Phillips, R. v

MR JUSTICE DAVID CLARKE: On 12th May 2006, in the Crown Court at Inner London before Mr Recorder Boothby and a jury, the appellant, Alan Phillips (who is now 28), was convicted by a majority verdict of 11 to 1 of an offence of aggravated burglary. On 4th October he was sentenced to eight years' imprisonment for that offence. He now appeals against his conviction by leave of the single judge.

In brief summary the facts of this case are as follows. On 6th December 2004, at about 2.45 am, two men broke into the home of Felmin Grant and Emma Barrowman. One of the men was wearing a bandana and a hood which obscured his face. He had a silver firearm, or imitation firearm, and demanded money and keys. He gave orders and made threats as he pushed the complainants around. The other man was undisguised. The two men searched the flat and left and the complainants then noticed that a mobile phone was missing. The incident lasted between about 5 and 20 minutes.

The complainants both knew the appellant by his street name of "Kitten", and after the burglary they both said that they recognised the man with the bandana as Kitten, that is the appellant.

On 7th February 2005 the appellant was arrested. He was wearing a pair of trainers, and a footprint from the door of the complainants' flat was found to be of the same type and about the same size as the trainers that he was wearing at the time of his arrest. There was subsequently a video identification procedure at which both complainants picked him out.

The prosecution case was that he was the burglar wearing the bandana, that he had disguised himself because he was known to the complainants, they had both spoken to him on previous occasions and recognised his voice, and the Crown relied on the positive identification by the complainants, together with the forensic evidence in relation to that footprint.

The defence case was that the complainants were mistaken in their identification of the appellant; they were known to each other by sight, but he had never spoken to the complainants and had never been to their flat; he had been with his girlfriend at the time of the burglary; the forensic evidence did not corroborate the identification since shoes of that type and size were common and there was no specific identifying feature of the footprint found.

A second man, Osman Banjura, had been charged with the offence and had been separately indicted and tried. He was alleged to have been the second man, undisguised at the time of the offence. It appeared that the complainants had given evidence at that trial, but Banjura was found not guilty on the judge's direction. The evidence against him was that his palm print was found on the damaged door to the flat, that a jacket with a sheepskin lapel identical to one worn by the burglar who did not have the bandana was found at Banjura's address, and a silver gun and some gas bottles and pellets were also found at that address.

Counsel requested a transcript of any evidence given by the complainants at Banjura's trial, or an opportunity to listen to tapes of that evidence, before the complainants gave their evidence in this trial. We will return later to the discussions about the disclosure of this and other material from Banjura's trial, which gives rise to ground 4 of the present appeal. However, it is apparent now that neither complainant had picked out Banjura on the video identification. Furthermore, at the time of Banjura's trial the silver hand gun recovered from his address, which had not been shown to the complainants, had not been brought to court as it should have been.

It is necessary, in view of the issues before us, to summarise some of the evidence of the two complainants on the issue of identification. We have the benefit of a note of their evidence, albeit not verbatim, which has been helpfully agreed between counsel.

Felmin Grant gave evidence that at about 2.45 am on 6th December 2004, he heard the door crashing in and two men came in. One had a bandana over his nose and a blue hooded sweatshirt with a hood pulled up. He held what looked like a gun in his hand. He made threats to shoot and demands for money and keys. The burglars looked around and touched things. They were not wearing gloves. When the man with the bandana spoke, Mr Grant said that he recognised him straightaway by his voice and general appearance as "Kitten", but the man never removed the covering from his face. In cross-examination, Mr Grant said that the man with the bandana had called him "Pussy". Grant's street name was "Shally" or "Shang", but the man with the bandana did not use those names and did not use the name of Emma Barrowman either. He said that he had last seen the appellant about a month before the incident, and that was the last time he had spoken to him. He agreed that he had recognised him from his voice rather than from appearance. He denied that he could have been mistaken. He was understandably cross-examined about the extent of his acquaintance with the appellant. It was suggested that that acquaintance was very limited, and he agreed. He accepted that, when he identified the appellant at the identification parade, he picked out the man he knew as Kitten.

