No: 200506468/202/C3 
Neutral Citation Number: [2007] EWCA Crim 3301
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Friday, 20th October 2006
 
B E F O R E:

LADY JUSTICE SMITH DBE 

MR JUSTICE MACKAY 
 
HIS HONOUR JUDGE CHAPMAN
(Sitting as a Judge of the Court of Appeal Criminal Division) 

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R E G I N A 

 -v - 

ANTHONY PAUL MAUGHAN AND JOHN THOMAS WILLIAM WARD
 
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MR R PAWSON appeared on behalf of the APPELLANT MAUGHAN
MR D JONES appeared on behalf of the APPELLANT WARD 
MR R BROWN appeared on behalf of the CROWN
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 J U D G M E N T

1.	Lady Justice Smith: On 11th November 2005, in the Crown Court at Bournemouth before Mr Recorder Climie and a jury, the appellants, Anthony Paul Maughan and Thomas William Ward, were convicted of a single count of aggravated burglary.  On 20th December 2005 they were each sentenced to 12 years' imprisonment for that offence.  On the same occasion Ward was sentenced to three years' imprisonment consecutive in respect of two offences of robbery to which he had pleaded guilty on an earlier occasion.
2.	In the present proceedings both appellants appeal against conviction and sentence by leave of the single judge.
3.	On 12th October 2004 Sean and Deborah Buckley were at home, when, late in the evening, Sean Buckley answered a knock at the front door.  Two men were outside and they forced entry into the house.  The two men were armed, one with a hammer and one with a sword.  They made demands for money.  After a confrontation, which lasted about two minutes or maybe a little longer, somehow Deborah Buckley managed to escape and the men made off.  The police were called.  Deborah Buckley gave a statement to the police that night.  Her husband gave some details to the police, but on account of the fact that he was very shaken and required medical treatment, he did not sign a statement until some days later.
4.	On 19th November, just over one month later, Mr and Mrs Buckley attended a video identification procedure involving the appellant Maughan.  Deborah Buckley picked out Maughan as the man who had been carrying the sword.  Sean Buckley did not pick out Maughan, but instead picked out one of the other men shown on the video film, described as one of the ‘distracters’.
5.	On 16th December, about two months after the offence, Mr and Mrs Buckley attended a second identification procedure this time involving Ward.  Sean Buckley identified Ward as the intruder with the hammer.  Deborah Buckley was unable to make any identification.
6.	The prosecution case at the trial was that Maughan and Ward were jointly responsible for the aggravated burglary, Maughan having been the man with the sword and Ward with the hammer.  The defence case was mistaken identification.  Thus the only issue for the jury was identity.
7.	Dealing with the evidence in a little more detail.  Sean Buckley said that during the evening of 12th October he was looking after the children at home while his wife went out to play bingo.  He had a drink and smoked some cannabis with friends.  His wife came home at about quarter to ten and went into the kitchen.  Shortly after that his second friend left.  
8.	Sean Buckley was getting ready for bed when he heard a knock at the door.  He thought it was his friend returning, but when he opened it two men were on the doorstep.  The first man drew a sword and demanded money, at which point Sean Buckley called to his wife to telephone the police.  Before she could do so, a second man also came in carrying a hammer.  The second man forced Sean Buckley into the kitchen, again demanding money.  The man with the sword forced Mrs Buckley into the living room.  Each room was well lit.  
9.	After the event Sean Buckley described the man with the hammer as having brown or fair hair, a scar on his nose, possibly on the left side.  He said that the both men had Irish accents.  He said that he had not really concentrated on the appearance of the man with the sword.  The description that he had given of the man with the hammer did not fit Ward, who, according to the Crown, was the man with the hammer, although the description that Mr Buckley had given was not a bad description of Maughan.  
10.	In cross -examination Mr Buckley accepted that in the witness statement he had provided to the police the following day, and signed later, he had described the man with the hammer as having fairly straight thick dark hair with a straight cut fringe and a noticeable scar on the right hand side of his nose.  He had also said that this man was wearing a light grey long sleeved sweatshirt and training shoes.  He said he was holding the hammer in his left hand.  It was later to emerge that both men were right handed.
11.	In respect of the identification procedure involving Maughan on 19th November (when he had made a mistaken identification having picked out one of the distracters) Sean Buckley said that he had been asked to identify the man with the sword.  Sean Buckley was certain that the man he had picked out on the second parade was the man with the hammer, although he accepted that the man he picked out on the second occasion (Ward) had thinning hair with no fringe.  It was apparent that his descriptions were confused and confusing.  His explanation was that he may have got the descriptions the wrong way round due to the trauma of the event.  
