BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales Court of Appeal (Criminal Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Laing & Anor, R. [2013] EWCA Crim 1836 (03 October 2013)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2013/1836.html
Cite as: [2013] EWCA Crim 1836

[New search] [View without highlighting] [Printable RTF version] [Help]


Neutral Citation Number: [2013] EWCA Crim 1836
Case No: 2012/4543/C5 & 2012/4570/C5

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London, WC2A 2LL
3 October 2013

B e f o r e :

LORD JUSTICE PITCHFORD
MR JUSTICE KEITH
MR JUSTICE LEWIS

____________________

R E G I N A
v
WARREN LAING
DAMIAN LOUGHMAN

____________________

Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)

____________________

Mr A Edis QC and Mr R Simons appeared on behalf of Laing
Mr D Thomas appeared on behalf of Loughman
Miss S Whitehouse appeared on behalf of the Crown

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. LORD JUSTICE PITCHFORD: On 11th July 2012 following a trial at Manchester Crown Court before His Honour Judge Steiger QC, Warren Laing and Damian Loughman were convicted by the jury of an offence of causing grievous bodily harm with intent, contrary to section 18 Offences Against the Person Act 1861. On 30th November 2012 they were each sentenced to an extended sentence of 12 years, comprising a custodial term of seven years' imprisonment and an extended licence period of five years. Warren Laing has limited leave from the single judge to appeal against conviction. He seeks to renew those grounds upon which he was refused leave and to argue a further ground which was not before Mackay J. The single judge refused Damian Loughman leave to appeal against conviction. He now seeks an extension of time of 23 days within which to renew his application for leave to appeal.
  2. The issue in the case of the appellant Laing was identification. His grounds concern in the main the admission in evidence of an identification of him made from a crime scene CCTV film by a police officer and the subsequent treatment of that evidence both during a submission of no case to answer and in the judge's summing-up. The issue in the applicant Loughman's case was one of participation. He admitted presence at the time of the offence. He asserts in his grounds the wrongful admission of evidence which he submits was unfairly prejudicial and misdirections, omissions or prejudicial observations upon his case by the judge in his summing-up.
  3. The underlying circumstances of the offence were these. On 3rd January 2012 the victim, Garfield Johnson, was shopping in a Nisa store in Longsight, Manchester. Shortly after 1.20 pm a black Chrysler motorcar drew up outside the shop. Three men alighted from the car and went into the shop. They approached Mr Johnson who suffered a heavy blow to the face from the first of his attackers. He went to the ground where he was repeatedly kicked, he said by all three men.
  4. Three men were captured on street CCTV film leaving the shop and getting into a Chrysler car which was driven away. Mr Johnson was left suffering bilateral chemosis, that is swelling of the membrane covering the eye, together with a fracture involving the posterion medial floor and the wall of the left orbit. There was no issue at trial that really serious harm was caused and that those who carried out the attack intended to cause such harm.
  5. The street CCTV recording was recovered quickly. On the same day local police officers were asked to view the film. DC O'Connor identified the applicant Loughman. DC Carter identified the appellant Laing. DC Donnelly identified the third man, Matthews. The victim's blood was found subsequently on Matthews' clothing and Matthews later pleaded guilty to the charge.
  6. Mr Johnson was interviewed briefly on 3rd January when he was still under the effect of the drugs with which he was being treated. The following day he took part in an ABE interview recorded at the hospital. He said that the first man to approach him came in front of him, called him a "Snitch" and punched him to the face. He described this man as a black male aged about 27, slightly shorter than himself, slim, with short black hair. He was wearing a brown woolly jumper and black trousers. He had an English accent.
  7. Seen in the CCTV film was a black man wearing a brown-coloured garment with the hood up emerging from the shop immediately after the attack. He went to the driver's seat of the car and drove the car away. It was this man whom DC Carter identified as Warren Laing.
  8. A second man, said Mr Johnson, was white, aged 27 or 28, about five foot three inches in height and stocky. He wore a blue woolly jumper with a hood and possibly trainers. The applicant Loughman was identified in the CCTV film by DC O'Connor as the man wearing a short blue anorak with the hood down and light brown-coloured trousers. He emerged from the shop and entered the front passenger seat of the Chrysler.
  9. The third man was described by Mr Johnson as a black male, aged about 30, five foot nine inches in height and heavy set. He wore a black jumper. This was the man identified as Matthews. He left the shop and entered the rear nearside passenger seat of the Chrysler just before it was driven off.
  10. In the course of his interviews, Mr Johnson insisted that he did not know any of his three attackers and as far as he knew he had never seen them before.
