Case No. 2004/0198/D3 
Neutral Citation Number: [2004] EWCA Crim 3387
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Tuesday, 23 November 2004
 
B E F O R E:
 
LORD JUSTICE LAWS 
MR JUSTICE DAVIS 
 
THE RECORDER OF CARDIFF
(His Honour Judge Griffith Williams QC)
(Sitting as a Judge of the CACD)
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R E G I N A 

-v- 

RUEL MARCUS
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
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MR J HAYES appeared on behalf of the APPELLANT
MR M BURROWS appeared on behalf of the CROWN
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J U D G M E N T 

1.	LORD JUSTICE LAWS:  On 11th December 2003 before His Honour Judge McCreath at the Birmingham Crown Court, this appellant was convicted by the jury on seven counts of robbery and one of false imprisonment.  He was sentenced to a total custodial term of 10 years.  There had originally been eighteen counts on the indictment.  The judge withdrew some seven counts from the jury and the appellant was acquitted by the jury on three further counts.  The counts were renumbered upon the indictment being amended, but the judge referred to the original numbering in his summing-up and we shall do the same in this judgment.  
2.	The seven counts of robbery on which the appellant was convicted were counts 4, 8, 10, 12, 14, 16 and 17.  Count 15 charged the offence of false imprisonment.  The victim of the false imprisonment count was also the victim of the robbery charged in count 14.  The appellant now appeals against his convictions with leave of the single judge.  
3.	Apart from counts 10, 14 and 15, the essence of the offences was that they were knifepoint robberies at cash machines in the Birmingham area.  The robbery charged at count 14 involved the imprisonment of the victim, hence count 15, in his own car.  
4.	There is only one point in the appeal.  It concerns the nature of the video identification procedure, evidence of which was placed before the jury in relation to counts 4, 12, 14, 15, 16 and 17.  The procedure had been conducted relating to all these counts on 15th November 2002.  The offences had variously been committed between August and November 2002 and the appellant had been arrested on 13th November 2002.  The procedure is said to have been in violation of Code D promulgated by the Secretary of State under the Police and Criminal Evidence Act 1984, and to have been highly prejudicial to the appellant.  We shall describe it shortly.  These defects are said to render the convictions in question unsafe.  It was initially contended also that the other convictions, that is to say counts 8 and 10, were contaminated by the faults relating to the others so that they too were unsafe.  Before confronting the arguments we should give a thumbnail sketch of the facts.
5.	As the appellant's counsel Mr Hayes acknowledges in his advice, there was a common thread to the case, namely that the complainants broadly described their attacker (there were some variations in the descriptions) as a black man in his late thirties or forties with greying hair and a greying beard.  It is clear also that at the time of his arrest in November 2002 the appellant was of somewhat unusual appearance.  He had black hair, was grey around the temples and had a grey goatee beard.  He is now a man of 49 years of age.  
6.	The appellant's counsel's advice contains a very useful and succinct account of the facts of the cases in which the relevant identification procedure was used and we can do no better than replicate it with some adaptation.  
7.	Count 4.  At 7.40 pm on 5th August 2002, Mr Henry Sowden walked to the Lloyds TSB cashpoint on the Birchfield Road in Birmingham.  A black man aged approximately 55 or over, he was to say, five foot nine tall and of lean build with white facial stubble on his cheeks, robbed him using the words "move away or I'll cut you".  
8.	Count 12.  At 8.55 am on the morning on 12th September 2002, Mr William Clutterbuck was robbed at the same cashpoint.  He described the robber as a black man aged 30 to 35 years, five foot ten, slim build with a rough grey beard.  
9.	Counts 14 and 15 we take together.  On 28th October 2002 Mr Ali was driving home when he was stopped by a black man between 42 and 45 years old with a stubbly beard.  He had a knife which he placed to Mr Ali's throat.  Mr Ali was robbed, stabbed and unlawfully kept in his car.  
10.	Count 16.  On 8th November 2002 at 12.05 pm Mr Jhitta was robbed at the Birchfield Road cashpoint.  He described the robber as about 50, medium build, full face beard which was short and contained flecks of grey.  He said the man spoke with a West Indian accent.  
