knife into Nathaniel Belaineh.  It was this evidence that was at the forefront of the prosecution case and it is this evidence that forms the main focus of the appeal against conviction.

8.	In addition to this evidence, the prosecution relied on the similarity in appearance between the attacker of Nathaniel Belaineh recorded on the CCTV footage and the appearance of the appellant at court and in a post‑arrest photograph.  They also relied on an adverse inference from the appellant's no comment interview and what he later told the jury in evidence.  The prosecution had also adduced the appellant's bad character, consisting of previous convictions for possession of knives in November and December 2015.  Finally, there was reliance on the similarity of clothing, jogging bottoms and a jacket, worn by Nathaniel Belaineh's attacker as recorded on the CCTV images and various items recovered from the appellant on arrest, although during the course of cross‑examination the officer in the case accepted that the two jackets were not the same and indeed had different markings on the side.

9.	The prosecution case against the co‑accused Small was that whilst not recorded on the CCTV footage carrying a knife or stabbing either of the victims, he was nevertheless part of the group of attackers, encouraging them by his presence and thereby participating in and jointly responsible for the offences that were committed.

10.	The defence case for the appellant was that he was neither present nor involved in the incident and was probably at home at the material time.  The identification of DC Berry was challenged and was said to be wrong.  The defence also raised a number of further matters.  First, there was no evidence of a connection or association between the appellant and Small nor between the appellant and Kyle Rose‑Green, the youth who had pleaded guilty before trial.  Second, there was no forensic evidence linking him to the crime.  Third, there had been no forensic analysis of the appellant's phone.  Fourth, the CCTV footage had been not enhanced to enable facial mapping.  

11.	The defence case for Nathan Small was that although admitting he was present at the scene of the attack, he had no idea anyone was carrying a knife or that an attack was planned.  

12.	The issue for the jury in respect of the appellant was whether they were sure he had been correctly identified as being present and involved during the attack on 19 January 2017 at the Dixie Fried Chicken shop.  

13.	Among the witnesses called by the prosecution, it is convenient to concentrate on the evidence of three police officers.  DC Ogbo was the officer in charge of the investigation.  He explained that the investigation had focused on the CCTV footage from the Dixie Fried Chicken shop because there were no witnesses who were willing or able to give evidence as to what had happened or to identify those responsible.  He explained there was a standard procedure of distributing still images from the CCTV footage throughout the Metropolitan Police network to see if anybody could recognise any of those recorded on the footage.  He played the CCTV footage for the jury and identified individuals according to the prosecution case.  He said that the appellant's phone was seized at the time of arrest but that it had not been analysed and the CCTV footage had not been enhanced.  It had not been possible to say precisely how many people had been involved, although it looked as though there were about 13 people running back towards the two vehicles in Stoneleigh Road after the incident.

14.	DC Berry was described by the judge as "absolutely central" to the case against the appellant.  This officer explained that he was attached to Haringey police station and that a regular part of his employment was to review emails containing "Caught on Camera" images of alleged offenders.  He received a "Caught on Camera" email image on 23 February 2017 and recognised the appellant.  He described the appellant as having an "overbite", where his lower lip sticks out a little, making his lower lip appear larger.  He spoke about his skin colour, being able to see a variation between the internal and external lips.  He had seen the appellant about 2 months before when he been on routine duty in an unmarked police car.  He and a colleague saw two males, one of whom they knew and wanted to speak to, and the other being the appellant.  The two males ran away.  His colleague chased the known male while he chased the appellant.  He spent 3 to 5 minutes speaking to him in the street.  It was daylight and he had a good and clear view of the appellant during the conversation.  Subsequently, he was present when the appellant was arrested on 29 March at his home address.  

15.	In cross‑examination, he accepted that he had seen the stills but not the moving CCTV footage.  He did not agree that the stills were of poor quality; they were sufficiently clear for him to recognise the appellant.  He said he thought he recognised one or two of the other faces in the stills but did not feel confident enough about those to make an identification.  He was sure his identification of the appellant was correct: "This one I'm certain about". 

16.	Another officer, PC Humphreys, had also viewed the "Caught on Camera" images and he had identified Nathan Small, whom he had seen on a regular basis previously.  Nathan Small did not dispute this identification.  