The prosecution applied to re-examine Mr Grant about the nature of his previous meeting with the appellant to counter the suggestion put in cross-examination that he had only spoken to him when sitting in his car, the appellant standing on the pavement. It transpired that Mr Grant had told the police, though only on the day of trial, that he had, about a month before the burglary, sent a message to the appellant to come and see him to discuss some money. His girlfriend, Emma Barrowman, had given her childminder £60 to pay the rent and the childminder had said that the appellant had taken that money. Mr Grant had said to the officer that when the appellant came to see him there was a discussion and he agreed to give the money back, that discussion taking place inside the flat.

Counsel for the appellant resisted the application to re-examine along those lines. He submitted that to introduce the suggestion that the appellant had stolen money from the childminder was hearsay and would be prejudicial and unfair; all that was relevant for present purposes was the length and location of the meeting.

The recorder ruled that it was an important issue whether Mr Grant had formed a strong and clear enough impression of the appellant to recognise him from his voice and appearance on the night in question. The impression made by casual conversation in the street was quite different from the impression that would be made by a discussion, or even an argument, in the circumstances described. He ruled that the prosecution could re-examine, and in the re-examination which then followed Mr Grant gave evidence to the effect just described.

Miss Barrowman gave evidence that she was in bed. She heard the front door being kicked in. She jumped out. She saw two men who were both of slim, muscular build, one wearing a bandana under his nose and a hood. She recognised the man with the bandana as "Kitten". She said she knew him because he used to go to school with her ex-partner, Leon, at a particular school, which she named. However, the prosecution made a formal admission at the request of the defence that the appellant had not in fact been a pupil at that school. Miss Barrowman said that she had last spoken to Kitten about a month before, outside her house. In cross-examination she said that the police had never shown her photographs of the gun or coat from the Banjura trial.

The appellant, when he gave evidence, agreed that he knew the complainants by sight, but said that they had never spoken to him, nor he to them. He knew of no reason why they would invent anything against him. He knew nothing about the alleged earlier incidents. He had never been in their house either on that day or at any other time. He said that, following his arrest, he had been able to work out where he had been on that particular night. He had won second prize in a karaoke competition and he had then gone by bus to his girlfriend's home and remained there. He had told his solicitor this but had nevertheless been advised to remain silent at interview.

Against that background, the appellant puts forwards six grounds of appeal, in respect of all of which the single judge granted leave. We deal with them in turn. The first is that the recorder failed to give an adequate Turnbull direction suitably tailored to the issues in this case. This was not the usual case of a disputed identification under conditions which are said to make it difficult for the complainant to get a clear and reliable impression of features. Neither complainant claimed to have recognised the appellant facially. Mr Grant said he could not make a visual identification. He accepted that at the identification parade he picked out the man he knew as Kitten, whose voice and general appearance he believed that he had recognised. Miss Barrowman said that she recognised him by his voice and his eyes.

What the learned judge said in summing-up in relation to identification was as follows, reading from page 9 below letter B:

A number of criticisms are made of this passage. First, that the warning to the jury as to the danger of identification evidence and of the special need for caution before convicting on that evidence, being the first element of the direction under Turnbull (set out in Archbold at paragraph 14-17) was not given. Though the judge did refer to mistakes made by honest witnesses, he related his warning only to the difficulties of fleeting glimpse identifications, which this was not. This was a purported recognition case, albeit by voice and general body shape and appearance rather than facial recognition, but there was no warning that even mistakes of recognition can be made, nor was the conventional warning that even an apparently convincing witness may be mistaken. There is a further complaint that the recorder failed to draw to the jury's attention weaknesses in the identification evidence, particularly the specific concessions of the complainants that they could only identify him by his voice and general appearance or, in Miss Barrowman's case, his voice and eyes. Some criticisms were made of the VIPER identification parade and of the failure to conduct any form of voice identification procedure. There was no reminder to the jury of the weakness, though this may be a point of detail which need not have been mentioned in this context, in relation to the school named by Miss Barrowman.

