Case No: 99/6552/Z4
 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL

Friday 8th December 2000

B e f o r e :

LORD JUSTICE KENNEDY
MR JUSTICE LONGMORE
and 
MR JUSTICE OUSELEY

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	R		
	-v -		
	Michael Rowe		Appellant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
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Mr Andrew Nuttall ( appeared for the appellant)
Mr R. Calder Jose ( appeared for the respondent)

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Judgment
As Approved by the Court
Crown Copyright ©

Lord Justice Kennedy:
1.	This case comes before us having been referred to the court by the Criminal Cases Review Commission pursuant to the Criminal Appeal Act 1995.
Proceedings
2.	On 21st June 1996 in the Crown Court at Nottingham this appellant was convicted of robbery and possessing a firearm or imitation firearm with intent to cause another to believe that unlawful violence would be used against them.  He was sentenced to eight years imprisonment for the robbery, and five years imprisonment concurrent for the firearms offence.
3.	He appealed against conviction on three grounds, the first of which related to the inadequacy of the trial judge’s direction in relation to identification.  The appeal was heard by this court, differently constituted, on 6th November 1997 and the appeal was dismissed.  
4.	On 3rd June 1998 the appellant applied to the Criminal Cases Review Commission which, having investigated the matter, referred the case back to this court on 29th October 1999.  No issue arises in relation to what were originally the second and third grounds of appeal, and we say no more about them, but it is contended that there is one piece of fresh information now available which, taken together with the shortcomings in the direction recognised by this court in 1997, and one other shortcoming now identified, renders the conviction unsafe. 
The Robbery.
5.	The appellant is 39 years of age, and for about two years up to 1989 he worked in the upstairs stockroom at the Index Catalogue Shop, Lister Gate, Nottingham.  Thereafter he called in from time to time to see his former work mates, including Mrs Martin and Miss Sheard.  His last visit was some three months or so prior to Friday 15th December 1995.  That is significant because it seems clear that when the premises were robbed on that date the robber had some familiarity with the closing procedures and with the lay-out of the premises.  
6.	At about 5.40 pm Mrs Martin and Miss Sheard were closing up.  There was no particular security to prevent people entering when the shop was due to close, and Mrs Martin was in the shop dealing with paper work, the only light being where she was at work.  She became aware of a man in the shop who said “get through the doors”, meaning the doors at the back of the shop leading to the cash office.  The man apparently knew that part of the lay-out because he said “get into the office, the cash office”, and gestured to where it was.  Mrs Martin said that as soon as they got into the office area although the robber was disguised she was able to recognise him as the appellant.  She said he was wearing a black woolly hat pulled down to conceal his hair, and had a black woollen scarf across his face over his nose and under his glasses, which had rectangular frames.  He was wearing a dark bomber jacket like one she was later shown, he was not wearing gloves, so she could see the long thin fingers and chewed down nails on his left hand.  They were in the same condition as when the appellant had worked in the stockroom.  According to Mrs Martin she was so sure of her identification that she addressed the robber by name, saying “Michael, what are you doing, you frightened me.”  He did not reply but looked at her in a way that indicated acknowledgement that she had recognised him.  
7.	She then saw a gun in his right hand, and screamed.  A later witness, a friend of the appellant, Mr Towle, provided a drawing of a metal gun which the appellant had owned, and Mrs Martin said that the gun she saw was that type of gun.  When she screamed Miss Sheard appeared.  They were both told to get into the cash office, and the robber then stood in the door.  Mrs Martin was told to get the money.  The alarm on the safe had already been set, and she went out to get the key.  As she did so she took the opportunity to press a panic button by the counter.  That was activated at 5.41 pm.  She opened the safe, and gave the robber two bags each containing 500 £1 coins, which went into a carrier bag.  The robber then told the two women to get into the office and left through the back fire doors, thus demonstrating again his familiarity with the premises.  When they were sure he had gone Mrs Martin pressed another panic button and dialled “999”, whereupon the police arrived.  The whole episode had lasted, Mrs Martin thought, about 4 minutes.  During that time the robber had spoken several times and Mrs Martin said she recognised his voice.  “It was not distorted, it wasn’t muffled, it was very clear”.  If the robber was wearing a ring she didn’t see it.  