11.	Lastly, count 17.  On 12th November 2002 at 9.15 in the evening at the same cashpoint, Mr Terence Brown was robbed at knifepoint.  He described his robber as a light-skinned black man, 35 to 45 years old with short grey hair, a beard and moustache.  He said the moustache was fairly bushy and greying.
12.	The appellant gave evidence at trial in his own defence and denied any involvement with any of these robberies.  
13.	There are some points to add to this bare summary.  First as regards count 12, the robbery of Mr Clutterbuck, we should notice that there was another witness, Miss Lisa Breakwell, who for five to 10 minutes had watched two men loitering near a bus stop.  She said that one was in his late thirties, had facial stubble and was wearing a cap.  The men went towards the cashpoint where Mr Clutterbuck had gone.  Miss Breakwell did not see any robbery but saw the two men leave the cashpoint area.  We shall refer to her participation in the video identification in due course.  
14.	Next in relation to count 16, the robbery of Mr Jhitta on 8th November 2002, there was also the evidence of a police officer, DC Vinall.  He knew the appellant well from previous encounters.  He looked at pictures taken on the occasion in question by the bank's CCTV camera and he confidently and readily identified the appellant as shown on them.  
15.	Now we should mention counts 8 and 10, which are not affected, certainly not directly affected, by the impugned identification procedure.  Here there was powerful evidence supporting the Crown case.  The relevance of any discussion of these counts is only to the suggestion that any defect in the convictions on the other counts contaminate the convictions on these.  Count 8.  A cap bearing the appellant's DNA was admitted to belong to him and in the struggle which took place between the female victim of the crime and her attacker (this was another robbery at the Birchfield Road cashpoint) the assailant's hat had fallen off.  There was plainly a continuity of evidence between the hat lost in the struggle and the hat bearing the appellant's DNA.  On count 10, a street robbery in which the female victim was assaulted in the street and robbed of her jewellery, the victim identified the appellant at an entirely different video identification on 8th May 2003 of which no complaint is or could be made.
16.	Now we may turn to the procedure which is said to have rendered the convictions unsafe.  On 14th November 2002, Inspector Hunt met with the appellant and his legal representative.  It was agreed that a video identification procedure was appropriate, but it was not practically possible to assemble a sufficient number of volunteers of similar appearance to the appellant so as to hold a parade.  If a video procedure was to be adopted, paragraph D:2 of Annex A to Code D required that the set of images to be used must include the suspect and at least eight other people who so far as possible resembled the suspect in age, height, general appearance and position in life.  To try and find similar images Inspector Hunt searched two databases which contained some 19,000 pictures.  They did not however include eight persons who sufficiently resembled the appellant in age and general appearance.  Inspector Hunt selected what he thought were the best eight out of these collections.  Because, as we understand it, these eight did not sufficiently resemble the appellant, Inspector Hunt arranged for the images, together with the image of the appellant that was to be used in the procedure, to be masked -- that is to say marks were superimposed on the area of the temples and lower face as to obscure any facial hair or grey hair in those areas.  So much was done with the knowledge and consent of the appellant and his adviser.  But Inspector Hunt undertook another initiative unknown to the appellant or his legal representative.  He caused two parallel compilations to be created of the same images in the same order but this time with no masking.  We may at this stage take up the narrative as it was given by the learned trial judge in the course of his ruling made on 2nd December 2003 to the effect that the video identification should be admitted:  (Transcript 1, page 4 at A):
"The decision had been made that, in the event of a witness being unable to make an identification from the masked images, he or she would then be shown one of the unmasked compilations.  Inspector Handley, the officer who conducted the procedure, informed Mr Marcus' representative of that intention.  She objected, both then and at the end of the procedure, arguing that it was in breach of Code D and was tantamount to a confrontation.  Inspector Handley overruled the objection.  