17.	The prosecution applied to adduce evidence of the appellant's previous convictions for offences of possession of bladed articles on 25 November and 3 December 2015 under section 101(1)(d) of the Criminal Justice Act 2003 as relevant to an important matter in issue between the prosecution and defence, namely whether the appellant had a propensity to commit offences of a kind with which he was charged ‑ see section 103(1)(a).  

18.	The defence objected on three grounds, which are reflected in the arguments on the appeal against conviction.  Firstly, to admit the evidence amounted to bolstering what was otherwise a weak case.  Secondly, the previous convictions did not in fact establish a propensity to commit the offending charged on the indictment since they were factually dissimilar offences.  Thirdly, in any event, the previous convictions ought to have been excluded in the exercise of the court's discretion.  

19.	The judge decided to admit the previous convictions and reserved his reasons.  The defence then called the appellant to give evidence in his own defence.  He told the jury that he was aged 18 and lived with his mother.  The images on the footage from the chicken shop were not of him and he had not been present in the shop on the day in question.  He did not know where he had been but was normally at home or perhaps having a sleepover at a friend's house.  He explained his daily lifestyle, which included habitually being at home by 10.00 pm.  He would not regularly be out in the early hours of the morning.  He did not know either of the co‑accused, Nathan Small or Kyle Rose‑Green, and he had never been to the Dixie Fried Chicken shop.  He was not familiar with that area.  

20.	Dealing with his two previous convictions for carrying knives in 2015, he said that he had carried them for his own protection.  Two of his friends had been stabbed and killed and he had become paranoid.  He had co‑operated fully with the police when he was stopped, volunteering the knife on the first occasion and placing it on the floor on the second.  After these two arrests his attitude had changed and he realised he could not carry a knife in public.  

21.	Dealing with his silence in interview, he explained he had just wanted to get it over with quickly and decided to give no comment answers so as to keep the interview short, get bail and go home.  He agreed that he had a slight resemblance to the male identified as male 1 in the footage but denied that it was him.  He pointed out that the jacket which had been seized from his address had no hood, and that the Nike jogging bottoms seized were generic and worn by many youths.  Although his mobile phone had not been analysed, it was in fact a new one. The one he had had back in January had been lost.  He could not remember the number of it.

22.	In cross‑examination, he repeated that it was not him in the CCTV footage.  He did not know who Nathan Small was and added: "I didn't see the person that you say is Nathan Small doing anything on that footage". He insisted he led a quiet life, usually being home by 10.00 pm unless there was a special occasion. 

 23.	Dealing with his previous convictions and the suggestion he was accustomed to going out "tooled up", he said there were a lot of people who disliked him and who made him a target because of people he had known and associated with.  These people carried knives.  He denied he was part of a youth culture that routinely carried knives.  

24.	As to his interview, he said he had been wrong not to have had a solicitor but he had been told by the police that there would be a bit of a delay in a solicitor arriving.  He denied that he had made no comment answers because he was waiting to see what evidence the prosecution had so that he could weave his account around it.  He denied the suggestion that he was present as part of the gang that launched the attack in the Dixie Fried Chicken shop or that he had assaulted anyone there.

25.	Nathan Small also gave evidence.  He accepted being present in the premises at the material time but denied any plan or involvement in the attack that took place.  He did not know the identities of others in the footage but said that even if he did, he would not name them because it would put his life in danger.  

26.	We turn then to the judge's ruling on the prosecution application to adduce the bad character of the appellant and Nathan Small.  The judge had regard to the relevant passages in Archbold and Blackstone and to a number of cases, including R v Dossett [2013] EWCA Crim 710 and R v LN [2014] EWCA Crim 506 and R v Richardson [2014] EWCA Crim 1785.  In relation to the appellant, he had considered the defence submissions that to allow the admission of his previous convictions for knife crimes would simply be to bolster a weak case against him.  However, in his view, the case against the appellant was not weak.  It involved an identification by DC Berry looking at still images, albeit that the identification was "not straightforward".  This was supplemented by a ‘no comment’ interview, and "some coincidence of clothing style" as between that worn by the attacker and that seized from the appellant's address.  He was satisfied that in the appellant's case his two convictions for carrying knives were admissible on two bases.  First, they were capable of indicating a propensity to carry knives.  Secondly, they were capable of providing some support to the identification evidence.  