  11. On 4th January the Chrysler car was located. It was found parked opposite and close to Mr Laing's parents' home in Brambley Avenue, Stretford. DC Carter obtained Laing's telephone number and called him. Laing told him that the keys to the car were on the estate, meaning the Coverdale Estate in Longsight. That car was already known to the police. It was a car to which it was known Laing and at least six others had access. On 5th January, Warren Laing was arrested by appointment and interviewed. He made no comment but agreed to take part in a VIPER identification procedure. For that purpose he was photographed on the same day.
  12. On 17th January a selection of photographs was made in preparation for the VIPER procedure but Mr Johnson was not asked to attend. Mr Laing's solicitors, wishing to make an application for bail, placed a little pressure on the civilian staff for an early procedure to take place. On 27th January the solicitors were informed that there would be no identification procedure because Mr Johnson would be unable to identify his attackers. He had, the solicitors were told erroneously, been hit from behind. In a witness statement made on 19th March 2012 Mr Johnson said that he had by that time been informed that Warren Laing had been identified as one of his attackers.
  13. Following requests from the defence, the prosecution disclosed the day book kept by the officer in charge of the case, DS Tyrer. In it was the following entry for 6th January:
  14. i. "DC Tyrer (OIC) informs Garfield Johnson that Warren Laing (Bob) was responsible for the assault on him. 'It was clear that Johnson was in complete shock when told it was Bob. Johnson stated that he had known Bob for a long time, he also stated that he knew Bob's father who is also a music promoter named 'Chips' Johnson. Stated he had no beef with Bob and he couldn't believe this. He said that he had seen Bob on Saturday night outside the local Premier store.'"
  15. At the commencement of the trial, Mr Simons, counsel for Mr Laing, sought the exclusion of DC Carter's evidence of identification and in the alternative a stay of the prosecution as an abuse of process of the court. His Honour Judge Steiger QC agreed to hear evidence in the absence of the jury.
  16. Garfield Johnson confirmed in evidence in the voir dire that he had provided descriptions of his attackers to the police following his arrival at Manchester Royal Infirmary. He had not obtained a good view but after probing questions said that he had been able to provide limited descriptions. He confirmed their accuracy in the course of his evidence. He did not know his attackers. Asked about his knowledge of Mr Laing, he said that they were members of the same extended family. They shared an aunt who was now deceased. They saw one another regularly and he knew Mr Laing "very, very well". He said that he could not believe it when he was told that Mr Laing had attacked him. There were, as far as he knew, no issues between them.
  17. DC Tyrer gave evidence. It was his initial view, having spoken to the officers who interviewed Mr Johnson, that a VIPER identification procedure should be followed. But having spoken to Mr Johnson personally, on 6th January, he changed his mind. As a result of what Mr Johnson told him, he said that he did not consider that the witness would be able to make any identification. He then informed Mr Johnson that Warren Laing had been identified by the police as one of his attackers. He had given Mr Johnson that information in order to explore a possible motive for the attack.
  18. We have during the course of the hearing received a transcript of the relevant parts of DC Tyrer's evidence. He explained to the judge how it was that he had discussed the circumstances of the attack with Mr Johnson, any opportunity that he may have had to take in the features of his attackers, whether he was now able to give any description of his attackers and whether in his view there was a prospect of him being able to recognise them.
  19. It was put to DC Tyrer that on 18th January he had informed Mrs Ann Marshall, a civilian employee at the VIPER suite, by telephone that on 24th January he intended to visit Mr Johnson, at which time he would arrange with Mrs Marshall a mutually convenient time for the VIPER 3 viewing. DC Tyrer denied that such a conversation had taken place. As we have observed, it was his evidence that a decision had been made many days previously that no such procedure would occur.
  20. Mrs Marshall gave evidence that a representative of Mr Laing's solicitors, Mrs Marilyn Murray, wished to accelerate the VIPER 3 procedure in order that a bail application could be made on Mr Laing's behalf. When the contents of Mrs Murray's file note for 19th January were put to Mrs Marshall, she said that she had no recollection of the conversation. She did concede that she had attempted to make contact with DC Tyrer on 24th January which, she agreed, appeared to indicate that she was following up an arrangement which earlier had been made with him.
  21. Mrs Marilyn Murray is an experienced legal executive employed by the appellant's solicitors. She gave evidence that within an hour of her meeting with Mrs Marshall on 19th January she had made a file note which she produced. It was in general in the terms which we have just described.