12.	Deborah Buckley gave evidence and gave a similar account to that of her husband.  She described the man with the sword as being 5 foot 5 inches tall, maybe a bit taller.  In fact Maughan was 5 foot 9 inches tall.  She said that the man with the sword was in his early 20s with medium brown hair and possibly a centre parting.  He was skinny but not scrawny and had fresh cuts on his nose, possibly the left hand side of his nose.  He was wearing a fleecy blue lumber jacket.  She could not give much of a description of the man with the hammer, but said that he was bigger than the man with the sword, looked a little older and had black short spiky hair and a rather obvious dimple on his chin which she particularly recalled.  She said that the lights were on in the living room.  She had been concerned for the safety of her children upstairs in bed.  
13.	Inspector Strickland was in charge of the identification procedure involving Maughan on 19th November.  He said that Sean Buckley was asked whether he could identify the man with the hammer.  The inspector could not understand why Deborah Buckley was asked to pick out the man with the sword and Sean Buckley the man with the hammer.  Sean Buckley recalled that on that occasion he had been asked to pick out the man with the sword.  It would appear that either the officer or Mr Buckley must have been mistaken about what Sean Buckley was asked to do on that occasion.  It may be, we observe, that the officer may have been wrong, as Deborah Buckley was certainly asked to pick out the man with the sword on that occasion.
14.	At the identification procedure on 16th December involving Ward both Sean and Deborah Buckley were, according to Inspector Strickland  - - and there was no dispute about this  - - asked whether they were able to identify one of the two males who forced entry to their house.  On that occasion the inspector did not specify which role the individual had taken that they had to look for.  As we have said, Mr Buckley picked out Ward as the man with the hammer, who he said had confronted him in the kitchen.  Mrs Buckley did not pick out anybody.  
15.	In interview both appellants declined to answer any questions.  Maughan gave evidence at the trial.  Ward did not.
16.	Maughan said that he had been to Poole on occasions but he did not think that he had been there in October.  He lived in Southampton.  The offence, of course, had taken place in Poole.  He presumed that on the night in question he was at home on the caravan site in Southampton where his mother lived and where he lived, or somewhere in Southampton generally, but he could not really remember.  However, he reiterated that he was not involved in the offence.
17.	As we have just said, Ward did not give evidence, but certain admissions were read to the jury relating to his mental state.  These were as follows.  He had been examined by a psychologist on behalf of both the prosecution and the defence and had been found to be of very low intelligence.  He did understand the difference between right and wrong.  He had an ability to understand and make a decision as to whether to deny or admit the evidence.  However it would be impossible if he were to go into the witness box to assess his real comprehension or understanding of the questions being put to him and therefore the reliability of his answers.  That was to provide an explanation of his decision not to give evidence.  As we have said, the jury convicted both appellants.
18.	We turn now to the appeals and first to the appeal of Maughan.  The first ground is that the recorder had been wrong to admit the evidence of the identification procedure involving Maughan.  He should have excluded it as unfair under section 78 of the Police and Criminal Evidence Act 1984.  In fact, a submission had been made to that effect in the course of the prosecution case and the judge had rejected it.  
19.	To us it was submitted that there were a number of reasons why this evidence should not have been put before the jury.  First, there was an admitted breach of the Code of Practice governing video identification procedures.  In particular, there was an admitted breach of paragraph D2.  That paragraph provides as follows:
"The set of images must include the suspect and at least eight other people who, so far as possible, resemble the suspect in age, general appearance and position in life."
20.	The admitted breach related to the number of other men, beside the suspect, who were included on the video film.  Only seven other men besides Maughan were shown.  There should have been at least eight.
21.	Mr Pawson, who appeared at trial and on this appeal on behalf of Maughan, accepted that this admitted breach did not mean that the evidence of the procedure should be automatically excluded.  In particular, it was not suggested that the police had acted in bad faith in setting up the procedure.  The evidence suggested that the inspector, who had been in charge, had had available to him some 600 sets of images from the database all of which were said to be broadly similar to Maughan.  Of these he had selected 15 and appears to have intended to allow Maughan's solicitor to make the final choice.  But whether that happened and why only seven distracters were selected and used was not clear.  It seems to have been put down to a technical problem of some sort.  In any event, Maughan's solicitor, who was present at the time, either did not notice the shortfall in numbers, or, if he did, he did not complain about it.