The point is developed further in the context of the second ground, where the main complaint is that the recorder summarised the evidence of the two complainants compendiously and not individually and thereby elided the evidence that the two of them gave. He referred on a number of occasions to "their" opinion and "their" judgment, without a specific reminder that the evidence of the two witnesses was different and needed separate evaluation.

Mr Conlon, in response to these submissions, submits that the identification direction, in a simple and short case where the evidence was not lengthy, was adequate in the circumstances of the case. Furthermore, he argues that it was supported by the evidence relating to the foot mark. He also submits that the evidence about the gun was also material capable of supporting the identification evidence, though that was a submission which we found it difficult to follow. The finding of a gun in Banjura's premises might well have been, and was no doubt, evidence supporting the case against him, but it does not seem to us capable of supporting the case against this appellant in the absence of any evidence linking him with Banjura.

Mr Conlon also submitted in writing that the appellant's argument ignores the forceful and definite manner in which the witnesses' evidence was given, and he went so far as to invite this court to listen to the tape of the evidence that was given. We would not have accepted that invitation. Counsel's submission appears here to be based on the emphatic certainty of the two witnesses, which itself highlights the necessity of the very warning, not given, that even convincing witnesses may be mistaken.

Looking at this matter as a whole, we have concluded, with some regret so far as the learned judge is concerned, that there is substantial force in the appellant's submissions. This was a case of disputed recognition of general body shape and voice. It would be necessary in such a context for the jury to consider various matters, including how well did the complainants know the man that they called Kitten; what were his physical characteristics; what sort of opportunity did they have to assess the shape and general appearance of the man with the bandana; how far did the clothes he was wearing mask his shape, and even perhaps, as my Lord suggests, his voice, if the bandana covered his mouth; how well did they know his voice. Though some of the elements of a standard Turnbull direction were absent, the recorder directed the jury in a way that would have been in general terms appropriate in a conventional identification case, though in our judgment still far from ideal, but in this case there were other matters than visual observation playing an important part. In our judgment the learned recorder should have reminded the jury of the specific weakness that the complainants were unable to recognise the face, should have given the direction that even convincing witnesses may be mistaken, and that mistakes can be made in recognition cases as well as in identifications of strangers. Insofar as the complainants relied on voice identification, and they must have done so to a considerable degree, no warning equivalent to a Turnbull direction was given in accordance with cases such as Hersey [1998] Crim LR 281 and other cases.

Each member of this court reading the summing-up was left with the clear feeling of unease that the dangers of the identification evidence in this case, particularly recognition which is a form of identification evidence, were not sufficiently drawn to the jury's attention. Furthermore, in such a case we have no doubt that this conclusion is sufficient to undermine the safety of the conviction. The other evidence, the foot print evidence, was consistent with his guilt, but not probative of it. In the light of that conclusion, we deal with the other complaints rather more briefly.

The second ground of appeal is that the learned recorder failed to remind the jury of certain important pieces of evidence, namely the circumstances surrounding the arrest of Osman Banjura and the sheepskin jacket and gun that were found at his flat. It is also submitted that he failed to remind them of aspects of the identifying witnesses' evidence, with which we have already dealt.

So far as the Banjura evidence at trial is concerned, Mr Abell, counsel for the defence, had extremely limited information about that trial at the outset of this one. At the beginning of the trial information did become available, including the finding of the palm print and the gun and the item of clothing, and counsel was therefore able to argue that Mr Banjura, despite his earlier acquittal, was involved. That, in turn, in the absence of any evidence that the appellant had any form of connection with Banjura, strengthened the appellant's case. Mr Abell went so far as to submit that, in view of the palm print of Banjura but in the context of the failure of the witnesses to identify him as the undisguised man, he could well have been the man who was disguised with the bandana. The jury, it is submitted, should have been reminded of this line of argument in the summing-up, and counsel made further complaints about the failure to do so after the jury had retired.

Mr Conlon submitted in his skeleton argument that had the appellant not fled, the two men would have stood trial together, but in the present case in any event the defence could have called any evidence called in that earlier trial. This, in our judgment, missed the thrust of the appellant's argument. The complaint made here is not as to the unavailability of evidence, but as to the judge's failure to remind the jury of that evidence and of that line of argument, however briefly.