  22. Mr Simons submitted to the judge that contrary to the evidence of DC Tyrer, the decision not to hold an identification procedure cannot have been made as early as 6th January. If it was, then the arrangements which appear to have followed were a charade. Mr Simons' underlying argument was that Code D under the Police and Criminal Evidence Act 1984 required that an identification procedure be held. Code D paragraph 3.12 in its relevant parts provides as follows:
  23. i. "3.12 Whenever:
    ii. ...
    iii. (ii) there is a witness available, who expresses an ability to identify the suspect, or where there is a reasonable chance of the witness being able to do so, and they have not been given an opportunity to identify the suspect in any of the procedures set out in paragraphs 3.5 to 3.10 and the suspect disputes being the person the witness claims to have seen, an identification procedure shall be held unless it is not practicable or it would serve no
    iv. Useful purpose in proving or disproving whether the suspect was involved in committing the offence..."
  24. It was submitted to the judge that whatever the quality of the opportunity available to Mr Johnson to observe the features of his assailants, he had been able to provide descriptions of their ages, build, hair colouring, skin colour, height and clothing. For that reason an identification procedure should have taken place.
  25. Before the VIPER procedure could be completed, Mr Simons submitted, DC Tyrer, either deliberately or incompetently, sabotaged it by informing the witness of the identity of the suspect, a person who was in fact well-known to the witness. By this means the appellant had been deprived of the opportunity of being excluded by the witness as a suspect. Since Mr Johnson had expressed the firm view that none of his attackers was known to him, it was virtually inevitable that had an identification procedure been carried out, Mr Laing would have been exonerated.
  26. The judge gave his written reasons rejecting both of the appellant's applications on 5th July 2012. At paragraph 8 he said this:
  27. i. "8. The evidence of DC Tyrer was not wholly clear about when he had first learned of Johnson's inability to make an identification; he testified that it was on 6th January but the statement he took from Johnson on 13th March suggested an earlier date. What is clear to me is that by 6th January he was aware that (for whatever reason) Johnson would be unable to make any identification. DC Tyrer explained that once it had been resolved with DS Cowan that Johnson would not do a VIPER, he used the conversation on 6th January to flush out any possible motive; he was interested in Johnson's reaction but nothing surfaced apart from surprise."
  28. The judge held that once Mr Johnson had been told about the identification of Laing by the police, an identification procedure could not be held. He absolved DC Tyrer of any improper motive and accepted that despite the continuing arrangements made by the civilian staff towards holding the procedure, DC Tyrer himself had no intention of inviting Mr Johnson to take part in it, either on 24th January or on any later date. He did not resolve the question how it came about that those arrangements continued, despite DC Tyrer's decision that no procedure would be held, but there can be no doubt that the judge made a finding of fact in favour of DC Tyrer that first came the decision that no identification procedure could be held and second came the decision to inform Mr Johnson of Mr Laing's identification by the police as one of the attackers.
  29. The judge concluded that notwithstanding these events, Mr Laing had not lost the opportunity to challenge DC Carter's identification because Mr Johnson would be called to give evidence. Mr Laing, being well-known to Mr Johnson, he could be asked whether he was one of his attackers. (Mr Simons had the advantage of an advance run in cross-examination during the course of the voir dire. DC Carter's evidence could therefore be admitted. Any difficulty arising for the defendant in consequence of the disclosure to the witness could be dealt with in the course of the trial.) This was not therefore, in the judge's view, a case for a stay.
  30. Mr Edis QC, who now appears with Mr Simons in the appeal, no longer argues for a finding of any bad faith on the part of DC Tyrer. He concentrates upon the central issue whether there was an obligation under Code D paragraph 3.12 to hold an identification procedure. In this regard he submits that the judge failed to give his ruling on that issue.
  31. We observe that the evidence that the appellant was seeking to exclude was the identification made by DC Carter. No identification had been made by Mr Johnson. The question for the judge was whether the appellant's opportunity to challenge the correctness of DC Carter's identification had been so undermined by a breach of Code D in Mr Johnson's case that the evidence should have been excluded or the prosecution stayed.
  32. We accept Mr Edis' criticism that no ruling was made upon the issue whether Code D had been breached, but it seems to us to be implicit in the written ruling given by the judge. We are not persuaded that there was a breach of Code D. There are two reasons for this. First, at no time had Mr Johnson claimed to have seen the faces of his attackers. The opportunity he had to take in the features of his attackers was a matter which was explored by DC Tyrer on or about 6th January. Second, the judge accepted DC Tyrer's evidence that Mr Johnson told him he could make no identification of those who attacked him and, having listened to him, that DC Tyrer agreed.