27.	The judge concluded that the probative value outweighed the prejudicial effect and that he was confident that the jury properly directed would well be able to decide the evidential value of this evidence without being distracted by it.  However, he refused to admit the appellant's previous conviction for robbery.  There was no evidence that he carried a knife at the time of the robbery and there would doubtless be a factual dispute about whether he had made a threat that he had a knife.  In relation to the co‑accused Small the judge ruled that his single conviction for possession of a knife was admissible.

28.	On the appeal against conviction, Mr Weetch, who appeared before this court as he did at trial, submitted that the judge was wrong to admit the two previous convictions and that he had failed properly and sufficiently to summarise DC Berry's identification evidence in the summing‑up.  So far as the admission of the evidence is concerned, Mr Weetch made three points.  First, the prosecution case was so weak that the admission of the previous convictions amounted to inadmissibly bolstering a weak case.  The prosecution case without the previous convictions depended on what the judge himself described as the "not straightforward" identification by DC Berry and the "coincidence of clothing style".  Second, in any event, the convictions were not of "sufficient factual similarity" to the instant case to warrant their admission.  The 2015 offences were dissimilar to the counts charged. The prosecution case at trial was that a knife was used as part of a criminal enterprise by a large group of youths to inflict injury, whereas the circumstances of the earlier offences was simple possession of a knife immediately acknowledged and shown to the police.

29.	There was, he submitted, a stark dissimilarity between the previous offending and the crimes with which the jury were concerned.  Although the judge referred to the case of Dossett, that case was support for the defence proposition that the court should be concerned to identify factual similarities between the earlier offence or offences and the charges in issue at trial: "There must be a logical basis for concluding that the previous offending shows that the defendant was more likely to be prepared to commit the specific crime in question" ‑ see Dossett at paragraph 28.

30.	Such an analysis should have resulted in the exclusion of the earlier offences since there was no similarity with the charges in counts 1 and 3.  Mr Weetch acknowledged that count 4 was a similar offence but submitted that the prosecution case on that charge was that the bladed article had been used to commit the section 18 offence as part of a large group act of violence.  That was entirely dissimilar criminality to the earlier offences.  

31.	Third, given that the issue at trial was identification, the two previous bladed article offences provided little assistance to the jury in the context of the case as a whole but were extremely prejudicial.  Although it was accepted that previous convictions may be properly admitted in support of a case involving issues of identification, the evidence of the two previous convictions was of no assistance to the jury in determining the crucial issue whether they were sure of the identification of the appellant as the youth recorded on the CCTV as having stabbed Nathaniel Belaineh.  The prejudice of the admission of the evidence outweighed its probative value and should have been excluded under section 101(3) of the Criminal Justice Act 2003 as having such an adverse effect on the fairness of the proceedings that the court ought not to have admitted it.  

32.	So far as the summing‑up is concerned, Mr Weetch submitted that in summing‑up the evidence, the judge failed to deal with the various points made by the defence in the course of the cross‑examination of DC Berry.

33.	We have considered these submissions and those of Mr Witcombe in response, both in the respondent's notice and orally this morning.

34.	So far as the first point is concerned, although the judge described the identification of DC Berry as "not straightforward", we do not consider that the prosecution reliance primarily on identification evidence made this a weak case.  DC Berry was sure of the identification of the appellant.  The jury was warned of the dangers of identification evidence in clear and appropriate terms ‑ see summing‑up page 13H to 15C.  Furthermore, the jury was able to test DC Berry's confidence in his identification by reference to the photograph and to the video recording during the cause of a 5‑day trial.  Again in the summing‑up at page 16G the jury was warned about the care they should take in carrying out their own identification.  

35.	We accept Mr Witcombe's submission that the importance of DC Berry's evidence was in putting the case in front of the jury.  Once the case was in front of the jury, the prosecution was able to put the video recording before them so that they could look at the video and form their own view.

36.	Secondly, contrary to Mr Weetch's submission, we consider that the two 2015 offences were sufficiently similar to the counts charged as to make them logically probative of a propensity to commit offences of the kind with which he was charged.  Count 4, possession of an offensive weapon, was a very similar offence.  The 2015 offences showed that he was a carrier of knives and the section 18 assault was carried out by a knife carrier.  The fact that the earlier offences were charges of possession of a knife immediately acknowledged and shown to the police was a point that could properly be made to the jury but it was not a reason for excluding the evidence.