We think there is force in this submission too. This was a brief summing-up. It was none the worse for that. A judge is not bound to refer to all the evidence or to remind the jury of every argument which has been advanced by counsel. The issues were uncomplicated, the jury had heard counsel's speeches before the summing-up, but the absence of any reference to the point made with emphasis by Mr Abell about Mr Banjura and his trial and the evidence relating to him may have led the jury to believe that it was of no significance at all.

Ground 3 relates to the re-examination of Mr Grant, to which we have referred. Unusually, when the application was made the witness was questioned in the absence of the jury to see what he would in fact say about that earlier encounter, and he gave the account which we have summarised. The learned judge was persuaded to admit the evidence. He was not prepared to impose artificial limits on the evidence so as to exclude reference to the theft of £60 that was alleged.

We would hold that this ruling was correct. The source and extent of Mr Grant's knowledge of the appellant were in issue. So long as a sufficient direction was given to the jury as to what use they might make of this evidence, then, in our judgment, it was properly admitted. What the judge said in his summing-up was this (page 11, letter B):

We turn to grounds 4 and 5, by which it is contended that the Crown failed to comply with their duties of disclosure regarding the arrest, investigation and trial of Banjura for the offence of which the appellant was to be tried, and that the recorder should have granted the adjournment which was sought on the day of trial.

We have read the transcripts of the exchanges between counsel and the judge on the day of trial with a mounting feeling of concern. The position appears to be as follows. The defence were aware of the arrest of Mr Banjura only because his name had been mentioned in the original police interviews of the appellant conducted in February 2005. They had no actual knowledge whether he had been prosecuted or of the result, and that information was therefore sought in the defence statement in the request for disclosure. It was properly requested in our judgment, particularly in case it might transpire that the victims had provided descriptions or given identification evidence in that trial which would need to be compared with what they might say in this one.

No such information was provided. No such disclosure was given, despite specific case management orders made by the court on 23rd March, 10th April and 2nd May. On 10th April, before His Honour Judge Campbell, the judge criticised what he called the total lack of preparation by the Crown. He said it could not be argued that the Crown had acted with due diligence; this in the context that a later application to extend the custody time limit might be needed. In fact, the custody time limit was to expire in the week that this case was listed for trial. On that day, 10th April, Judge Campbell specifically directed disclosure by 19th April. It was not given, and at yet another hearing on 2nd May the Crown were ordered to disclose the material by 4 pm on 4th May, the trial being listed for the following week. On the trial date, 9th May, still no such disclosure had been provided.

We have considered the exchanges which took place then between counsel and the judge, in which the judge was insistent on the trial proceeding that afternoon even though the police file -- not, we note, any papers from the Crown Prosecution Service -- was not produced at court until 1 pm in a form which placed counsel for the defence in great difficulties and caused embarrassment to the police officer who produced it, since this file contained material which might well not have been susceptible to disclosure had the matter been properly considered by the Crown Prosecution Service. Towards the end of the exchanges that took place the judge felt his patience sorely tested by the complaints which were being persistently but properly made by Mr Abell, and there are passages in the discussions thereafter which both counsel and the judge might regret in hindsight.

Counsel for the Crown, meanwhile, was submitting to the judge that it would have been open to the defence to make their own enquiries as to the course of Banjura's trial and the evidence given. Before us in his skeleton argument, Mr Conlon submitted that the defence would have had a representative at court at the Banjura trial because the appellant failed to appear to stand trial with him. It appears that even up to today counsel had not been accurately instructed as to what occurred, because the fact is that by the time of the Banjura trial not only was the appellant not a joint defendant expecting to be tried, but he had not yet been charged. What had occurred was that he had been interviewed soon after his arrest, he had been bailed to return to the police station for further interview, and he had not attended. We are told that there was a warrant for his arrest in existence from then on. But counsel still maintains before us that the defence could and should have made their own enquiries and ascertained for themselves the fact that there had been such a trial, its result and the evidence given.