  33. Assuming for the moment, however, that there was an arguable breach of Code D, the second question for the judge was whether the breach deprived the appellant of a reasonable opportunity to challenge the identification made by DC Carter. Had an identification procedure taken place and had Mr Johnson failed to identify the appellant, that would not as a matter of law have precluded the prosecution from relying on the evidence of DC Carter. A trial judge would have been required to consider whether notwithstanding the exculpatory effect of Mr Johnson's evidence, the jury could nevertheless safely conclude that DC Carter's evidence was accurate.
  34. What then was the effect of the failure to invite Mr Johnson to an identification procedure? The appellant had not in our view been deprived of the opportunity to rely upon the witness's exculpation of the appellant. On the contrary, it would emerge in the course of the trial. Accordingly, we agree with the judge that the appellant was able to mount an effective challenge and for that reason the evidence was rightly admitted and the applications properly rejected by the trial judge.
  35. We therefore turn to the second ground of appeal, namely that the judge should have acceded to a submission that the appellant had no case to answer.
  36. Mr Johnson gave evidence in the trial. His ABE interview was played as his evidence-in-chief. He agreed in cross-examination that he knew Warren Laing very well indeed. He was shocked to learn that the police had identified Mr Laing. Despite his shock, he accepted what he had been told. Mr Simons directed his specific questions to the subject of the man in the brown jumper. This was the man who according to Mr Johnson had called him a "snitch". Mr Johnson said he asked what "it" was for and the man punched him. Mr Simons put to the witness: "You have never seen that man before in your life, had you?" The witness replied: "No."
  37. In re-examination Mr Johnson said that immediately before the attack on him he had been going to the cashier and on his way he had been using his phone. Of the man in the brown top who punched him, prosecuting counsel Mr Lavery asked:
  38. i. "Q. Did you at any stage see that man's face?
    B. No, sir ... "
  39. The following exchange then took place:
  40. i. "Q. So was it Warren Laing who punched you?
    A. No, sir.
    ii. Q. Are you sure it wasn't him?
    A. No, sir, no.
    iii. Q. You are not sure it's not him?
    A. It's not Warren Laing punch me.
    iv. Q. Right and how can you say that if you did not see his face?
    A. Because what happen I know Warren Laing good, so if I see Warren Laing face I would know exactly as he punch me.
    v. Q. Yes, but this man who punched you, did you see his face?
    A. No, sir, that's what I'm said, no.
    vi. Q. Right, so I am asking you, can you say it wasn't Warren Laing?
    A. It wasn't Warren Laing.
    vii. Q. Right, and how can you say that if you didn't see his face?
    A. Because I know him, so it definitely weren't him, Warren Laing know me, I know Warren Laing so if it were Warren Laing punched me, if Warren Laing walk in the shop I could say Warren Laing punched me."
  41. There was accordingly an apparent contradiction in the witness's evidence. On the one hand he was saying that the man who punched him was not Warren Laing. On the other he was asserting only that if he had seen the man's face, which he had not, he would have known whether the man who punched him was Warren Laing. That left open the possibility that the man who first attacked Mr Johnson was indeed Warren Laing but that Mr Johnson could not say one way or the other because he did not see his face.
  42. We note that an almost identical conundrum arose from his response to a later question:
  43. i. "Q. When you say you didn't know them [ie all three men], is [it] that you didn't recognise them or you didn't see their faces?
    A. I didn't know them, I didn't see their faces, and I didn't know them. If I know them I would have said I know them."
  44. DC Carter said in evidence that when he viewed the CCTV film he at first identified Mr Loughman. He was the person of whom there was a full facial picture in close up walking towards the camera. He then asked for the film to be moved forward to concentrate on the man in the brown top. He was wearing his hood up. In the camera shot the man in the brown top can be seen moving in the general direction of the camera but the view is a partial profile and of the right side of the man's face.
  45. DC Carter said that in making his identification he relied on the man's stance, gait and facial appearance. He said on reflection that he was 100% happy with his facial recognition of the appellant. He conceded that he was aware that the car was associated with Mr Laing and that Mr Laing was a close associate of Mr Loughman, but he was satisfied that despite the inviting context he had made an accurate identification.
  46. DC Tyrer gave evidence. Mr Simons wished to cross-examine DC Tyrer upon the ground which he had covered in the voir dire. He was prevented from doing so by the judge.
  47. It is submitted by Mr Edis that Garfield Johnson had been explicit in his denial that one of his attackers was the appellant. A combination of the exculpatory evidence of the victim and the indifferent quality of DC Carter's opportunity for identification rendered the identification by DC Carter unsatisfactory and unsafe and for that reason the judge should have withdrawn the case from the jury.
