Bacchus, R v

LORD JUSTICE KAY: On 27th September 2000 in the Crown Court at Nottingham, before His Honour Judge Pitchers and a jury, the appellant was convicted by a majority of 10 to 2 of an offence of robbery. He was sentenced to four years' detention in a young offenders institution, consecutive to sentences for further offences of robbery and deception which had been tried in the June. The total sentence was one of eight years' detention in a young offender institution. He now appeals against the matter, the case having been referred to this court by the Criminal Cases Review Commission. We can take the matter relatively briefly because of the position of the Crown.

The offence in question was a relatively straightforward one. On 5th April 1999 a young woman was alone in her flat when a group of men entered through a window and stole her watch. She had seen them arrive in a red motorcar. She fled from her flat and sought help from a neighbour. When she returned she saw the men leaving in the red car and she wrote down the registration number, as did Mr Hepden. At a subsequent identification parade she did not identify the appellant or one of his co-accused, although the co-accused's fingerprints were found on the window frame of her flat and in his interviews he, the co-accused, accepted presence at the scene but not participation in any offence. The appellant in his interview made no comment, except to say in a general way that he was not guilty.

There was CCTV evidence showing the arrival of the five men in the car near the flat, but it did not show which of them went in. It was the prosecution case that the appellant was one of the robbers, and in order to establish that fact they relied upon expert evidence from a Mr Harrow. He compared the video of the five men arriving at the scene in a car with CCTV footage from other robberies at approximate times at which it was accepted that the appellant was present. Mr Harrow also used for the purpose of his comparison items of clothing from the appellant at the time of his arrest.

It is accepted on behalf of the prosecution that if the evidence of Mr Harrow was not available there would have been no sufficient case to go before a jury.

The stance of the Crown is dictated by their knowledge of Mr Harrow. The simple fact is that they, as a result of consideration of a number of cases, have come to the conclusion that Mr Harrow's methods are not such that they can be confident of the reliability of his evidence. This has resulted in the Crown Prosecution Service ceasing to instruct him. Indeed, he was suspended from his employment at a bureau as a result. He has now returned.

The Crown, therefore, say that the evidence upon which they relied is not evidence that they can invite the court to say can form the safe basis for a conviction.

In those circumstances, with commendable reality, the Crown have come to the conclusion that this appeal has to be allowed. We obviously agree. Unless one can be sure that the jury could safely act on Mr Harrow's evidence, any conviction has to be viewed as unsafe. The Crown are now in a position where they no longer contend a jury can place that sort of reliance on his evidence and consequently the resulting conviction has to be seen to be unsafe. For those reasons, we allow this appeal.