22.	However, the shortfall in numbers was not Mr Pawson's only complaint.  He also submitted that the distracters did not adequately resemble Maughan in general appearance.  Here, again, there had been no objection by the solicitor to the images selected for use.  Indeed, as we have said, it may be that he played some part in the selection process.  Mr Pawson submitted that, insofar as the inspector was responsible for the selection, he approached it in the wrong way, in that, as well as looking for men who resembled Maughan, he was also looking for men who resembled the descriptions given by Mr and Mrs Buckley.  That was wrong.  
23.	If that is indeed what the inspector did, we are inclined to think that he may have been wrong to take that into account, because paragraph D2 makes it plain that the people whose images are to be shown should, as far as possible, resemble the suspect in age, general appearance and position in life.
24.	The recorder ruled that the evidence of the procedure should be admitted and said that any deficiencies which had been drawn to his attention were of the sort that it would be appropriate for the jury to take into account.  They were not such as to render the admission of the evidence unfair.
25.	Mr Pawson agreed today that the recorder's decision, which is, of course, a discretionary one, is very much one for the judge's impression, he having seen the film himself, as to whether the procedure was fair to the appellant in the opportunity that it gave to the witnesses to make an unbiased identification.
26.	We have seen the film and we are all of the view that this procedure was perfectly fair to Maughan.  It is not intended that the police should produce a film of men who are virtually identical to the suspect.  The object is to choose men so that the whole procedure will avoid any bias towards the witness focusing on the suspect.  We, having seen the film, are satisfied that there was no such danger here.  Each member of this court would have made the same decision as that made by the recorder.  
27.	We will deal at this stage with a supplementary ground of appeal arising from that first ground in Maughan's appeal.  When ruling that the identification evidence was admissible, the recorder said that he would direct the jury in accordance with the cases of Quinn and Forbes as noted in the then current edition of Archbold at paragraph 14 -41.  That would require him to explain to the jury that there had been a breach of the Code and that there were other criticisms of the images used in the procedure.  He should then explain the requirements of the Code and why the requirements were made and were important.  Finally, he should direct the jury that they should consider the importance of the shortcomings identified and to consider whether in their view those shortcomings made the identification evidence unreliable.
28.	Mr Pawson submitted that the recorder had failed to sum up this issue adequately.  He began well enough by drawing attention to the shortcomings, but, submitted Mr Pawson, he did not go on to explain the importance of the provisions or to invite the jury to consider whether the shortcomings made the identification unreliable.
29.	However, it is accepted that both counsel had adverted to these issues in their closing speeches and a good deal of attention had been paid to the conduct and content of the identification procedures during the trial.  Mr Brown, who appeared at the trial and on this appeal for the prosecution, submitted that by the end of the trial the jury could have been in no doubt as to the significance of the evidence about the procedures and any shortcomings that had been identified.
30.	We accept that a fuller direction by the judge would have been appropriate, but we think that as this was the main issue in the trial the jury must have been well aware of the reasons why so much attention was being paid to the identification procedures.  We do not think that the jury could have been under my misunderstanding as to their function in regard to their assessment of these procedures.
31.	Finally, Mr Pawson submitted for Maughan that there was insufficient evidence for the case to go to the jury.  
32.	We can deal with this third ground quite briefly.  The identification evidence, if admitted, was really quite strong.  This was not a fleeting glimpse case.  Mrs Buckley had had the intruder in her sight for about two minutes in the living room in good light.  That was the intruder with the sword.  Her description of the intruder with the sword tallied reasonably well with Maughan.  True it was that Mr Buckley's descriptions were confused and confusing, but the recorder took the view that those weaknesses in the identification evidence were a matter for the jury.  We are quite satisfied that in that ruling he was right.  In our view, there plainly was enough evidence against Maughan to go to the jury.  