  48. We do not agree. The circumstances of DC Carter's recognition were recorded and no complaint is made about this aspect of DC Carter's evidence. There was, by reason of the contradiction which we have identified, an obvious flaw in Mr Johnson's exculpation of Mr Laing. We have viewed the CCTV film. In our judgment the quality of the image is good. It does not provide a full view of the suspect's face, but in our view an adequate image of the right side of the face from which a person well-known to that suspect might be expected to make a reliable recognition.
  49. We shall come to the issue whether there was other evidence which tended to lend support to DC Carter's identification when we consider the appellant's criticisms of the summing-up.
  50. The assessment of this evidence was in our view for the jury. It is noteworthy that in none of the descriptions given by Mr Johnson did he refer to facial appearance. That is hardly surprising given his repeated insistence that he did not see their faces. It was open to the jury to conclude, given these circumstances, that Mr Johnson was mistaken in his insistence that if the man in the brown top had been Mr Laing, he would have recognised him. DC Carter on the other hand had an opportunity to view the CCTV film in controlled circumstances. He made a positive identification which in our judgment the jury could accept. For these reasons, we conclude that the judge was right to reject the submission of no case to answer.
  51. Thirdly, Mr Edis argues that the state of the evidence required careful directions to the jury which were missing from the judge's summing-up. As we have said, the identification under scrutiny was the recognition made by DC Carter from the CCTV film. This is not the classic Turnbull situation but evidence such as this has long been admitted, subject to safeguards - see Attorney General's Reference No two of 2002 [2002] EWCA Crim 2373, [2003] 1 Cr.App.R 321.
  52. The directions required by Turnbull (1977) QB 224, are to be modified as required by the circumstances of the case. In the present case there was no issue that Mr Laing was well-known to DC Carter by sight. Secondly, this was not a recognition which depended upon a short period of observation in indifferent conditions. It was made in controlled conditions from CCTV film, which we have found provided for the purpose an adequate representation of the suspect's face. The limiting factors on the value of DC Carter's identification were, it seems to us, the quality and content of the images of the suspect and the risk that even those well-known to the suspect may make a mistaken identification. The jury was not invited to reach their own conclusion about the identity of the man in the brown top and in writing Mr Edis submitted that this serves to emphasise the indifferent quality of the film. This is not an argument that we can accept. We have already referred to our view as to quality. DC Carter made his recognition from stance, gait and facial appearance. We can well understand why the view provided was regarded as sufficient for examination by a person who knew the subject, but not for the jury who did not.
  53. The judge did not give an explicit direction that the jury should examine the question whether there was a sufficient view of the suspect to render DC Carter's recognition reliable. However, the judge did direct the jury that even honest and convincing witnesses can make mistaken identifications so the jury should consider the case and the circumstances of the identification with care.
  54. We accept Mr Edis' submission that the judge's directions on this subject should have contained an explicit reference to the opportunity provided by the CCTV film to afford a reliable recognition by DC Carter. We have to consider the impact of its absence upon the safety of the verdict. First, we do not accept that there was a lack of opportunity which constituted a weakness in the identification. The view provided by the film was not perfect, but it was in our view sufficient. Second, we are informed that the subject had been the subject of examination in the course of the evidence. Third, in his own submissions to the jury, Mr Simons invited close examination of the opportunity provided by the film to enable DC Carter to make his identification. The jury had viewed the film for themselves on at least three occasions and the film was made available for their further examination if they required it.
  55. In our view, this issue must have been at the forefront of the jury's consideration of the reliability of DC Carter's recognition, even if it had not been referred to explicitly in the judge's summing-up. In our judgment, the direction that the jury should examine all aspects of the evidence of identification with care so as to exclude the possibility of an honest but mistaken identification was sufficient and the absence of a further direction did not give rise to the risk of an unsafe verdict. Further, the judge proceeded to summarise the evidence of DC Carter's knowledge of Warren Laing and of his viewing of the CCTV film on three occasions. He explained to the jury the possible danger of contextual bias, that is to say that Mr Laing's association with the Chrysler car and with Loughman may have predisposed DC Carter to the conclusion that the driver of the car was Laing. However, he rightly pointed out that the contextual bias for which Mr Simons argued applied equally to Mr Matthews and DC Carter had not purported to identify him.
  56. The judge was required to consider with the jury whether there was other evidence in the case which tended to support or to undermine the identification. The judge directed the jury that they could regard Mr Laing's association with the Chrysler car as some evidence which tended to support the identification. That of course depended upon whether the jury could safely exclude the possibility that DC Carter had jumped to a predisposed conclusion in the first place.
