No: 9803626 W5

IN THE COURT OF APPEAL
CRIMINAL DIVISION
                          Royal Courts of Justice
                          The Strand
                          London WC2
 
                          Thursday 18th March 1999
 
                    B E F O R E :

                 LORD JUSTICE ROCH  
              MR JUSTICE RICHARDS
 
                         and
 
                HIS HONOUR COLSTON QC
         (Acting as a judge of the CACD)  
              ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
 
                    R E G I N A

                       ‑ v ‑

               ALEXANDER PATRICK
 
              ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
   Computer Aided Transcript of the Stenograph Notes of
           Smith Bernal Reporting Limited
          180 Fleet Street, London EC4A 2HD
    Tel No: 0171 421 4040   Fax No: 0171 831 8838
         (Official Shorthand Writers to the Court)
              ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
 
MISS R BRIGHT appeared on behalf of the Appellant
MR J WIGODER appeared on behalf of the Crown
 
              ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
                      JUDGMENT
             (As Approved by the Court)
              ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
                   Crown Copyright 
 
                                Thursday 18th March 1999
 
                      JUDGMENT
 
LORD JUSTICE ROCH:  I will ask Mr Justice Richards to give the judgment of the Court.
 
MR JUSTICE RICHARDS:  On 19th May 1998, at Lincoln Crown Court, Alexander Patrick was convicted on a count of arson following a trial presided over by his Honour Judge Teare.  He was sentenced to five years' imprisonment to be served consecutively to a four year sentence imposed on 2nd January 1998 in respect of two counts of burglary.  He now appeals against conviction by leave of the Single Judge.
      There is a link between one of the offences of burglary for which the appellant had previously been sentenced and the charge of arson.
      The burglary had been committed on 2nd December 1996 at a house near Lincoln.  The principal prosecution witness in respect of the burglary was a Mr Lawson, a neighbour who had disturbed the burglar, chased him and noted his car registration number.  Mr Lawson had picked out the appellant at an identification parade on 3rd March 1997. 
      The prosecution case in the arson proceedings was that on the evening of 12th September 1997, before the trial for the burglary, the appellant had tried to gain entry into Mr Lawson's house, had been confronted by him and run away, and had returned about three hours later and set fire to Mr Lawson's pigeon loft, destroying it and most of his pigeons.  It was alleged that the offence was committed in order to intimidate Mr Lawson into not giving evidence in the burglary trial.
      When it came to the arson trial there were two main but related issues ‑ the identification of the appellant by Mr Lawson and the appellant's defence of alibi.
      Mrs Lawson gave evidence that on the evening of 12th September 1997 she heard someone trying to get in through the front door at some time between 9.30pm and 10.20pm.  It was timed by reference to a television programme she was watching.  She saw someone round the back of the house and telephoned her husband.  He was at the pub and ran straight home.  It took him about five minutes.  It was on his return home that the disputed identification of the appellant took place.
      In the course of his evidence Mr Lawson first described the burglary incident in December 1996.  He said that he had disturbed a burglar and given chase.  He had reported the incident to the police and had given a description of the burglar as a stocky male wearing a dark jacket, jeans and wearing a baseball cap.  He said, "He was a Scotsman because on that occasion he spoke to me".  He chased the burglar but did not catch him, and then, as we have indicated, in March 1997 he picked out the appellant on an identification parade as the man he had seen at the time of the incident in December 1996.
      On 12th September 1997, having returned home in response to his wife's telephone call, he went round the side of his house to investigate the noises his wife had heard.  He said:
"I went towards the far corner of the bungalow and I met Alexander Patrick coming round the corner.  He was wearing the very same clothes as on the first incident: a jacket, trainers, jeans and a baseball cap.  I was six feet away, no more.  As he came to the corner, he was at the sideways angle.  I saw the side of his face, the profile.  There is a street light on the corner of the bungalow.  Visibility is very good down the side of the bungalow.  There was nothing obstructing the view.  He immediately spun round when I called his name.  I said, "It's you, you bastard, Patrick", and he spun round to go across the patio.  He was in my sight for not very long.  I got a good look at him.  I was sure it was him.  I would know him anywhere." 
      Mr Lawson went on to say that at some point after midnight, having gone to bed, he got up to go to the toilet and saw his pigeon loft ablaze.