8.	Rebecca Sheard was in the computer room when she heard Mrs Martin scream, and ran to find her and the robber in the cash office.  Her account of what happened thereafter is the same as that of Mrs Martin, but she said, “I recognised him as soon as I was close enough to see him, to see his eyes, and by his voice”.  She use to spend her breaks and her dinner hour with the appellant when he worked in the shop, and she classed him as a friend.  She thought that the gun may or may not have been in his left hand, and that he was wearing a balaclava rather than a woolly hat, but she could see the glasses.  They were “square with metal rims”.  He was demanding money and encouraging Mrs Martin to hurry up. “He never tried to disguise his voice, it was Michael’s voice”.  She knew his eyes, his voice, his build.  There was, she said, “no doubt in my mind it was him”.  She did not notice his hands or whether he was wearing gloves.  
9.	The two women did agree as to who the robber was after he left and before the police arrived.  According to Mrs Martin she told the police that he had a slight squint or tick, and in due course the appellant was asked about that when he was interviewed.  
Other Prosecution Evidence.
10.	Undoubtedly the appellant did travel from Nottingham to Manchester during the evening of 15th December 1995, and Mr Tabberer, a ticket officer at Nottingham Railway Station, recalls selling a single ticket for that journey to a man who paid the £18.50 fare with 19 one pound coins, but he believed the sale took place between 5.15 pm and 5.40 pm.  If that timing is right the traveller could not have been the robber because, as we have said, the first panic button was pressed at 5.41 pm.
11.	In order to establish that the appellant owned a dark coloured woolly hat his mother was called as witness for the prosecution.  She claimed not to remember whether he was wearing it when he left home to catch a bus into Nottingham, at 4.15 pm. 
12.	The appellant’s reason for going to Manchester was to see a girl friend, Debbie Williams.  She said he telephoned her at about 5 pm.  He said he was at Nottingham Station, and she could hear background noises as of trains and a tannoy.  He was ringing to say he would be late.  It did not matter because she was going to out at a Christmas party, from which she did not return until about 2 am.  
13.	Meanwhile, at about 10 pm, the appellant telephoned Mr Towle, to whom we have already referred.  He and the appellant shared an interest in Star Trek conventions, which they had attended together over about 5 years.  On the evening of 15th December 1995 the appellant was distressed.  He said that on the train between Nottingham and Sheffield a fellow passenger had demanded a cigarette.  He didn’t have a cigarette, there was a scuffle, and he got off at Sheffield.  It was not clear whether at that stage he spoke to the guard.  Mr Towle asked whether the appellant had hit the man with his gun, meaning the jet black heavy and slightly shiny metal weapon that he knew that the appellant owned and had produced at Star Trek conventions, and of which Mr Towle provided a drawing.  On some previous occasion the appellant had told Mr Towle he would hit with that weapon if he was attacked.  
14.	At 2 am the appellant gave the same account of his train journey to Debbie Williams, telling her how he had to wait for an hour or so at Sheffield for another train.  The prosecution case was that this was all alibi-building, seeking to explain why he got to Manchester so late if he left Nottingham, as he would allege, before the crime was committed.  Debbie Williams was only aware of the appellant owning an unfrightening plastic looking gun which wouldn’t frighten anybody, and that was plainly not the sort of weapon described by Mr Towle. 
Arrest and Interview.
15.	The appellant was arrested in Manchester at his girl friend’s home at 3.10 am on Saturday 16th December 1995.  Later that day he was interviewed.  The interviewing officer noticed the twitch of which Mrs Martin had spoken, and asked the appellant about it.  He said he had had it for years.  The officer also noticed that his hands were thin and his nails were bitten.  The appellant said that he tried not to bite his nails “but I do”.  The appellant agreed that on the previous day he had been wearing the dark green bomber jacket he was still wearing, but said that he had not been wearing anything on his head or around his neck.  He was wearing glasses which the appellant himself described as “oval, oval-ish”.  He denied ever having a handgun, and made no reference to the weapon Mr Towle had seen.