  57. The judge placed before the jury the competing submissions of the prosecution and the defence in this respect and instructed them to give careful consideration to the arguments on both sides. We do not accept Mr Edis' submission that the judge should have instructed the jury not to treat this evidence as supportive. In our view this too was a matter for the jury to resolve upon their assessment of the competing cases.
  58. We turn to the evidence that was capable of undermining the identification made by DC Carter. Plainly if Mr Johnson's assertion that the man in the brown top was not Warren Laing was to be taken at face value, it undermined the evidence of DC Carter. The appellant argues that this was the only safe conclusion the jury could have reached. With respect to Mr Edis' impressive argument, we do not agree. In our view Mr Johnson's evidence was equivocal for the reasons we have already identified. What was required from the jury was a close assessment of the effect of Mr Johnson's evidence.
  59. In his legal directions the judge said:
  60. i. "If you thought that Mr Garfield Johnson was exonerating the defendant Laing and doing so honestly and reliably that would undermine Mr Carter's identification. But whether it does so or not is a matter for you because you are the judges of the facts."
  61. Criticism is made of this passage on the ground that by using the word "honestly" the judge was conveying to the jury a possible motive for the evidence of Mr Johnson which revealed that he knew that Warren Laing was one of his attackers but was deliberately choosing not to name him. There was no such suggestion in the evidence and accordingly it should not have been said.
  62. In our judgment, the judge was confronting an inevitably which arose from the contradictions in Mr Johnson's evidence. Logically speaking there were only two possible reasons, on one view of the evidence, why that contradiction existed. The judge was referring to them in the course of this passage and we do not think he can be criticised for doing so. Secondly, however, its language tended to reverse the burden of proof but the judge immediately followed with the instruction: "In summary, to convict Laing, you must be sure that whatever the other evidence, Mr Carter made a correct identification in picking out Laing in the doorway of the Nisa shop." In our judgment the jury can have been in no doubt that the burden was throughout on the prosecution.
  63. Having later reminded the jury of the salient features of Mr Johnson's evidence, the judge returned to the subject of proof:
  64. i. "To summarise ... that evidence has some contradictory features and may be somewhat confusing but it is said to undermine ... the reliability of Mr Carter's identification and so you should give it full and proper consideration."
  65. In our judgment this was an accurate and fair representation of the issue that the jury had to decide.
  66. We turn to consider the effect of the judge's refusal to permit Mr Simons to cross-examine DC Tyrer upon the failure to hold an identification procedure. In Forbes [2000] UKHL 66, [2001] 1 AC 473, the appellate committee of the House of Lords confirmed that where in breach of Code D an identification procedure had not been held, but evidence of identification by the witness had been admitted, the judge should explain to the jury the manner in which the breach arose and invite them to consider the impact, if any, of that breach upon the reliability of the identification evidence. At paragraph 27, the committee held:
  67. i. " ...the jury should ordinarily be told that an identification parade enables a suspect to put the reliability of an eye-witness's identification to the test, that the suspect has lost the benefit of that safeguard and that the jury should take account of that fact in its assessment of the whole case, giving it such weight as it thinks fair. In cases where there has been an identification parade with the consent of the suspect, and the eye-witness has identified the suspect, in circumstances involving no breach of the code, the trial judge will ordinarily tell the jury that they can view the identification at the parade as strengthening the prosecution case but may also wish to alert the jury to the possible risk that the eye-witness may have identified not the culprit who committed the crime but the suspect identified by the same witness on the earlier occasion."
  68. The decision in Forbes did not apply to the circumstances which have arisen here. In the present case Garfield Johnson made no identification of any of his attackers. The prosecution was not seeking to rely upon any identification made by him. However, the failure to hold an identification procedure may not merely affect the reliability of an identification made by that witness, it may also remove an opportunity to test the reliability of an identification made by another witness.
  69. In Gojra [2010] EWCA Crim 1939, the defendant was implicated in an offence by a witness called Nawaz. The police chose not to hold an identification procedure in the case of a further witness called Haq. Mr Haq had described the suspect but did not know him. In his directions to the jury, the judge posed the question whether the failure to invite Mr Haq to an identification procedure was relevant to their fact-finding in view of the fact that an identification had already been made by Mr Nawaz. At paragraph 74 of the judgment given on behalf of the court by Rafferty J (as she then was), she said:
  70. i. "74. This in our judgment was a misdirection. It was not a question of whether it were desirable to hold a parade, rather there existed a positive obligation to hold one. Otherwise, once there was one positive identification the police could avoid the risk of another witness failing to make a positive identification, thus undermining their case. The judge's summing-up may have given the impression that the failure to hold an ID procedure was of little consequence whereas he should have given a full Forbes direction."