37.	Thirdly, we accept that on the defence application to exclude the evidence, the judge was bound to consider the question that arose under section 101(3), whether the admission of the earlier 2015 convictions in proof of propensity would have had such an adverse effect on the fairness of the proceedings that the court ought to exclude it.  

38.	It is clear from the ruling ‑ page 3A to B ‑ that the judge considered this question in terms of whether the probative value outweighed its prejudicial effect.  He concluded that the jury properly directed was well able to decide the evidential value of the evidence without being distracted by it.  Provided he considered the question and answered it, this court must recognise the advantage he had as the trial judge in reaching such a conclusion.  

39.	In our view, the appellant has not shown that the evidence was wrongly admitted and accordingly we reject the first matter of complaint.

40.	We turn then to the second broad matter of complaint: that the judge failed to deal with the various points made by the defence in the course of cross‑examination.  The judge said this in relation to DC Berry:

So, cross‑examined, the evidence tested, perfectly properly.  The fact that it was something like two months between the sighting, the conversation in Wood Green and the viewing of the 'caught on camera' images was explored along with the suggestion that the CCTV image ‑ and remember, the officer ‑ I think he told us he did not actually look at the moving images, just saw the still ‑ that it was not a particularly clear image.  And he said, 'Well, I think it is' or at least sufficiently clear for him, was what he was saying, to come to the conclusion that he expressed.  And he explained to us that he thought he might have been able, might have recognised one or two other faces in the footage but did not feel confident in those identifications or recognitions.  But he was sure about this one.  And he said, in the course of his work as a police officer, he looks at an awful lot of these sort of images in these sort of circulars.  Make of that obviously what you will, keeping in mind the directions that I have given you already.  And Mr Weetch perfectly property explored the limitations that might arise in a case where a camera image is from an angle and so forth.  You have got all those matters I am sure clear in mind.

41.	We would start be observing that a summing‑up is not there simply to repeat every point made by the defence or the prosecution in the course of cross‑examination.  It is not, as Mr Weetch approached submitting, the function of a summing‑up to repeat questions and answers given during the course of the trial.

42.	One of the complaints is identified in paragraph 26E of the grounds of appeal:

Although the judge followed on from this evidence [that is to say the identification of the appellant] to sum‑up the identification of Nathan Small ‑ which all accepted was a correct identification from the CCTV still ‑ he failed to make the obvious point that this officer, PC Humphreys, had known Nathan Small for over four years and had met him on multiple occasions, as opposed to DC Berry who had met the appellant once for a few minutes over two months before his identification.

43.	In the course of the summing‑up the judge said this:

So, be careful and consider the evidence of Detective Constable Berry with that care, with great care.  The sort of issues that you will want to reflect upon ‑ consider how well he knew Mr Gaston; how long he had been with him when he saw him on the street in Wood Green in December 2016, which was in fact the sole opportunity he had had to observe him before he then saw ‑‑ as part of his ordinary, weekly or daily duties ‑ the 'caught on camera' images that were emailed to him in March, I think it was. ...  Consider the quality of the images.  

Consider the comments, the arguments of both counsel, of course.  Mr Weetch stresses to you that the CCTV still, the one that the officer looked at, is not of the best quality, nor crystal clear; that this witness ‑ a policeman as he turned out to be, as he happened to be ‑ was not somebody who had known Mr Gaston for any length of time at all. 

44.	The circumstances in which PC Humphreys identified Nathaniel Small when compared to the circumstances in which DC Berry identified the appellant was a matter that Mr Weetch was perfectly entitled to draw to the jury's attention but it was not a matter that the judge was bound to highlight in the summing‑up.  

45.	In our view, the judge's summing‑up on this part of the case was appropriate.  We would add that if counsel considers that an important point has been overlooked, he should raise the matter at a convenient moment.  In the present case, the judge specifically asked if there were any other matters that he should cover.  Counsel remained silent.  We do not accept that the judge's summing‑up was materially defective and accordingly we reject the second matter of complaint.