We have now been able to examine a bundle of papers about the Banjura case, helpfully, but belatedly, provided by the Crown Prosecution Service since the conviction of the appellant. In the end, we are not persuaded that there was substantial material there which might have given further strength to the appellant's arguments in his trial. In this case, though in considerable difficulties, Mr Abell, counsel of many years' experience, was able to absorb sufficient to enable him to make of this material most, if not all, of what there was to be made. The missing link, drawn to our attention today, is the defence statement of Mr Banjura, in which he asserted that he did not know this appellant. That is an additional piece of evidence which Mr Abell might have wished to try to deploy by some means in this trial, but despite that conclusion that we are not satisfied that it made any material difference, we do not hesitate to describe the failure of the Crown to deal properly with disclosure, in defiance of orders made on two occasions, as lamentable.

in a number of recent decisions of this court it has been made clear to Crown Court judges that they should be robust in case management decisions and that this court will strive to uphold them. Active hands-on case management, both pre-trial and during the trial, is an essential part of the judge's task. The decisions of this court should be well-known, but we refer to Chaaban [2003] EWCA Crim 1012, Jisl [2004] EWCA Crim 696 and most recently Lee [2007] EWCA Crim 764. No doubt it was with these judgments in mind that the recorder was robustly determined to proceed with the trial that afternoon, but against the history which we have summarised, it would, in our judgment, have been better if he had been prepared to grant some more time for counsel to read and absorb the material which had been so belatedly disclosed. The decision that it should proceed then, yet still interposing further enquiries at the end of the day, in our judgment placed defence counsel, notwithstanding his experience, in considerable difficulties and distracted him from the primary task of conducting the defence.

We are not inclined to be unduly critical of the judge, however. The responsibility, as he and Judge Campbell had both remarked, lay with the Crown. Not only must judges be robust in their case management decisions, as Judge Campbell and the other judges who handled this case had been, but the parties who are ordered to take steps must take them. Case progression staff, both on the prosecution and defence side, must ensure compliance with case management orders. The responsibilities of prosecution and defence, particularly in accordance now with the Criminal Procedure Rules, are well-known. We are not, we must say with some regret, impressed by the grudging tone of one remark in the Crown's skeleton argument on this point, where counsel says "Appellant's counsel seemed to have the support of the trial judge and had been able to persuade previous judges that there was merit in these complaints". What is singularly lacking is any explanation, even now, of why the proper orders had not been complied with.

We turn finally to ground 6. This is a matter on which it has not been necessary for us to hear argument. The appellant sought leave to call his alibi witness to give fresh evidence in this court, the witness being his girlfriend, or as it appears one of his girlfriends, whose evidence would be to the effect that the appellant was in bed with her at the time of the offence. We express no more than a provisional view, which is that there would have been the greatest difficulty persuading this court that there was, for the purposes of section 23(2)(d) of the Criminal Appeal Act 1968, a reasonable explanation for the failure to adduce the evidence at the trial. The explanation given now is that the two had fallen out because when she was pregnant she heard that he was sleeping with his former girlfriend and would have nothing to do with him. But she was a compellable witness and no steps were taken to bring her to court. It would, in our judgment, be a rare case in which this court would countenance the calling of fresh evidence from an alibi witness of whose existence and whereabouts the appellant was aware but had who had been unwilling to attend to give evidence at the trial.

However, for the reasons that we have given earlier, the appeal against conviction is allowed and the conviction is quashed.

LORD JUSTICE MOORE-BICK: Mr Abell, the appeal is allowed, the conviction will be quashed. Subject to anything that you want to say, we are provisionally of the view that this matter could go to a re-trial. It is a very serious allegation.

MR ABELL: My Lord, I fully understand that. All that I can say is that it is a balancing exercise between the public interest -- and I am looking now at Archbold, Chapter 7, paragraph 112. Of course I accept the allegation is a very serious one, I fully accept that, and also the balancing exercise is to the legitimate interests of the defendant, which also calls for consideration. He has been, as a result of this conviction that has been quashed, in custody now for a very considerable length of time in any event. That is a factor to be considered.

