Case No: 2007/04905 C3
Neutral Citation Number: [2008] EWCA Crim 1522
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM The Crown Court at Southwark
HHJ G Stone QC
T2006 7829
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17/07/2008

Before:

LORD JUSTICE HOOPER
MRS JUSTICE COX DBE
and
HHJ STOKES QC
RECORDER OF NOTTINGHAM
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Between:

	Faraz Ali 	Appellant	
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	Regina	Respondent	
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(Transcript of the Handed Down Judgment of
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Mr J Lynn for the Appellant
Mr E Culver for the Respondent

Hearing date: 8 July 2008
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Judgment
LORD JUSTICE HOOPER: 

1.	On 13 August 2007 at the Crown Court at Southwark before HHJ G Stone QC and a jury the appellant was convicted of the robbery of SH. He appeals against that conviction with the leave of the single judge. 
2.	At the conclusion of the hearing (which took place over two days because of difficulties locating CCTV film which we needed to view), we announced that the appeal was allowed and the conviction quashed.  The prosecution did not seek a new trial.  
3.	The victim of the robbery described in his statement being on a train to Kings Cross at about 17.00 hours on 9 August 2006.  The train stopped at Mill Hill Broadway. As soon as the train departed a male entered the carriage- that person, said the prosecution, was the appellant. The appellant denied in evidence being present and the only issue was identification. The victim described the male as a light skinned Asian male, approximately 20-22 years old and around 6 feet tall.  That description was apt to describe the appellant - and, of course, many others. He described the male as having very short black hair, almost skinhead. That, on the appellant’s case, did not fit his description. The only photograph of the appellant which could assist the jury on the issue of the hair was taken 5 weeks after the robbery when the appellant was arrested. He did not then have a skinhead haircut.  The victim described the male (both in his first statement and a later statement) as wearing a light blue turquoise sweatshirt with black tracksuit bottom. In evidence the victim said that the male looked at him for a few seconds and that he had had a clear view of him. The male left the carriage and returned a minute later with 15-16 males. The appellant’s phone was snatched by a 14-15 year old male 5’8” to 5’9” tall with short ginger hair, almost skinhead with white Nike tracksuit bottoms. That male ran off and the other males surrounded him and he was searched for further items and kicked in the chest. The males then ran off- the whole incident taking about 2 minutes. 
4.	The victim subsequently identified the appellant as one of some 15/16 males who had taken part in the robbery, saying “I am not 100% sure but I think it is number 6”.  The appellant’s image was number 6. In evidence he was to say at one point that he was sure. However at the time of the video identification parade he said that the person who he was identifying was the person who robbed him of the mobile phone. But that person was, according to his first statement, much younger, shorter and had ginger hair. Later, the officer in the case spoke to the victim again and he said that the person whom he had picked out on the parade was the person whom he described first coming into the carriage. 
5.	CCTV single shot colour images had picked up a group of males on the station at Mill Hill whilst they waited for the train and the station at Hendon leaving after the robbery (there were no CCTV images of what happened on the train). One of those images showed a young man with shortish hair leaving the train using his top to cover most of his face. That image was circulated and a PC Gittings purported to identify that person as the appellant. The officer did not have any particular expertise in this area. However, the person identified in this way as the appellant was not wearing a light blue turquoise sweatshirt, although others were, and not wearing black tracksuit bottoms. The person identified as the appellant was wearing a dark sweatshirt and dark blue jeans. 
6.	The case was set down for trial on 9 August and on that day the victim attended to give evidence. At 11.16 Mr Culver told the judge that the prosecution were not ready to proceed because of difficulties concerning CCTV. Mr Culver explained to the judge that the problem with the CCTV evidence was that the officer had printed the appellant’s name on to the images said to be of the appellant. Mr Lynn objected to that and Mr Culver shared Mr Lynn’s concern. The judge did not accept those concerns. Mr Lynn made the point that if the jury were presented with the video footage where one of the persons has a name stamped above it the jury are bound to make an assumption that it is him. To that the judge replied that he did not proceed on the basis ‘that all jurors are idiots, frankly’. The judge refused to give effect to Mr Lynn’s objection and said that they would start when there was a sufficient panel. 