  71. At paragraph 75 she continued:
  72. i. "75 ... Be that as it may, the consequential question is the effect on the safety of the conviction of the absence in the summing-up of mention of the breaches of the Code. That counsel for Gojra had addressed the jury on it is no answer - Gojra was entitled to the imprimatur of the court. The jury should have been told of the protection extended to a suspect by the statutory scheme. There should have been set out a reasoned path through the provisions so as to put in context the possible prejudice to Gojra as a consequence of the breach. The process did not need to be complex or wordy but it did need to be clear and unequivocal. Such guidance might have affected the jury's approach to its task and we are persuaded that on this Ground Gojra must succeed ..."
  73. Mr Edis submits that exactly the same reasoning applies to the present appeal. Mr Simons should have been permitted to explore with DC Tyrer the decision to hold and then to withhold the identification procedure for Mr Johnson. Mr Laing was entitled to the judge's direction that the police were in breach of Code D. In any event, he should have permitted Mr Simons to explore the matter before the jury. He should have explained, in the event that the jury found there had been a breach, how that failure may have impacted upon the reliability of DC Carter's evidence.
  74. We have already indicated our judgment that a breach of Code D has not been established. In our judgment, even if there was a breach of Code D, there was an important factual distinction between Gojra and the present case which goes to the safety of the verdict. Mr Johnson could be asked with little risk of an unwelcome answer and was asked in cross-examination whether Warren Laing was one of his attackers. He said that he was not. In other words, the appellant was in at least as good a position as he would have been had Mr Johnson failed to identify him in a VIPER procedure. However, as we have said, it was a matter for the jury to decide whether Mr Johnson really was trying to exonerate Mr Laing and if so whether that was because he saw the first attacker and knew it was not Laing. The alternative, of which it seems to us the jury must have been sure, is that Mr Johnson could not exonerate Mr Laing because he had not sufficient opportunity to take in his features. We do not consider that the judge's refusal to permit cross-examination of DC Tyrer on the Code D issue or the absence of an adapted Forbes direction had any impact on the safety of the verdict. Instead, the judge directed the jury that if the jury concluded that Mr Johnson could and did exonerate Mr Laing, then the evidence of DC Carter was undermined.
  75. We turn therefore to further matters. Relevant to the prosecution case was a schedule of sightings of the defendants with and without Matthews and others during the period between 5th June 2008 and 14th December 2011. On eight of those occasions there had been sightings of the Chrysler car in which was one or other or both of the defendants. The judge summarised the effect of the schedule in his summing-up. The defendants were spotted on 59 occasions. On 50 of them Laing was in a vehicle. On 11 of them Mr Laing was seen in the company with Mr Loughman and Mr Matthews.
  76. This evidence was relevant to the prosecution because it established a strong link between Warren Laing and the car and Warren Laing and Mr Loughman which was capable, depending on the jury's view, of supporting DC Carter's identification. It is submitted by Mr Edis that the evidence was unfairly prejudicial by reason of its capacity to generate speculation that Mr Laing and the others were under police surveillance. However, Mr Edis also submits that had the judge given an explicit direction warning them against speculation, that would have served only to emphasise the point. It seems to us that while there can be no doubt that the schedule demonstrated that the sighting of the car was worthy of a police record, it does not seem to us that it can have provided any clue to the jury of any activity in which it or its occupants were engaged, which was of interest to the police, or indeed that they or the vehicle were under specific surveillance. In our judgment, and in any event, the jury's attention in this trial was correctly focused on the issue of identification. We have no reason to suspect that the list of sightings affected or could have affected the safety of the verdict.
  77. We turn to additional criticisms of the summing-up. Mr Laing elected not to give evidence. In the course of directing the jury the judge posed the question whether the only sensible explanation for a defendant not to give evidence was "that he has no confidence in any innocent explanation." Mr Edis correctly points out that this is an inaccurate version of the conventional direction which poses the question whether the only sensible explanation is that the defendant has no answer to the prosecution case or none that would stand up to scrutiny. We accept that read literally the reader may be misled into thinking that if the defendant has an innocent explanation but does not choose to give that explanation in evidence because he does not think the jury will believe it, that may be a reason for regarding his failure as some support for the prosecution case. However, we are quite sure that the jury would not have taken the judge's words literally. At page 6, in connection with the same direction, the judge added these words:
  78. i. "Now if you were sure of those two things, that there was a case calling for an explanation, and secondly, that the only sensible inference is that the defendants have none, then you could take it as some evidence of guilt."
