Mulgrew, R. v

LORD JUSTICE MOSES: This is an appeal against the conviction of this appellant for robbery. The issue which arises is as to the extent to which expert evidence read to the jury from an expert in facial mapping was correctly described as "some support, albeit limited" for the identification made by a police officer. That police officer knew this appellant, had seen him on frequent occasions some two years before he purported to identify him as the perpetrator of the robbery and had identified him from a still from CCTV by which the appellant had been caught.

The robbery took place on 11th June 2006. It was committed in a corner shop at about 7 o'clock in the morning. The man who was alleged by the prosecution to be the appellant had attacked the lone worker, Mrs Gupta, behind the counter. He was wearing a disguise of sunglasses and a dark hooded top. He had punched her in the face and caused her to fall to the floor. Money was seized along with cigarettes and chocolate.

The victim and another member of the public who had seen the two assailants running away were unable to make an identification. There was a CCTV camera that took pictures of the robbers. A still was obtained which was circulated to see whether any member of the police force could recognise the man in the dark hood with dark glasses. An officer did purport to recognise him.

P.C. Whittaker had been a community police officer since 2002. He knew the appellant and had contact with him on a particular estate and had seen him once or twice a week between 2002 and 2004 - in other words some two years before this incident - and had spoken to him during the course of face to face conversations. He gave evidence that he could recognise the appellant without any problem. It should be noted that he never purported to recognise him from the moving CCTV images (which as everyone knows had built-in intervals and jerked the images from one to another) but did so from a coloured CCTV still which we have seen.

The prosecution obtained evidence of facial mapping and there was a dispute between the experts as to what could be seen. The result was that an agreement was reached that the statement of a facial mapper should be read to the jury in terms which were not disputed.

This evidence, as it was relayed by the judge to the jury, came from a Mr Laws. He explained in what was read to the jury that two people can share similar facial proportions and morphology - in other words shape - and he said there would be occasions when it would be possible to eliminate a candidate as a result of the image on the CCTV or occasions when it would not be possible to make any meaningful comparison. But he said in relation to the comparison that he made between images of this appellant and the image on the CCTV that it was possible to make a meaningful but restrictive comparison with the appellant and that consequently he was of the view that he was unable to eliminate the appellant as a candidate for the offender. He said:

As a result of that evidence the prosecution submitted that that evidence did provide some, albeit limited, support to the recognition by P.C. Whittaker. Indeed, so successful was that submission that the Recorder in giving a ruling at the close of the prosecution case, considering whether the case should be withdrawn in accordance with the guidelines in R v Turnbull, took the view that that expert evidence was of some limited support. That view was reiterated to the jury on two occasions during the course of the summing-up in which the Recorder, as a result of being prompted by the prosecution, took the view that that evidence was of limited support to the recognition by the officer.

Mr Jones on behalf of this appellant now submits that that evidence was not of limited support. True it is that it did not exclude his client (the appellant) from being a candidate for the robbery, but it did not support the recognition. The reason it did not support that recognition, so it is submitted, is that the most that the expert could say was that there were general features which the appellant and the man wearing a hood had in common and consequently he could not be eliminated.

We agree with this submission. The essential feature of this case which the jury had to weigh and consider was whether the officer was correct in his purported recognition. If they were sure he was, why then the appellant was guilty; if they were not sure about that then he should have been acquitted.

The evidence of the expert did not, on the facts of this case, support the evidence of the officer for this reason. No one suggested that the officer was acting without good faith. He plainly believed that he had recognised the man in the still CCTV as being the appellant. In those circumstances it was as plain as a pikestaff that there were general similarities between the man shown in the photograph and the man which P.C. Whittaker purported to recognise. It added nothing to the recognition of the officer to say or assert whether as an expert or otherwise that the appellant could not be eliminated as a candidate. We take the view that the evidence of the expert did not lend limited support to the recognition of the police officer. This was a direction given twice by the Recorder. We acquit her of any blame in taking the view that that was a proper direction, having regard to the terms of the expert evidence and the contentions advanced by the prosecution, but with the benefit now of being able to look at the summing-up as a whole and the evidence as a whole, aided as we have been by Mr Jones, we take the view that in the circumstances of this case that direction was wrong and may have misled the jury into the view this was some support for the evidence of the recognition of the police officer.