33.	That disposes of Maughan's appeal against conviction.  We turn to Ward.  His first ground of appeal arose out of a pre -trial ruling made by His Honour Judge Harrow some weeks before the trial began.  The Crown applied to the court to admit two convictions for robbery as evidence of propensity.  Ward had earlier pleaded guilty to two robberies, both of which took place on 14th November 2004, which was about a month after the alleged offence at the Buckleys' home.  Although the trial indictment, with which this court is concerned, alleged aggravated burglary rather than robbery, possibly because nothing was actually stolen from the Buckleys' home, the modus operandi of the two robberies was very similar to the modus operandi in the instant offence.  In the company of another man Ward had forced his way into the victims’ homes, both homes also being in the town of Poole, and had demanded money after both threatening and using violence against the occupants.  The prosecution produced the witness statements from the victims of these two robberies in order to demonstrate the similarities between those robberies and the present case.  The Crown contended that these incidents demonstrated that Ward had a propensity to commit offences of the kind now alleged and that that meant that it was more likely that he was the person who had committed the offence at the Buckley's.
34.	The judge ruled that the evidence should be admitted.  In so doing he noted that the evidence of identification appeared on paper (for that was all that was available at that stage) to be quite strong.  This, he said, was not a case of using evidence of propensity to bolster an otherwise weak case.  
35.	In the event, the material relating to the convictions was reduced into the form of admissions which were put before the jury at the close of the Crown's case.  Mr Jones, on behalf of Ward, had not sought to reopen or rechallenge Judge Harrow's decision to admit these convictions in the light of the way in which the evidence of identification had in fact emerged at trial.  In our view, he was wise not to do so.
36.	Today, Mr Jones has submitted that Judge Harrow's ruling was wrong.  He submitted that these two offences of robbery had been committed on the same night only about 15 minutes apart and really amounted, in effect, to only one other offence.  They were not, therefore, sufficient to show propensity unless there was a striking similarity between them and the instant offence.  There was, he admitted, no such striking similarity.
37.	We do not accept that submission.  The two offences, although close in time, indeed only about 15 minutes apart, were quite separate offences, taking place at different houses.  Those two offences of robbery show that Ward was prepared on two occasions on the same night to intrude into two private houses, demand money and threaten the occupants with violence.  We consider that those offences were sufficient to give rise to the inference that Ward had a propensity to commit offences of the kind alleged at the trial.
38.	Second, Mr Jones submitted, the offences did not have probative force in the context of this case where the only issue was one of identification.  He submitted that they did not make it more likely that he, Ward, was guilty of the instant offence.  We think that that is exactly what they did show.
39.	We consider that Judge Harrow was right to admit this evidence under the Criminal Justice Act 2003.  We would have done likewise.  That ground of appeal accordingly fails.
40.	Ward's other grounds of appeal on conviction follow those in Maughan's appeal.  It is said that the judge should have exercised his discretion under section 78 of PACE to exclude the identification evidence against Ward; that is the evidence of the second procedure.  Ward could not rely, as Maughan could, on a specific breach of the Code.  The correct number of distracters had been shown at his procedure.  However, it is said that there were a number of other shortcomings which cumulatively meant that the procedure was unfair and unreliable.  
41.	Ward has a dimple in his chin.  Mrs Buckley had commented upon it.  None of the distracters had such a feature, so the police had attempted to cover and conceal the chins of all the people on the procedure.  Mr Jones complained that these efforts were inadequate and that Ward's dimple was still visible; either the masking should have been more effective, or not attempted at all.  The fact that it was attempted drew attention to the chins of the men who were shown and the effect may have been enhanced.
42.	We have to say that two members of this court could not see the dimple.  We consider that the police efforts to cover the dimple, which were plainly well intentioned and were sanctioned on Ward's behalf, were fairly effective.  One member of the court was able to catch a glimpse of the dimple.
43.	Second, Mr Jones complains that some of the distracters did not adequately resemble him.  Two of them had some facial hair in the form of a modern beard.  He himself had stubble.  The recorder accepted that the inclusion of the two men with beards had been unfortunate.  Once again we note that the solicitor present for the defence had not raised any objection, but, perhaps, that is not a matter of any great importance.  
44.	Third, it is said that the selection process was unfair and inappropriate, because Ward was dishevelled when filmed.  He was filmed very shortly after he had been arrested for the two robberies we have previously mentioned on 14th November 2004.  It was late at night.  He looked unkempt and under the weather.  