  79. In our view, the jury would have understood the judge to mean that if the defendant had no innocent explanation to give they could infer a motive not to give evidence which may provide some support for the prosecution case.
  80. Lastly, Mr Laing points to two passages in the summing-up in which the judge drew attention to the fact that he did not respond to questions in interview. The first complaint made is that Mr Laing had not relied at trial upon any fact which he could reasonably have been expected to mention when questioned. He simply put the prosecution to proof of identification and advanced no particular alibi. There was therefore no occasion for the judge to draw attention to the appellant's silence in interview. However, the context in which the judge made these remarks was the absence of the defendants from the witness box. He was making the point that the jury had heard from the appellant no explanation at any stage of the proceedings. In our view, in that context, his words added nothing to the effect of the direction concerning the appellant's decision not to give evidence and it did not affect the safety of the verdict.
  81. The second criticism is that the judge observed that Mr Loughman had by not entering the witness box avoided the question "who was driving the car?" Mr Edis submits that this direction was capable of having an adverse and prejudicial impact upon the case of Mr Laing. We agree. Where there is evidence that defences are orchestrated, each defendant protecting the interests of the others, it may well be that such a comment would be justifiable. But that was not the case being advanced by the prosecution here. In our view the judge's comment should not have been made. However, the jury was informed that no fewer than seven people were associated by the police with the car and it seems to us that the jury must have concluded, if they put their minds to it, that Mr Loughman could have had a motive not to identify the driver, whoever he was, and it does not follow that the judge's remark made in the context of Mr Loughman's case had any impact upon this appellant.
  82. We therefore conclude that each of the grounds advanced by Mr Edis on behalf of Mr Laing should be rejected and accordingly his appeal against conviction is dismissed.
  83. We now turn to Mr Loughman's renewed grounds of appeal. We propose to consider their merits. He first advances one of the grounds on which Mr Laing relied, namely that the prosecution should not have been permitted to adduce the evidence of sightings of Mr Loughman in connection with the Chrysler car. For the reasons we have already given, we conclude that the evidence was properly admitted. In Mr Loughman's case he had in any event admitted presence at the scene on 3rd January. He also accepted his association with Mr Laing. We do not consider that the schedule was unfairly prejudicial to Mr Loughman. It can have had no effect, in our view, upon the issue which arose in his case which was whether he participated in the attack on Mr Johnson. Plainly if the evidence for the prosecution was in general accepted, it must have been conceded by Mr Loughman that others had attacked Mr Johnson while he was present. He was therefore, but only to that extent, implicated. The issue of participation depended entirely on the jury's assessment of Mr Johnson's evidence that he was attacked by three rather than any lesser number of men.
  84. Second, Mr Thomas indicated to the judge that Mr Loughman would not be giving evidence. The jury were outside court waiting for the day's proceedings to commence. Mr Lavery, for the prosecution, sought time to collect his thoughts before making his final speech and the judge gave him until 2.00 pm for that purpose. In the meantime, however, he invited the jury into court in order that he could undergo the process of asking the questions of counsel required of him by the Consolidated Practice Direction and when introducing that subject to the jury he said "a slightly unusual development" had occurred. Mr Thomas argues that the jury may have interpreted the judge's remark adversely to the applicant. We simply cannot accept this submission. The remark said nothing at all about the merits or otherwise of the development to which the judge was referring. It simply introduced the situation in which the judge would have to ask specific questions of counsel and subsequently upon which he would have to give directions to the jury.
  85. Third, it is argued that the judge erred when suggesting to the jury that the motive for the attack was revenge or punishment. It is said that this remark was not open to the judge in the absence of evidence. In our view there was evidence which justified the judge's use of these words. Mr Johnson gave evidence that he was accused of being a "snitch" at the time when he suffered the first blow to his face. Secondly, Mr Johnson suffered a severe beating while defenceless at the hands of three men who had sought him out in a shop in order to attack him.
  86. Finally, it is argued that the judge failed to remind the jury that Mr Johnson could only identify the number of people who attacked him by reference to the number who entered the shop and the nature of the kicking he received. In our view the judge was not obliged to describe every nuance of the evidence. He made it quite clear to the jury that the issue in the applicant's case was whether he had participated in the joint enterprise to attack Mr Johnson. They could see Mr Loughman outside the shop on the CCTV film. They had the evidence of Mr Johnson as to his impression of the attack upon him. In our view the jury must have had Mr Thomas's arguments on the evidence in Mr Loughman's case well in mind when they retired to consider the issue of participation.
  87. We therefore agree with the single judge that none of these grounds impact upon the safety of the verdict in Loughman's case and the renewed application is refused.


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2013/1836.html