      In cross‑examination he accepted that it was  possible to make mistakes in describing somebody.  He also accepted that on a previous occasion he had said that the appellant had a northern accent.  As to the present occasion, he said he was not really sure how long he had had the man in view.  At first he stated that it was not just a matter of seconds, but later he said, "I saw the side of his face.  It's correct that it might only have been a matter of seconds", but he said that he could remember it as if it were yesterday.  He also accepted that on arriving at the house he was expecting to find the appellant there.  He had seen a car in the same place as he had seen a car when the burglary had occurred, and he thought that it was the appellant's car on this occasion.  He acknowledged, however, that he was in fact totally wrong in anticipating that.
      The only other prosecution evidence it is necessary to note concerned a baseball cap that had been seen and photographed by the police in the back of the appellant's car about two weeks before the incident on 12th September at a time when they had been investigating a separate matter.  In interview the appellant had denied all knowledge of any such cap and had stated that he had never owned one.
      At the close of the prosecution case counsel for  the appellant made a submission of no case to answer on the basis that the identification evidence was insufficient to go before the jury in accordance with the guidelines in Turnbull (1976) 63 Cr.App.R. 132.  In rejecting that submission, the judge stated that in his judgment at that stage, but without coming to any assessment of the facts in relation to which the jury must decide, Mr Lawson was a convincing witness.  He went on to consider the possibility that a convincing witness may be mistaken.  As to supporting matters, he said that questions of motive and opportunity might be matters for the jury if the case went further.  He did not think that the similarity of clothing was a very good point because most burglars in his experience wore jeans and trainers and probably a jacket at that time of year, but he felt that the baseball cap might provide some support, in particular in view of the apparent lies of the defendant as regards possession of that baseball cap.  The judge accepted that the case fell at the bottom end, but took the view that there was sufficient evidence to go before the jury.
      The trial then continued, and the defendant gave evidence.  He denied any involvement in the offence.  He said that he and his fiancee had gone to Scotland on Wednesday 10th September to stay at his mother's flat.  He could not drive because of an injury to his stomach and a disability to his hand.  His fiancee had driven. When they got to his mother's flat, they told a Mr and Mrs McGaskill, who lived in the flat above, and Mrs Mehall, who lived across the road, so that those persons would not be surprised that somebody was in occupation of the flat.
      On Friday 12th September, the day of the incident, they went to Ayr, then back to Kilmarnock.  The appellant had drawn a cheque at the Halifax Building Society in Ayr and had arrived in Kilmarnock at about teatime.  He said that at some time after 6 o'clock he went to the fish and chip shop, then returned to his mother's flat, where he stayed all evening, and went to bed at about 10.30pm.  There was an argument in the flat upstairs between 11.00pm and 1.00am.  He got up at 8 o'clock the next morning and spoke to someone when he went to the shop.  He and his fiancee had gone out at lunchtime.  He returned to Lincoln the following Monday, 15th September, and the police then came and searched his house before he had had any contact with his family or friends.
      That was his account involving the defence of alibi.  He also said that the baseball cap that the police had seen in the back of his car was in fact his  brother‑in‑law's cap.  His brother‑in‑law had left it there, and the appellant did not bring it to mind at all when questioned about it in his interview.  He stated that his brother‑in‑law was not now talking to him, which was why he had not come to give evidence.
      In cross‑examination he said that the reason why his fiancee, who sat at the back of the court for at least part of the trial, had not been called to give evidence about where he had been on the night of 12th September was that she suffered badly with her nerves in relation to the investigation.  She was now under a community psychiatric nurse and suffered from panic attacks.
      A further material item of evidence given by the appellant was that it was a six hour journey by road from Kilmarnock to Lincoln, that is to say the area in which Mr Lawson's house was located.  The appellant said that he had travelled the journey a number of times.  It was a bad road and always busy.
      Evidence was given in support of the appellant's alibi.  Mr and Mrs McGaskill, who lived upstairs, and Mrs Mehall, confirmed that the appellant arrived at the flat in Kilmarnock on Wednesday 10th September and that the appellant's car had remained there throughout the relevant period.  They also confirmed that they had had  a row on the night of 12th September between 11.00pm and 1.45am.  Mrs Mehall had seen the appellant between 9.00am and 10.00am on Saturday 13th September, and had seen him leaving at lunchtime.