7.	The case was called on again at 12.42. Mr Culver told the judge that the case was under ongoing review but that “we should proceed as far as we can”. He told the judge that his instructions were to continue with the case and that he thought it unlikely that his instructions would change. Mr Culver told us that, being concerned about the quality of the identification evidence, he had wanted to discuss the matter with the CPS.  He told us that he was told that, if the witnesses had attended, he should proceed with the trial. The judge unsurprisingly was not happy to be told that the case was under ongoing review. Mr Culver then explained his concerns. He told the judge that the person identified by the police as the defendant was not wearing a light blue turquoise top.  To this the judge replied that witnesses often get details wrong and it would be a matter for the jury.  Mr Lynn explained that at that stage the Crown were not seeking to rely on the opinion of the officer that the picture he had seen was Mr Ali only to explain how it was that the police had a picture of Mr Ali and he cautioned against reliance on this opinion evidence. 
8.	The judge said that the trial should start.
9.	The trial started after lunch. Mr Culver opened the case with no reference to the CCTV images.  It was his considered decision at this stage not to put the CCTV images into evidence and make an anodyne admission so that the jury could understand how it was that the appellant’s image was shown with others to the victim (no application was made to introduce bad character evidence).  His concern was that the man identified by the police to be the appellant was not wearing a light blue turquoise top and could not, if the victim was accurate, be the appellant. 
10.	The victim completed his evidence and was not shown the CCTV images. 
11.	There were further discussions with the judge in the absence of the jury at the end of the day. 
12.	Mr Culver told the judge that he was not going to refer to the CCTV evidence at all because it only added a layer of confusion rather than give any assistance. The judge was not happy with what Mr Culver was saying. The judge said: 
It is admissible evidence, it is actually in my view significant evidence. I think that the evidence should be called, I am very unhappy that admissible evidence is discarded.
13.	The judge had not seen the CCTV images but had seen black and white photocopies  of the CCTV images identifying by name the defendant. 
14.	He told Mr Culver:
Can you just be clear what your role is, it is your role to present the admissible evidence. ...Your role is not to discard admissible evidence.
15.	He went on to say “the CCTV definitely needs to be shown because it actually shows this defendant getting off this train, does it not.” Understandably Mr Lynn objected at the judge saying this in the presence of the defendant. Mr Lynn tried to point out that the judge had not seen the video to which the judge said: “Mr Lynn, Mr Lynn would you sit down I am talking to your colleague.”
16.	The judge then asked Mr Culver whether the video showed the defendant getting off the train. We interpose to say that the image to which the judge probably had in mind was the image showing a man covering his face shortly after he had left the train, being the image identified by PC Gittings as that of the appellant. Mr Culver replied:
It shows him getting on to the train and at a later stage it shows a number of youths leaving the train station… and there are various issues that arise as a result.”
17.	The judge expressed his view that this was highly material evidence.  Mr Culver replied:
Well the difficulty is this your honour, the identification has focused a good deal about the physical description, but there is also this issue of a turquoise top. Now the reason I have had reservations about it is because of the labelling that has occurred … 
18.	The judge interrupted saying (with reference to the labelling): “we are all grown ups, for goodness sake.” Mr Culver continued:
Well because of the labelling your Honour, that labelling goes to an  individual in a dark coloured top. The identification ... of the victim in the case relates to someone in a turquoise top. 
19.	The judge said he would look at the CCTV evidence in the morning. 
20.	Mr Lynn later said:
 I am sorry I did not mean to interrupt your Honour, but it is slightly disconcerting when you are defending somebody whose case is that he was not on the train to hear the trial judge say that the video shows him on the train. It does not, that is what the prosecution case is. It is not what the defence case is. Forgive my slight note of frustration hearing your honour referring to it.’ 
21.	To this the judge replied: “This may be evidence against your contention.” Mr Lynn said that it was only the opinion of the police officer who has not even been called to give evidence. The judge said: “Well maybe he should. I mean this is admissible evidence, an officer saying that in my opinion this is Ali.” Mr Culver came back to his concern that the evidence from the officer is contrary to the evidence from the victim and that someone had clearly made a mistake. 
22.	Again, the judge said that it is quite often that people get a detail of the clothing wrong and he thought Mr Culver was blowing this whole matter out of all proportion. He went on to say:
If you call admissible evidence from a police officer to the effect that in my opinion this is Ali on the tape, the defence argue is wrong because he has not got a turquoise shirt. It is a matter for the jury, that’s how it works. It does not work by the prosecution caving in and saying OK well we will not call half our case. That is not how it works.’ 
23.	Mr Culver did not give up. He said that he had not caved in but that he thought that in relation to the evidence of PC Gittings it could be dealt with by means of an admission and by having him here. The judge said that he thought that Mr Culver would be very wise to get the officer here. He said that the officer had to be here so that the question of whether PC Gittings had rightly identified the defendant could be explored in front of the jury. The judge said: “so he must be here in the morning”. 