46.	It follows that the appeal against conviction will be dismissed.

47.	We turn then to the appeal against sentence.  Two broad points are made by Mr Weetch.  First, the extended sentence imposed on the appellant was manifestly excessive given his age, 18 years and 10 months, and his limited antecedent history.  He argued that there was no proper basis for concluding that the appellant posed a risk of further serious harm to the public in the future.  He was a young man who on any view would be serving a lengthy determinate sentence with appropriate supervision on release on licence.  

48.	Second, there was objectionable disparity between his sentence, bearing in mind that he will have to serve two thirds rather than half of the 10‑year custodial term, and that of Kyle Rose‑Green, who had changed his plea to guilty just after the PTPH.  

49.	The appellant had a number of previous convictions.  On 13 November 2015, at North London Juvenile Court, following a plea of guilty to robbery, he was given a referral order for 9 months, which was subsequently varied at North London Magistrates' Court to a youth rehabilitation order with various conditions.  On 18 December 2015, at the same court, he was sentenced to a youth rehabilitation order with supervision and exclusion requirements in relation to the two offences of possession of a bladed instrument in a public place.  These were revoked on 10 June 2016 and replaced with a detention and training order for 4 months.  These were the offences that were the subject of the prosecution application at trial.  He also had convictions for battery on 9 February 2016, 9 September 2016 and 24 January 2017, as well as convictions for possession of cannabis.  

50.	Kyle Rose‑Green, of a similar age, had two convictions comprising two offences of dishonesty: theft from a building and theft from a person in 2004 and 2016 respectively.  He had received referral orders on both occasions.  

51.	A pre‑sentence report on the appellant noted that he continued to deny involvement in the offences.  In the view of the writer of the report, the index offences demonstrated an escalation in the seriousness of his offending pattern and significant risk issues were identified which indicated that he posed a high risk of serious of harm to the public.  The risk was further increased when he was in the company of a criminal peer group and carrying a knife.  Previous assessments had shown him to be impulsive, putting little thought into his actions and lacking consequential thinking.  A serious pattern of offending was emerging involving the carrying of knives, and it was of concern that his past and present offending had occurred in the company of his peers.  He lacked insight into his offending behaviour and was in denial of the index offences.  He was assessed as presenting a high risk of reoffending.  In the opinion of the author of the report, the appellant met the dangerousness criteria.

52.	The report on Rose‑Green noted that he had no relevant antecedents.  The index offence was said to be out of character.  He was assessed as posing a high risk of serious harm to members of the public and his peer group.  However, on balance, the author of the report concluded that he did not quite meet the criteria of dangerousness.  

53.	In passing sentence, the judge set out the facts as we have already summarised them.  He described the attack as being brief, lasting only 30 seconds, but a terrifying event and involving horrible violence.  The principal victim, Nathaniel Belaineh, was stabbed brutally in the stomach by the appellant and Rose‑Green was seen lunging at him with another weapon.  He had been lucky to survive and had suffered life‑changing injuries.  He had been airlifted to hospital and had undergone several operations.  Although he chose not to co‑operate or provide a victim impact statement, a nurse had provided information about the psychological impact of the attack on him while he was in hospital.

54.	The second victim had escaped serious injury but had sustained a cut or stab to his left ear.  The judge noted and compared the antecedent histories of the appellant and Rose‑Green.  All three defendants had displayed a degree of determination and planning which hinted at real criminal sophistication beyond their years.  The offending was so serious that immediate sentences of imprisonment or detention were required.  In the case of the appellant, the judge took into account his youth.  He found the appellant to be dangerous within the meaning of the dangerousness provisions of the Criminal Justice Act 2003.  There was a significant risk of him committing further specified offences and thereby causing serious physical or psychological harm to others.  

55.	In our view, there is no justifiable criticism of the judge's approach to sentencing in this case.  He had presided over the trial and was perfectly entitled to pass an extended sentence in the case of the appellant for the reasons he gave notwithstanding his relative youth, which he specifically took into account.  

56.	We also reject the disparity argument, which effectively ignores the plea of Rose‑Green and impermissibly relies on the difference on their release dates in the light of the appellant's extended sentence.  Rose‑Green had pleaded guilty and although he had lunged at a victim, he had not made contact.  The appellant had been convicted following a trial.  He had stabbed Nathaniel Belaineh, causing serious injuries.  He had been assessed as being dangerous in the pre‑sentence report while Rose‑Green had not.

57.	For these reasons, the appeal against sentence will also be dismissed.