      The statements were also read of two ladies who worked in the fish and chip shop to which the appellant said he went on the evening of Friday 12th September. One was Rena Spaniola, who worked there every night except Tuesday.  She was shown a photograph which included the appellant.  She immediately recognised him as a person whom she had seen in the shop.  She said it could have been Wednesday, Thursday or Friday.  She was not sure of the timing, but she worked there between 4.30pm and 11.30pm on those nights.  The other assistant was Jeanette Burtonccini, who worked at the chip shop on Monday and Friday between 4.30pm and 11.00pm.  She was shown a photograph which included the appellant.  She recognised him without hesitation, and was certain that he had seen him recently.  She could not say if it was on the Monday or Friday, but she said if it was a Friday she thought it would have been Friday 12th September.
      The other relevant item of evidence again tending to support the appellant's account was an admission by the prosecution that the appellant had made a cash withdrawal over the counter at the Halifax Building  Society in Ayr at 12.24pm on 12th September.
      Turning to the grounds of the appeal against conviction, they relate, first, to the identification issue, and in particular the judge's ruling that there was a case to answer and, secondly, to the way in which the judge approached the alibi evidence in his summing‑up.  However, the Single Judge gave leave to appeal only on the issue of alibi.  Miss Bright, for the appellant, has therefore advanced submissions on that issue but has, in addition, renewed an application for leave to appeal on the issue of identification.
      The matters raised in relation to identification are said also to be relevant to the grounds on which leave has been granted, and therefore to affect the safety of the conviction.
      In relation to identification, the points advanced are essentially as follows.  First, it is accepted that Mr Lawson purported to recognise the appellant on the basis of having seen him on two previous occasions.  It is said that the first sighting occurred some ten months earlier at night during a chase and lasted no more than seconds, and the second sighting was at the identification parade in March 1997, some six months before the incident in question.  This, it is submitted, was a recognition at the very lowest end of the scale;  far removed from, for example, recognising a friend or relative.  It is said in particular that the circumstances of the sighting on 12th September itself were difficult and amounted to no more than a fleeting glance.  We are reminded that Mr Lawson himself had been mistaken on a point of identification on a previous occasion, namely his assertion to one police officer that the appellant had a northern accent.  He had said to another that the man in question had a Scots accent, which the appellant did have.  Mr Lawson had also accepted in the course of his evidence that he was expecting to find the appellant at the scene before he got there.  That, too, it is submitted should cause one to be very cautious about the nature of his identification.
      It is said that the identification appears at least in part to have been based on items of clothing which were unexceptional and which the judge, in ruling on the submission of no case, had said were of a kind worn by most burglars.  No items of clothing matching the descriptions given had in fact been found at appellant's home address.
      As to the baseball cap, it was not strictly true that the appellant had admitted lying about it.  What he had said was that he had forgotten about the cap.  Further, the cap was no more distinctive than the other items of clothing said to be of a kind worn by most burglars.  In all the circumstances, it is submitted that the evidence at the close of the prosecution case was so weak the case should not have been left to the jury.
      As to alibi, it is accepted on behalf of the appellant that the judge correctly directed the jury that the burden of proof lay on the prosecution to disprove the appellant's alibi.  Indeed, the judge repeated this emphatically in his summing‑up.  However, criticism is made of the fact that the judge did not direct the jury as to the effect of rejecting the alibi if they were to reject it.  They should have been told, but were not told, that an alibi may sometimes be invented to bolster a genuine defence and that a false alibi does not therefore in itself denote guilt, in effect a Lucas direction aimed at the alibi issue.
      In support of that submission we have been referred to R. v. Lesley (1996) 1 Cr.App.R. 39, and in particular to a passage in the judgment of Henry LJ at page 50B to C.  In that passage reference was made to the direction given by the judge in that case as to the notice of alibi.  Henry LJ went on:
"That direction started conventionally with the direction that the prosecution had to disprove it.  But  the judge conspicuously did not add any passage to the effect that an alibi is sometimes invented to bolster a true defence as the Judicial Studies Board Specimen Direction provides.  We think that he should have done so, and it was a misdirection not to...
 