24.	Mr Lynn then said: 
Well what about in effect that I was told by my learned friend, no doubt for sensible tactical reasons that he was not going to be relying on this video, but the result that the complainant has now given his evidence and not been asked anything about the video at all. This point that your honour is saying has been blown out of proportion by my learned friend is not – with respect to either of you – been blown out of proportion, it is a significant point, in that the victim says that the fellow that came through into my compartment was wearing a turquoise top. Your honour is happy enough to say to the jury presumably that you can rely on this man’s evidence of identification and note of detail in other regards, but with regards to his clothing it is quite plain from the video that there are at least three people there wearing turquoise tops, and the person that we understand PC Gittings purports to identify as the defendant is plainly not one of the three people wearing a turquoise top … 
25.	To this the judge said “these are issues for the jury and there is no point rehearsing jury issues with me.” It was then agreed that the victim of the robbery would be brought back the next day so that he could be shown the video. 
26.	Mr Culver remained concerned that the jury ought not to see video images labelled “Ali” and he obtained a version of the CCTV footage without the labelling.  He was right to do so.  
27.	In the morning the victim was recalled. When shown the CCTV the victim did not recognise anyone.  He did not pick out the appellant.  Mr Lynn, so Mr Culver told us, drew the victim’s attention to the fact that on the images there was a male wearing a turquoise top and dark tracksuit bottoms. He asked whether that may have been the person whose role the victim had attributed to the appellant.  The victim accepted that this was possible. The male wearing the turquoise top and tracksuit trousers was in fact next to the man said by the police to be the appellant (although the witness was not told that). There is no reference to this important cross-examination in the summing-up.  Indeed in refusing the submission that there was no case to answer and in his summing up, the judge said that the description given by the victim was accurate, apart from the reference to the light blue turquoise top. That was an error. 
28.	After the victim had given evidence, PC Gittings was called to say that he had identified the man shown with his top covering much of his face as the appellant.  DC Ganly was called and he produced the CCTV images.  He was, we are told, not asked to identify anyone on them. 
29.	When the appellant gave evidence the CCTV images were played.  He was asked whether the person seen in various images was him. When the appellant was shown the single frame identified by PC Gittings as showing the appellant and asked whether it bore a remarkable similarity to him, the appellant said it could be anyone. The judge intervened on more than one occasion and said after a number of questions had been asked: “You are being asked for your comments, and the question put, is [this image] being a remarkable similarity to you, what do you think? The appellant eventually accepted a remarkable similarity but said that it was not him. He was then shown one of the frames of those about to join the train. And he was again asked whether or not that male bore similarity to him and he said yes. 
30.	In his summing up the judge, dealing with the issue of identification, said:
Now the case against the defendant depends to some extent on the correctness of an identification of him at a video identification parade by [SH]; which the defendant says is mistaken. Now I have said to you that it depends to some extent because there are really two important strands of evidence here. There is [SH’s] evidence, but there is also the CCTV evidence, both before the group get on the train and when the group get off the train. 
31.	In this passage the judge, so it appears to us, was telling the jury that they could convict if the person said to be the appellant on the CCTV images was the appellant. That was not, so Mr Culver told us, how he had put the case.  He continued:
Since the group getting off the train are running away, hiding their faces from the CCTV, and there is no dispute that is from the train where this robbery took place; you can see that there are two important strands of evidence in this case. 
32.	The judge then gave the standard JSB direction regarding the evidence of SH and continued: 
Now in this context you need to have in mind three things: At the video identification parade [SH] said that he was not one hundred per cent sure of the identification. Of course you can also have in mind that when he gave his evidence, [SH] said to you that he was sure that he had not made a mistake and therefore that his identification was correct. Second, at one stage he identified the man as the man who patted down his pockets and robbed him of his mobile phone, but he also said that that man was a shorter man with ginger hair. Now that issue was later clarified by the taking of a further statement in which he said, No: the man he had identified was not the man who had actually grabbed his mobile phone, he was the man who first came into the carriage and if you like did the rekkie before the other men arrived. Third, he said that the man had a turquoise top. Whereas the defendant as you have seen from the video, was not wearing a turquoise top. The remaining description, it appears to he agreed, is accurate, but what he said about the top was wrong. (Emphasis added)
33.	We observe that the judge referred to the image on the CCTV that the prosecution said was the appellant as ‘the defendant’. Given that was the very issue the jury had to decide, this was an unfortunate use of language. The last sentence is also unfortunately worded - what SH said about the turquoise top (and the tracksuit trousers) was only wrong if the jury were sure that SH had correctly identified the appellant. The judge continued:
So have to look at those points carefully, but in looking at the safety of the identification you can also look to see if there is supporting evidence. In this case there is supporting evidence which you should consider. First of all, the defendant was identified by PC Gittings as one of the men running away from the train at Hendon railway station trying to cover their faces from the CCTV. 