The decision to proceed in this way had, it seems, been taken after discussion with the CPS, there having been some disquiet amongst operational police officers about the inadequacies of video procedures where the witnesses had found it impossible to make identifications from obscured images.  The discussion had not arisen in the present case but was of a general nature.  The police decided, having received that advice, to proceed in this way in this case and to leave it to the trial judge to determine whether the evidence should be admitted." 
We find it wholly extraordinary, quite aside from anything else, that it was decided not to inform the defence of this remarkable procedure until immediately before it was actually undertaken.  
17.	The video identification procedure was implemented, as we have said, on 15th November 2002.  The results are summarised in a table contained in the skeleton argument prepared by Mr Burrows from the Crown and we may adapt it for the purposes of this narrative as follows.  First count 4 and Mr Sowden.  At the masked procedure the defendant stood at position 7.  Mr Sowden made no identification.  At the unmasked procedure the defendant was also placed at position 7 and Mr Sowden said: "I want to look more closely at number 7.  I think so, number 7."  Count 12.  In the masked procedure the defendant was at position 5.  Mr Clutterbuck, asked if he could make an identification from the masked images, said: "Yes number 2."  Miss Breakwell was asked about the masked procedure also.  She asked to see number 5 again.  She said: "The blobs put you off but number 5."  Counts 14 and 15.  In the masked procedure the defendant was in position 5.  Mr Ali said: "It is very difficult.  Number 5 or number 8 are the closest.  I can't be certain because of the absence of the beard."  In the unmasked procedure, the defendant was again at position 5.  Mr Ali said: "Can I see number 5 again.  I think it's number 5."  Count 16.  At the masked procedure the defendant was at position 7.  Mr Jhitta could make no identification.  At the unmasked procedure the defendant was again at position 7.  Mr Jhitta said: "I cannot say 100 per cent but it could be number 7."  Lastly count 17.  The defendant was at position 7 in the masked procedure.  Mr Brown said: "Could I look at number 7 again.  Number 7 is the closest.  Until I see the features I cannot be 100 per cent."  At the unmasked procedure the defendant was again at number 7 and Mr Brown said:  "At the time of the incident he had more beard.  Yes, number 7."  
18.	It is not without some importance, as we understand the facts, that all the volunteers or persons whose images had been selected were persons in their twenties and only two had any sort of facial hair.  By contrast the appellant was in his forties with a greying beard.  
19.	Inspector Hunt was cross-examined upon a voire dire before the learned trial judge, conducted in the context of the defence application to exclude the video identification evidence pursuant to section 78 of the Police and Criminal Evidence Act.  We do not have a transcript of this evidence but the summary given in the appellant's counsel's advice is, as we understand it, accepted as accurate.  We may quote from that:
"In cross-examination Inspector Hunt admitted that Mr Marcus's features were unusual and could not find similar volunteers on the database.  He admitted that the unmasked procedure came about by operational officers claiming that masking led to poor results and as a result the CPS had advised acting Detective Styles to implement a new procedure of showing an unmasked tape to volunteers where no identification had been made.  He accepted that the new procedure was not envisaged by Code D and that because of the appearance of the other volunteers Mr Marcus would, 'blatantly stand out'.  He also was of the view that this procedure was 'blatantly unfair' to Mr Marcus.  He was also of the view that this was the first attempt at unmasking and that the force would be waiting to see whether the judge concluded if it was lawful.  Finally, he accepted that Mr Marcus had been denied his opportunity to choose whether to pull out of the procedure altogether." 
As the judge said, it was common ground that the use of the unmasked images contravened Code D.  Indeed that must be so.  It was only necessary to resort to the device of the masked images for the very reason that otherwise there would not be images of at least eight other people resembling the suspect in age, height, general appearance and position in life.  The unmasked images by definition failed to meet that criterion.  
20.	In his ruling, by which he allowed in the identification evidence based on the unmasked images, the judge said this at 6E:
"The police were left with a choice between three options:  
First to hold no identification procedure of any kind.  To have taken that option was unthinkable and it is not argued that it should have been taken.  
Secondly, to hold a video procedure, however flawed it might have been.  
Thirdly, to move to a confrontation.