... The failed alibi direction is short and simple.  It should routinely be given.
 
In our judgment, a failure to give such a direction does not automatically render the conviction unsafe.  All depends on the facts of each case and the strength of the evidence." 
      As has been pointed out to us, it was also stressed in Turnbull itself, at page 139 of the report, that in a case involving identification care should be taken by the judge when directing the jury about the support for an identification that may be derived from the rejection of an alibi.
      It is said that the need for a full direction is all the more important where, as here, the prosecution were going so far as to assert that if the appellant was clever enough to construct the alibi for himself, he was certainly clever enough to dispose of any clothing which might identify him, though he had fallen down in relation to the baseball cap.  It is also pointed out that the judge did give a proper direction as to the approach towards lies in relation to the baseball cap, by contrast, it is said, with the absence of such a direction in relation to the alibi defence.
      We should mention a number of other criticisms of  the judge's general treatment of the alibi evidence.  It is submitted in particular that in referring in the course of his summing‑up to the failure of the appellant's fiancee to give the vital evidence about where he had been on the night of 12th September, the judge created a real risk that the jury would think that the burden of proof was reversed in relation to that particular aspect of the case.  We say at once that we find that submission untenable given the judge's repeated and clear direction as to the burden of proof with regard to alibi, and the fact that in the passage referred to he was simply recording a point properly put to the appellant in cross‑examination and the appellant's response to that point.
      It is also said that on the prosecution case there were two separate incidents, namely the identification of the appellant at about 10.30pm and the setting alight of the pigeon loft some hours later, after the area had been searched and the police had even checked whether the appellant was at his own home.  The submission is made that if the jury concluded that the identification of the appellant was correct, it still did not inevitably follow that the appellant set fire to the pigeon loft those hours later.  That is said to have made it all the more important for the judge to deal  fully with alibi.
      Again we say immediately that we find this a difficult argument to follow.  The principal question for the jury was whether the appellant was correctly identified by Mr Lawson at about 10.30pm or whether the appellant's account of where he was at that time was, or might be, true.  If the appellant was correctly identified by Mr Lawson, then there was no possibility of his alibi defence prevailing as regards the time of the fire.  Whether, in those circumstances, he was the person who had set fire to the pigeon loft was a separate question and was a matter for the jury to decide, as the judge stressed in his summing‑up. However, in the circumstances we have no hesitation in agreeing with the judge's comment to the jury that they might feel sure that the person who was around the house at 10.30pm was the same person who set fire to the pigeon loft later.
      Returning then to Miss Bright's principal submissions with regard to alibi, we accept, and it is common ground, that the judge did not give a full direction in this case in relation to the alibi defence.
      Mr Wigoder, for the Crown, submits that the full direction was not essential in this case.  He has taken  us to R. v. Harron (1996) 2 Cr.App.R. 457.  In that case the Court stated that where the evidence of witnesses for the Crown proving guilt is in direct and irreconcilable conflict with the evidence of the defendant and his witnesses, the jury have, as a matter of logic and common sense, to decide which witnesses are telling the truth.  If they accept the evidence of the prosecution witnesses, that necessarily involves a conclusion that the evidence of the defendant is untrue and that the defendant is therefore lying.  That is not a situation where any distinction exists between the issue of guilt and the issue of lies, and accordingly the Court held it is unnecessary in those circumstances to give a Lucas direction.
      In the present case there may, as a matter of logic, have been room for the possibility that the alibi was false yet Mr Lawson was mistaken in his identification of the appellant.  As a matter of practical reality and common sense, however, given the way in which the case was presented, the only basis upon which the jury could have rejected the alibi was that they were satisfied of the correctness of Mr Lawson's identification evidence.  As the judge said early in his summing‑up:
"This case depends wholly on the correctness of Mr Lawson's evidence which the defence alleges to be  mistaken."
      Later he reminded the jury that they should take his warning about identification evidence into account and "look at it very carefully before you go on to consider anything else in the case".
      There was, as it seems to us, no danger of the jury rejecting the alibi for reasons unconnected with their acceptance of Mr Lawson's evidence and of their then being led by their rejection of the alibi into accepting the alibi evidence when otherwise they were unsure of it.  Nor is there any force in the point that the prosecution were using the falsity of the alibi in relation to a collateral issue by saying that if the appellant was clever enough to invent a false alibi he was clever enough to dispose of clothing that might identify him.
      In the respects to which we have referred, it seems to us that this case does fall within the scope of the reasoning in Harron.  There was here no realistic distinction between the issue of guilt and the issue of lies in relation to the alibi.  The circumstances are, for that reason, distinguishable from those which prompted the Court in Lesley to hold that such a direction should have been given in the context of an identification case. 
      By contrast, the allegation that the appellant had lied in relation to the baseball cap was truly a separate and collateral matter in respect of which a Lucas direction was plainly required and was duly given.  For the reasons we have given, we do not accept that it was necessary to give a corresponding direction in relation to alibi or that the omission to do so was capable of rendering the conviction unsafe.
      We have also given careful consideration to another feature of the alibi defence.  Piecing together various aspects of the evidence relating to alibi, including the evidence of the fish and chip shop ladies and the appellant's evidence as to the time it would have taken to travel from Kilmarnock to Lincoln, a colourable case can be constructed in favour of the correctness of the alibi.  We are told, unsurprisingly, that that case was pressed in submissions on behalf of the appellant before the jury.  The jury must, however, have rejected it.  They did so after being reminded of all the material parts of the evidence in the course of the judge's summing‑up and the evidence read out to them at their request after they had retired to consider their verdict.  There is no going behind a finding of that kind by a properly directed jury.  We do not therefore regard this matter as a ground for concluding  that the conviction was unsafe.  On the contrary, the fact that the evidence was dealt with as fully as it was in the summing‑up and in response to the jury's request, yet the jury rejected the alibi, tends to reinforce the safety of the conviction.
      As to the identification evidence, the judge said in his ruling on the submission of no case that the circumstances fell at the bottom end of those in which, in accordance with the Turnbull guidelines, the case could properly be left to the jury.
      That may have been to understate the strength of the identification evidence, given the nature of the previous occasions when Mr Lawson had identified the appellant and had an opportunity to see the appellant, and the nature of the evidence that Mr Lawson gave as to his sighting of the appellant on the evening of 12th September.
      In any event, we have come to the clear view that the judge was right to reject the submission of no case and to allow the matter to proceed.  There was plainly sufficient evidence for the case to be left to the jury.  Once the case passed that threshold, the assessment of the identification evidence in the context of the evidence as a whole, including that given by of and on behalf of the appellant, was a matter for the  jury.  No criticism is or could be made of the way in which the judge directed the jury or summed up the evidence on this issue.
      In those circumstances the renewed application for leave to appeal in relation to the issue of identification is refused.
      Otherwise, for the reasons that we have given, the appeal against conviction is dismissed.
 