We should also add that there was also laid before the jury the fact that the officer had attended a VIPER identification procedure and had viewed a DVD compilation of nine images. As my Lady, Swift J, has pointed out, with her usual perspicacity arguendo, there was no direction in relation to that. She should have pointed out to the jury that that added nothing to the evidence of P.C. Whittaker. He was merely picking out someone he had already recognised. That warning ought to have been given in relation to that evidence. Had that stood alone it would not have been a ground for concluding that the verdict was unsafe, but it does not, as we have said, stand alone. The suggestion that the expert evidence lended some support, albeit limited, to the evidence of P.C. Whittaker was wrong.

The further ground that was advanced, as it had been advanced before the Recorder, was that the evidence of P.C. Whittaker, although it was not a fleeting glance, was not sufficient to make it appropriate to leave the case to the jury. We do not agree. Had that evidence stood alone, as it ought to have done, it was evidence which the jury were entitled to consider on its own. The officer was not present at the scene of the robbery and had ample opportunity to look at the photograph. Indeed there was no reason why he should suspect or anticipate that the man he saw on the still would be this appellant. He, and no doubt many others were asked if they recognised the man in the still photograph and he said he did. That was evidence, some would regard it as powerful evidence, of recognition of a man with whom he had been in the practice of speaking on regular occasions some two years before.

In those circumstances we reject the submission that the evidence of P.C. Whittaker on its own was not such as to make it right to leave the case to the jury. For the reasons we have given we do think there was a significant error in the directions the jury were given in relation to the expert evidence. On that ground we take the view that the verdict of guilty was unsafe and in those circumstances we shall quash the conviction.

We shall listen to submissions as to whether there ought to be a retrial based upon PC Whittaker's evidence alone.

MR PRESTON: My Lord, the court perhaps has assisted the prosecution's position in rejecting the ground of appeal that the evidence of P.C. Whittaker alone --

LORD JUSTICE MOSES: Are you asking for a retrial?

MR PRESTON: Yes, we are.

LORD JUSTICE MOSES: If there is any change of stance between now and the future hearing --

MR JONES: Only to say I understand the decision to pursue a prosecution in this case was based on the facial mapping expert's report that the Crown commissioned. It was the crown who commissioned--

LORD JUSTICE MOSES: They had it done. So do you want me to alter that bit in the judgment? I saw the look of horror on your face when I got to that bit of my judgment.

MR JONES: Yes, it was the Crown who commissioned the expert's report first, they served it on us and then we got our report.

LORD JUSTICE MOSES: I will change that.

MR JONES: I understand from discussions I have had with my learned friend prior to the report being commissioned that the prosecution would not have pursued this case against the defendant in the absence of such a report.

LORD JUSTICE MOSES: They may change their mind. What appears to have appeared to them then may no longer appear to them now. Is there anything else you want to say about a retrial?

MR JONES: I do not think I can.

LORD JUSTICE MOSES: We have decided we shall order a retrial. The orders that we make are, first, we shall allow the appeal. We shall quash the conviction for robbery. We direct that a fresh indictment be preferred and that the appellant should be retried on that count of robbery. He shall be rearraigned on the fresh indictment within two months. At the moment he is in custody. Was he in custody before all this?

MR JONES: No, he was not.

LORD JUSTICE MOSES: What do you say about that?

MR PRESTON: He was on bail until he was convicted but then failed to attend three separate sentencing hearings and was sentenced in absentia and later I think handed himself in, certainly he was arrested.

LORD JUSTICE MOSES: We will not give bail today. We will say that any application for bail should be made to the Crown Court. So far as representation orders, counsel and solicitor. You had a solicitor before?

MR JONES: I was expecting one.

LORD JUSTICE MOSES: No, you had a solicitor at the trial?

MR JONES: Yes.

MR JUSTICE DAVID CLARKE: You do not get a solicitor today. That is for the retrial.

LORD JUSTICE MOSES: The venue for retrial will be determined by the Presiding Judge of the circuit where the original trial took place, namely my Lord.