LORD JUSTICE MOORE-BICK: Of course it is, but we would be minded to give directions which would ensure that the matter comes back on for trial as quickly as possible.

MR ABELL: My Lord, beyond what I have already said, there are no more submissions I can sensibly make on that point.

LORD JUSTICE MOORE-BICK: Right, thank you.

Mr Conlon, we take it you are seeking a re-trial in this matter?

MR CONLON: I am indeed.

LORD JUSTICE MOORE-BICK: We are satisfied that in this case the balance of interests is in favour of a re-trial. The sole count in the present indictment will be quashed. A fresh indictment shall be preferred. The appellant is to be arraigned on the new indictment within two months. We direct that the re-trial be held at -- it probably is worth giving directions for a trial to be held at a court to be determined by the presiding judge, is it not? I think that is the usual form, and that will ensure it comes on as soon as possible. We will make a representation order for junior counsel and solicitors on the re-trial.

MR ABELL: Thank you, my Lord.

LORD JUSTICE MOORE-BICK: The only other question is as to the fate of the appellant pending the re-trial. Is there anything you want to say about that, Mr Conlon?

MR CONLON: My Lord --

LORD JUSTICE MOORE-BICK: It is really for Mr Abell to make the application, is it not? He is currently in custody.

MR CONLON: He is indeed.

LORD JUSTICE MOORE-BICK: But his conviction has been quashed, so, subject to any order that we make, he would be entitled to go free, would he not?

MR CONLON: That would seem to be the case, yes. I would submit that since he no longer has a conviction against him, he is serving a term, is he not, so that term is taken away, so he is a free man unless --

MR JUSTICE DAVID CLARKE: No, we have the power to retain him in custody awaiting the re-trial.

LORD JUSTICE MOORE-BICK: He was on bail.

MR CONLON: He was on bail.

LORD JUSTICE MOORE-BICK: He surrendered to bail -- well, he did not --

MR CONLON: He was arrested.

LORD JUSTICE MOORE-BICK: He was arrested, but then he was in custody after that. Do you have submissions to make about whether we should --

MR CONLON: My submission was that you continue to remand him in custody because there is a history of him having not turned up before previously, and in fact -- I am not sure, do you have a list of his previous convictions?

MR JUSTICE DAVID CLARKE: There is a list of previous convictions.

LORD JUSTICE MOORE-BICK: You have seen that, I take it, Mr Conlon?

MR CONLON: I have, and I believe that they are in your bundle.

LORD JUSTICE MOORE-BICK: We have them.

MR CONLON: I would be relying upon that as to the likelihood of him committing offences. He has committed offences when on bail in the past.

LORD JUSTICE MOORE-BICK: Is there anything else you want to say, Mr Conlon?

MR CONLON: My Lord, no.

LORD JUSTICE MOORE-BICK: Mr Abell?

MR ABELL: Would my Lords bear with me.

LORD JUSTICE MOORE-BICK: Well, he did not answer to his bail on the last occasion.

MR ABELL: I would briefly, yes. We have not, I am afraid, had a chance to take detailed instructions as to residence, but I suspect that he could reside with his partner. Those who instruct me are taking instructions about that at the moment.

LORD JUSTICE MOORE-BICK: That is if we think it is appropriate for him to be at liberty at all.

MR ABELL: I understand that.

LORD JUSTICE MOORE-BICK: If we direct that he be remanded in custody for the time being, he can make his application to the Crown Court.

MR ABELL: My Lord, absolutely. That might be the more sensible way of dealing with the matter.

MR CONLON: My Lord, I would agree with that. That would be the appropriate course. It gives everybody time to put their tackle in order and address it accordingly, my Lord.

LORD JUSTICE MOORE-BICK: Well, we are of the same view. We will direct that he be remanded in custody, but he will have the opportunity to apply to the Crown Court for bail at the appropriate time.

MR ABELL: Thank you very much, my Lord.

LORD JUSTICE MOORE-BICK: Is there anything else that we need to deal with?

MR ABELL: No.