34.	We have doubts, notwithstanding Mr Culver’s arguments to the contrary, whether the fact that PC Gittings identified the appellant was supporting evidence.  PC Gittings was not purporting to give expert evidence and the image showed only a portion of the appellant’s face. 
35.	In any event, the directions given were quite inadequate. Although recognition may be more reliable than identification by a stranger, the risk of a mistaken identification remains and it is incumbent on the trial judge to direct the jury in such a way that they fully understand that mistakes can be made and have been made in the past in purported recognition of those with whom a witness believes he is familiar.  No such direction was given in relation to the evidence of PC Gittings either in the judge’s directions of law or when he, briefly, reminded the jury of his evidence. On the contrary, the judge appears to have treated PC Gittings’ recognition of the appellant as an established fact when he said:
Well you heard evidence from PC Gittings.  He explained to you that he deals with the public for many reasons.  Information was circulated by the police as intelligence. They have a system for doing that, stills go on the system and members of the British Transport Police can identify anybody they recognize.  He recognized him as Faraz Ali from the still at Hendon.
36.	The judge continued:
Second, there is the evidence of your own eyes. The video and the stills are your exhibits and you can use your own eyes. There is the still of the man running away at Hendon which PC Gittings identified, but there are at least two clear views of the same man’s face at Mill Hill station. You can take, if you think it right – and you must be careful about this of course – you can yourselves look at the man on the platform – and I say there are at least two clear views of his face – and you can form your own view about it. It is important that you do not simply leap to that conclusion and that you consider the matter carefully. You are certainly entitled to use your own eyes in this respect and you need to see the video again then you only need ask and that can be arranged.
37.	We called for the CCTV footage itself, because the black and white images were not good enough.  Having watched the footage a number of times, we could identify only one image which could be said to be in any way “clear”, MJG/SUS2/03.  Mr Culver drew our attention to MJG/SUS2/05 and MJG/26. Neither could be described as “clear”.  
38.	The jury asked for the CCTV footage to be replayed to them after they had retired.  The jury came back into court, so it is agreed, watched the video and members of the jury were then obviously comparing the images with the defendant himself.  They retired for a few minutes and returned with a verdict of guilty. 
39.	We have our doubts as to whether even the clearest of the images was sufficiently clear to permit a comparison by the jury with the defendant in the dock- we are inclined to think that only an expert might have made a meaningful comparison.  We had the advantage of seeing the appellant in Court and none of us felt sure that the image was of the appellant.  Incidentally the judge did not remind the jury that they needed to be sure if they were going to rely on the images to convict the defendant either alone or in support of the evidence of SH. In AG’s Ref. (no. 2 of 2002) [2003] 1 Cr App R 21, this court identified at least three circumstances where a jury may be invited to conclude that a defendant committed the offence by looking at an image or images captured at the scene of the crime:
(1) where the image is sufficiently clear to permit a comparison to be made with the defendant;
(2) where the image is identified by a witness who knows the defendant sufficiently well to recognize him;
(3) where the identification is based upon opinion evidence from either a facial mapping expert or other experienced witness who has acquired specialist knowledge by spending substantial time viewing and analyzing images captured at the scene of the crime.
40.	In any event, as this court said in Blenkinsop [1995] 1 Cr App R 7, there is a general and invariable requirement for the judge to direct the jury so as to warn them of the risk of mistaken identification and of the need to exercise particular care in any identification which they make for themselves.
41.	Here, although the judge did direct the jury that it was important not to leap to the conclusion that the person on the images was the appellant and that they must consider the matter carefully, he did not give any warning at this point in his summing up as to the dangers of possible mistaken identification.  Although he had given a Turnbull direction earlier in his summing up in relation to SH, in our judgment, the circumstances of this case demanded a careful and full direction as to the dangers of mistaken identification when he invited the jury to “use your own eyes” when comparing the CCTV images with the appellant. See also Dodson and Williams (1984) 79 Cr App R 220, cited in Blenkinsop. 
42.	We have no doubt that the conviction is unsafe.  The appellant most unfortunately lost his place on a University course when he was sent to prison for this offence and it is most unfortunate that this appeal has taken some 11 months to come on for hearing, during which time he completed the custodial part of his sentence.  He leaves this court exonerated of this charge.