MISS BRIGHT:  My Lord, the next matter to deal with is that of the appeal against sentence.
 
                Sentence appeal heard
 
LORD JUSTICE ROCH:  I will ask Mr Justice Richards to give the judgment of the court.
 
MR JUSTICE RICHARDS:  This Court has just given judgment dismissing Mr Patrick's appeal against conviction.  We refer to that judgment for the full background to the case.
      The appellant was sentenced on 19th May 1998 in the Crown Court at Lincoln to five years' imprisonment for an offence of arson, that sentence to be served consecutively to a four year sentence already imposed in  respect of the two counts of burglary, thereby making a nine year term.  He appeals against sentence by leave of the Single Judge.
      In sentencing him the judge referred to the offence in question as "a mean and despicable" one, destroying not only the pigeon loft, but the life work of Mr Lawson.  The judge was satisfied that the purpose was to deter Mr Lawson from giving evidence against him in the burglary trial.  He stated that offences of interference with, and intimidation of, witnesses must be punished severely.  The appellant lacked the mitigation of a plea of guilty or of good character. Indeed, he had a very bad criminal record.
      We endorse all of the judge's observations.  We also accept that the judge was right to make the sentence for arson consecutive, a point on which no issue is taken on his behalf in this appeal.  We are also of the view that a sentence of five years for this very nasty offence, viewed in isolation, could not be faulted.
      The only question is whether the total term of nine years resulting from the addition of the five year sentence for arson to the existing four year sentence for the burglary offences is unduly long having regard to the overall criminality of the appellant's conduct. 
      Not without a considerable degree of hesitation we have come to the conclusion that it is.  In our view a total term of seven and a half years, that is to say three and a half years for the arson offence consecutive to the existing four years for the burglary offences, would have been an appropriate term and one commensurate with the overall seriousness of the criminal conduct. We will therefore allow the appeal against sentence to the extent of quashing the sentence of five years and substituting a sentence of three and a half years' imprisonment, again to be consecutive to the existing term of four years for the two offences of burglary.