Fingerprints etc.
16.	At the end of the prosecution case it was admitted by the prosecution that there was no forensic evidence, including fingerprint evidence, to connect the appellant with the robbery.  That is a matter to which we must later return.
The Defence Case.
17.	The defendant gave evidence, and his account was broadly similar to the account which he had given to the police.  He had left home on the 4.15 pm bus, and got to Nottingham Station at about 4.50 pm.  He bought a ticket and telephoned his girl friend, then, after spending some time at the station, he caught the 5.43 pm train to Sheffield.  Of course if he caught that train and it left on time he could not have been the robber.  He gave the same account of having an argument with a fellow passenger over a cigarette, and getting off at Sheffield to catch the next train.  The prosecution case was that he probably caught the later train from Nottingham, and never the broke his journey at Sheffield at all.  He said he wore glasses most of the time, and had owned his present pair since 1989.  He had a twitch for about 10 years.  His hands used to be thinner, and he had a ring which since December 1993 he had not taken off.  At the request of his girl friend he had stopped biting his nails prior to his arrest, but then he bit them again during his night in the cell, hence their appearance when seen by the police officer the next day. 
18.	The gun seen by Mr Towle had been left in a cinema some time prior to the 15th December 1995.  He said that he did not own a dark woollen scarf, and that when he left home on 15th December 1995 he was not wearing his woolly hat.  The house was later searched and no hat was found. 
Directions
19.	The trial judge warned the jury about the risks of mistaken identity.  He said - 
"In certain cases mistakes have occurred.  In certain cases the wrong person has been identified.  In certain a miscarriage of justice has occurred because of mistaken identification."
20.	He then assisted the jury as to the points to look for - how well did the identifier know the person she purported to identify - how frequently had they met - in what conditions - had the contact been sufficient to recognise a voice, or hands?  Then, turning to the occasion of the robbery, what was the light like - for how long did the women in question have the robber in view, and so forth.  All of those matters were carefully explored, but as this court said on the last occasion -
"There were four respects in which the direction can be criticised.  The judge did not refer the jury to the fact that a mistaken witness can be a convincing one.  He did not spell out the reasons for the danger of erroneous convictions in identification cases.  He did not say that even in recognition cases mistakes can be made, and he did not say that it was possible for a number of witnesses to get it wrong."
In fact the criticism can be encapsulated in two sentences.  The judge did not say in terms that an honest and therefore convincing witness can be mistaken, and that can be so even when there is more than one such witness.  In the past wrongful convictions have been the result of such mistakes.  But, as we have indicated, the judge did warn the jury that in the past mistakes have been made, and as in this case no one was seriously suggesting that either Mrs Martin or Miss Sheard was dishonest, that warning was meaningless unless it applied to them. 
21.	In considering whether or not, despite the error, the conviction remained safe this court, in November 1997, had regard to the way in which the reliability of the visual recognition was supported by the rest of the evidence, and that is something to which we will return.  The court concluded that the case against the appellant was overwhelming, and so the shortcomings in the direction did not threaten the safety of the conviction. 
Additional Matters.
22.	Two additional matters have now been drawn to our attention, one as a result of enquiries made at the behest of the Criminal Cases Review Commission, and the other as a result of submissions made to us by Mr Nuttall on behalf of the appellant.
