16th Aug 2012
The appellants (F and V) appealed against their convictions for murder.
One night a man (B) had witnessed his brother being shot and murdered by two men in a minibus before they drove off. B claimed he recognised the two men as F and V, though he only knew V by a nickname and not by his proper name. F and V were convicted by a jury of murder and sentenced to life imprisonment.
F and V argued that (1) the judge had failed to give the jury appropriate directions in relation to B’s identification evidence, and in particular that he had failed to advert the jury to the dangers associated with such evidence, especially by not warning that B could be convincing but mistaken; to make it clear that B had not given the police a description of the persons in the minibus which potentially impacted on the reliability of his evidence; to sufficiently highlight the inherent dangers in purported recognition cases; to address matters that casted doubt on the reliability of B’s evidence; (2) the judge had erred in characterising the case as one of recognition, had not adverted sufficiently to the fact that an identification parade had not occurred, and had allowed F and V to be subjected to impermissible dock identifications by B; (3) their trial had been prejudiced by the conduct of their counsel, particularly because their counsel were not present for all of the judge’s charge to the jury, they had failed to call certain witnesses, and the brevity of their closing submissions meant that they had not properly presented the case.
(1) The need for special caution when dealing with identification evidence had featured prominently in the judge’s charge and he had expressly referred to the reasons for such caution, namely because honest witnesses could be mistaken. It was not necessary for him to also say that B might appear convincing but could be mistaken: an apparently honest witness would normally be convincing, and to require a judge to prescribe repeated layers of caution, drawing distinctions between patently honest witnesses and convincing ones, was likely to confuse rather than properly inform a jury. The judge had adequately reminded the jury of the need to examine carefully the conditions in which B claimed to have identified F and V, including the lighting, the amount of time B claimed to have observed the men and their respective positions. The obvious reason that B had not recorded a detailed description of F and V was because he had identified them as persons he recognised: if the judge had invited the jury to consider that a possible description by B of F and V which had not been given but which, if it had been given, might have raised questions about the reliability of his evidence, it was likely to have confused the jury on how to deal with the actual evidence and would have been a speculative exercise. Further, the judge had warned the jury that the need for caution in a purported recognition case was as great as in identification cases in accordance with the Turnbull guidelines: he advised the jury to examine closely the question of whether B was correct in his claim to have known F and V and whether he had sufficient opportunity to register their features so as to be able to make a reliable identification. The judge had also drawn the jury’s attention to possible inconsistencies in B’s evidence. Accordingly, the general challenge to the judge’s charge failed (see paras 18, 20, 22-24 of judgment). (2) The fact that B did not know V’s proper name was irrelevant to whether it was a recognition case: B’s acquaintance with F and V was extensive and the judge was plainly right to direct that it was a recognition case. The failure to hold an identification parade had not caused a serious miscarriage of justice, and holding one would not have served a useful purpose, R. v Popat (Chetan) (No.1)  2 Cr. App. R. 208 considered. As to the allegation of dock identifications, B was merely confirming that F and V were the persons he had previously identified to the police as responsible for the crime: they were not dock identifications but a mere formality, Stewart v Queen, The  UKPC 11 applied (paras 27, 29, 32, 34, 36). (3) Since the judge’s charge to the jury was unobjectionable, it would have made no difference if V and F’s counsel had been present at the charge because there were no deficiencies that they could have corrected. Further, if counsel had called the additional witnesses, their testimony would not have assisted F and V’s case in any material way, and there was no evidence that the shortness of the closing submissions had impacted on the outcome in the case (paras 39-41).
A judge’s directions to a jury in respect of the correct approach to be taken in a case where a man had purportedly recognised the two men responsible for murdering his brother were correct and in accordance with the Turnbull guidelines: he had drawn the jury’s attention to the inherent dangers involved in purported recognition cases, had instructed the jury to have regard to relevant factors, and had adverted them to possible inconsistencies in the identification evidence.