In reality, the choice lay between these two latter options.  It does not take a moment's thought to see which of the two was preferable.  Confrontation is a clumsy device, lacking in transparency and almost always likely to lead to a risk of unfairness to the accused."  
Then at 7D: 
"Whatever its flaws, the procedure adopted in this case had the virtue of transparency.  It was conducted in the presence of the defendant's representative and, above all, it was recorded so that there is available an unimpeachable record of the procedure.  A jury would thus be able to see exactly what was done and to hear, with a little difficulty, I accept, but to hear, nonetheless, exactly what was said." 
Then at 9C:
"To the extent that the identification procedures in this case were imperfect, the trial process is fully equipped to expose those imperfections to the jury, not least because of the existence of the unimpeachable record to which I have referred.  
Ultimately, the task of assessing the weight to be given to this evidence is preeminently one for the jury and I am confident that they can be entrusted to perform that task conscientiously and fairly.  
In those circumstances and for the reasons which I have sought to give, I rule that this evidence ought to be admitted.  
To rule otherwise would have an effect on the proceedings which section 78 is designed to avoid.  
I perhaps should add this, that I have reached this decision on the particular facts of this case and, insofar as anybody has regarded this case as what is described to me as 'a test case', then they are wrong to do so.  I understand this is the first time that a judge has had to rule on a matter of this kind and rule I have but I have ruled in respect of this case and in the particular circumstances and in the particular context of this case and I am not to be taken to, by giving this ruling, to have given some sort of blanket approval to this sort of procedure in all cases.  The admissibility of the evidence of whatever kind in any case will depend on the peculiar and particular circumstances of that case and for it to be thought that I had ruled that this sort of parallel viewing, if I can so describe it, is always appropriate evidence, to think that would be to make a great error."
21.	We should notice in passing that the judge gave an impeccable general direction on the dangers relating to identification evidence when he came to sum the case up to the jury -- see page 8E and following in the transcript of the summing-up.
22.	As we have just indicated, the learned judge disavowed any general implications arising from his decision to admit this identification evidence.  He said he arrived at the decision on the particular facts of the case.  But that with respect is very difficult to reconcile with his observations, no doubt entirely accurate, to be found at transcript volume 1 page 4C to D, that the police had decided to use the unmasked images following discussions with the CPS of a general nature as to the difficulties arising when masked images did not yield identifications.  
23.	In our judgment, what has happened here is that a procedure, the use of masked images, did not yield sufficient identification evidence for effective use in court, and so the police, prompted it seems by the CPS, adopted a further and very different procedure: the use of unmasked images which was avowedly and necessarily in violation of Code D.  A procedure, moreover, which the senior police officer who set it up himself accepted was blatantly unfair to the appellant.  And it was imposed in the appellant's case with no sensible notice being given of it to him or his advisers.  
24.	If this appeal is dismissed that position might be replicated in other cases.  The court would have validated in principle, or might be taken to have done so, the use of a procedure which violated the Code.  That in our judgment would be quite wrong.  The course taken by the police here was a deliberate device to evade the provisions of the Code.  That falls to be condemned by this court.  In these circumstances, the judge should have excluded the evidence.  It is not for us to say, but it may be possible (as my Lord Davis J suggested in the course of argument) that given modern technology video images might be edited so for example as to add the appearance of facial hair or the like, and that might be preferable to the somewhat crude procedure involving the masking that was done here.  Plainly the consent of the defence would be required. But that obviously is for consideration elsewhere.
25.	There was some other evidence against the appellant on the relevant counts, but it is very doubtful whether he could reasonably have been convicted without the identification evidence and on most of these counts he plainly could not.  The convictions are accordingly unsafe and the appeal will be allowed on the counts which depended on the evidence which we have criticised, that is to say counts 4, 12, 14, 15, 16 and 17.  That said, we see no reason whatever to upset the convictions on counts 8 and 10.  We do not accept that either of them was contaminated by the flawed procedure which we have condemned.  There was powerful freestanding evidence to support the Crown case on each.  Mr Hayes for the appellant effectively conceded as much, and rightly so.  
26.	For all the reasons we have given, the appeal against conviction is allowed to the extent indicated.