45.	To some extent, now that that has been drawn to our attention, we can see that that was so.  However, at least one other man on the film appeared to us to look dishevelled.  Once again we think that the fairness of the selection was largely a matter of impression.  The recorder plainly felt that it was fair.  We agree.  We do not think that these complaints, even cumulatively, amount to anything of significance.  We stress that the police cannot be expected to produce clones of the suspect.  In Ward's case it is our view that the police had done rather well to find enough men with faces of a similar general shape to that of Ward's.  In our view, that ground of appeal fails.
46.	Finally, Mr Jones submitted that there was insufficient evidence to go to the jury.  He accepted that, once the identification evidence had been admitted, it amounted to a significant piece of evidence.  However, in his submission, the confused and confusing evidence of description given by Mr Buckley detracted from the evidence of the video procedure and the result was an inadequate and insufficiently reliable set of evidence to go to the jury and upon which a safe conviction could be founded.  
47.	He submitted that the two witnesses, Mr and Mrs Buckley, had given different descriptions of the men's clothing.  Indeed, they had.  He submitted that Mr Buckley's identification of Ward did not tally with the description he had given of the man he said had held the hammer.  Mr Buckley had identified a distracter at the identification procedure for Maughan.  On any view, he had been wrong about that.  He had said that he was sure the inference was that he was an unreliable witness.  The submission was made, and this may well be right, that Mr Buckley was in a state of shock and trauma at the time of the incident.
48.	We can see that all of these are good jury points, but in our view they do not detract from the fact that there was a good identification of Ward by Mr Buckley who was in confrontation with him in good lighting conditions for about two minutes in the kitchen of his home during the intrusion.  That in itself was enough evidence to go to the jury.  
49.	There was, in fact, also some evidence of association between these two men, but the recorder said that he would leave that out of the count.  Even leaving that out of account, we consider that there was enough evidence against Ward.  
50.	For those reasons his appeal on conviction also fails.
51.	We turn to deal with sentence.  Both men had poor records.  Maughan, who was born in October 1982, had 24 previous convictions, comprising 48 offences, 23 of which were for offences of dishonesty and 15 of those for burglary.  He had first been convicted in 1995 for offences of burglary and theft.  He had a number of custodial sentences for burglary, the last of which had been in 2004.  Prior to that he had also been sentenced to two years' detention in a young offender institution and had had 15 months' imprisonment for burglary.  
52.	Ward, who was older, born in 1976, had seven previous convictions, comprising 30 offences, ten of which were for offences of dishonesty, but none for burglary.  He had first been convicted in 1994 and sentenced to a number of short periods of custody for dishonesty and driving matters.  He had one previous conviction for assault occasioning actual bodily harm.  
53.	There were pre -sentence reports in respect of both appellants.  Maughan admitted to having a longstanding dependency on alcohol, heroin and crack cocaine, and accepted that he had committed offences of dishonesty in order to fund his addiction.  He still denied the offence of which he had been convicted.  He said that he could not remember the evening and his behaviour would have been affected by drugs and alcohol.  It was said that while in prison he had gained some insight into his drug and alcohol use and was motivated to address his problems.  But he was at a high risk of being convicted again and posed a significant risk of harm to the public.
54.	So far as Ward was concerned, he, too, was addicted to crack cocaine and alcohol.  He was at a medium to high risk of being convicted again and he posed a significant risk of harm to public.  We have already referred to the psychological evidence which was before the court..
55.	In the written grounds of appeal it was submitted that the sentence of 12 years for this offence, imposed on each appellant, was too long.  We agree.  Serious though it was, the offence was mercifully brief and, although weapons were carried, they were not in fact used.  We do not underestimate the shock and trauma upon the victims, but they were not physically harmed.  Nothing was in fact stolen and, as we have said, the whole event was brief.
56.	The appellants could not derive any credit for a plea of guilty and plainly a long sentence was required, but we do think that 12 years was too long.  We think that a sentence of eight years would be more appropriate and commensurate with the gravity of this offence.  We see no reason to differentiate between the two appellants.  Accordingly, the sentence for the offence of aggravated burglary of 12 years as imposed will be quashed and a sentence of eight years' imprisonment will be imposed on each appellant in its place.  
57.	We consider that the sentence of three years' imprisonment, which was imposed on Ward consecutive to the sentence for aggravated burglary (that was three years for the two offences of robbery) was beyond criticism.  Indeed, it may be said that it was on the lenient side, but, bearing in mind the principle of totality, it should remain in place.  The result is that his sentence totals 11 years.