23.	The CCRC discovery can be summarised thus - the scene of the crime was examined for fingerprints and a comparison with members of staff left three fingerprints outstanding, numbers 5, 11 and 12.  Number 5 was from the metal finger plate on the exterior of an interior door, about 140 centimetres from the ground.  Numbers 11 and 12 were from the centre of the interior side of the left of a pair of internal fire doors, respectively 114 and 130 centimetres from the ground.  They did not appear to be the fingerprints of the appellant, or of any offender on the National Fingerprint index, but no attempt was made to compare them with the fingerprints of 43 temporary staff and cleaners, and the company records are not such as to enable that exercise to be undertaken now.  There is no record of this information being disclosed to the defence at or before the trial.  Mr Jose, who appeared for the respondent before us and for the prosecution at the trial, believes that in substance the information was disclosed, but he very properly informed us that the recollection of defence counsel who appeared at the trial, but who did not appear for the appellant before us, was to the opposite effect.  For present purposes we are prepared to proceed upon the basis most favourable to the appellant, namely that disclosure was incomplete and we say at once that if the information was not disclosed it should have been.
24.	As to the location of the unidentified fingerprints, so far as we can ascertain no inquiry has been made to ascertain whether the robber observed by Mrs Martin and Miss Sheard ever was in a position to leave any of those prints.  Such an inquiry might not be fruitful, but on the limited information available to us it seems unlikely that the robber would ever have had occasion to touch the exterior side of an internal door (print no. 5).  As to print number 11 we notice that it had “insufficient ridge detail for a search to be conducted on NAFIS” (see South Yorkshire Police letter of 6th May 1999).  We therefore question whether any comparison with that print could ever have been meaningful.  But we accept that the defence could have used the information in relation to the unidentified prints to make a point if it was disclosed.  As the CCRC point out, in paragraph 10.22 of their report, it could have been used to support an argument that the robber was not the defendant, but it was at best a straw in the wind, a possibility not excluded.  There was nothing to indicate that any fingerprints had been left at the time when the robbery occurred, and it was in no sense a positive piece of evidence that the robber was not or could not have been the defendant.
25.	The additional point which Mr Nuttall invited us to consider is that there was here no specific direction in relation to voice identification.  As he points out, accurate voice identification is even more difficult than visual identification (see R v Roberts Times Law Report 14th September 1999), but of course voice identification was not the primary form of recognition in this case.  
Matters supporting Visual identification.
26.	That brings us back to those matters which this court found persuasive on the last occasion in that they lend powerful support to the visual identification by two witnesses who knew the appellant well.  As Mr Jos pointed out, there are a number of matters to be taken into account, assuming as we do that the jury found Mrs Martin and Miss Sheard to be honest witnesses doing their best to assist the court.  According to them -
(1) the robber had a gun of precisely the type which the appellant in spite of his denial to the police was known to have previously owned.
(2) The robber’s voice struck each of them as being the voice of the appellant.
(3) The robber’s build, and according to Mrs Martin his twitch, his thin fingers and bitten finger nails all pointed to him being the appellant.
(4) Although the appellant asserted that at the material time his finger nails were not bitten, they were next day, and he did not then offer any explanation to the police officer to suggest that their condition had changed suddenly over night.
(5) The robber wore garments, some at least of which the appellant was known to possess.  The robber had a woolly hat or balaclava.  The appellant owned a woolly hat.  The robber had a bomber jacket. The appellant owned such a jacket.
(6)  If the appellant was not the robber it is an extraordinary coincidence that on that night he should not only have arrived in Manchester on a train which left Nottingham well after the robbery was committed, but should also have considered it necessary to explain his broken journey not only to his girlfriend but also to Mr Towle before the police arrived at 3.10 am.
27.	On behalf of the appellant it is possible to point to the absence of any fingerprint, bearing in  mind that according to Mrs Martin he was not wearing gloves, and to Mrs Martin’s failure to notice a ring (if he was wearing one).  It may also be relevant that the police apparently failed to recover any significant number of £1 coins, but in our judgment the position still is as this court said on the last occasion, namely that the case against this appellant was and remains overwhelming.
Effect of additional matters.
28.	Adopting the words used by Lord Cross in Stafford and Luvaglio [1974] AC 878 at 907, the fresh evidence, although relevant and credible, adds so little to the weight of the defence case as compared with the weight of the prosecution case that a doubt induced by the fresh evidence would not be a reasonable doubt, so we leave the conviction standing, and dismiss the appeal.