Callum v R

This is an appeal against conviction with leave of the full court. Mr David Spens QC who represented the appellant in the appeal was also counsel at his trial. Mr Duncan Atkinson who appeared for the respondent in the appeal was junior counsel for the prosecution in the trial.

The trial took place at the Central Criminal Court before HH Judge Worsley QC and a jury between June 23 and July 10 2008 when the appellant was convicted of murder. He was sentenced on 1^st August to custody for life with a minimum term of 19 years.

Mr Spens QC has advanced a single ground of appeal namely that the identification evidence of two prosecution witnesses should not have been admitted and the state of the identification evidence was such that the verdict of the jury was unsafe.

Shortly before midnight on 2 October 2007 the 21 year old male victim, Robel Tewelde, had congregated with his brother and some friends in the ground floor stairwell in a block of flats at Jephson Court, Stockwell. A friend, Jason Aird, arrived on his motorcycle. The security door was opened to allow Aird to enter. He was followed by a person identified subsequently as the appellant, who reached into his jacket. The friends, realising that this person was hostile, ran up the stairs. The gunman fired three shots, two of which struck the deceased at close range in the leg and back. One of those shots penetrated the deceased’s liver, lungs and heart and he died at the scene. A CCTV camera was situated to the gunman’s right and above head height. A still photograph was prepared for the jury. Its quality, it was agreed, was insufficient for the purpose of attempting an identification but the jury was entitled to view the photograph for the purpose of judging whether the gunman’s appearance was consistent with, or different from, the appellant. A second individual appeared to have accompanied the gunman but remained outside the flats. An arrest of that person led to a separate trial. The bullet recovered from the deceased’s body, and samples found at the scene, enabled a firearms expert to conclude that the weapon used was a Mac 10 submachine gun converted to fire bullets. That weapon was never recovered.

Identification evidence was given by three young men who formed part of the group in the stairwell. They gave evidence behind screens and were permitted to use pseudonyms.

Nigel Halton was interviewed within three hours of the shooting. The stairwell was well lit. He was, when interviewed, unable to provide significant detail about the gunman save to describe his height as about 5’10”, medium build, wearing a black hooded top and trouser bottoms. Halton gave evidence that he thought there were three men in all in the gunman’s group, while other witnesses described only two. On 6 October 2007, Halton attended a video identification parade. He viewed the images, particularly image number 7, several times. He said that he was 90% sure that No. 7 was the gunman. The appellant was standing in position No. 7. He said during cross-examination that as he opened the door for Jason Aird (another pseudonym) he had a two to three second glimpse of the gunman, but had a somewhat better look when he was inside. He could not recall seeing the gunman before the day of the shooting but agreed that he might have seen him around the estate.

Jason Aird said that when he arrived on his motorcycle he saw two men standing on their bikes outside. Halton opened the door for him. He noticed the look in Halton’s eyes, as if worrying about the presence of the two men outside. Almost as soon as he entered everyone started running up the stairs and he followed. He heard a shot, turned back and saw that his friend was down. When seen by the police at about 4.45 pm on 3 October 2007, he had told them that he looked in the face of the gunman and knew that he had seen him about. He was asked to provide a name and replied that he could not do that because he wasn’t a grass. He did however, off the record as he put it, name the person as ‘J’ or ‘JJ’. The gunman was 6’3” or taller and skinny. When interviewed at 5.45 pm he did not mention the name but gave a description of the two men. The gunman was a black man, with dark skin and skinny.

Aird took part in three video identification procedures on 6 October. The first was conducted by police officer Lewington. The appellant was not present in the video but the suspected second man was standing at image number 7. Aird picked out a volunteer standing at No. 3 thinking the man was JJ. Following the parade he became agitated and told PC Hardy that he had been confused and “thought it was all wrong”. He was then shown a second video film in which the appellant was in image number 6 and identified him. He informed Inspector Burnell that he had identified the person known to him as JJ on parade 2 and believed that he was the person he had been looking for on parade 1. Inspector Burnell asked for a third parade to be conducted, this time by police officer Scott. Aird was asked if he could identify the second man and he did.

The third identifying witness was Andrew Temple (the third pseudonym), the brother of the deceased. When he saw his brother lying face down on the ground he removed his belt to attempt to stem the bleeding from his wounds but became hysterical and punched a glass panel in a door in the stairwell injuring his hand. A neighbour, Mr Goncalvez, reported Temple as saying “See, I swear I am going to kill someone if I find out who did this”. PC Newman arrived at about midnight. She found Andrew Temple bleeding from his arm, upset and agitated. Mistakenly, she assumed that he had been shot. She asked Temple what had happened and was told that he saw two males, one he recognised but did not really know, and the other he had never seen before. He told her that in his anger he had punched a glass door. Temple required treatment at hospital. Later the same morning Temple was interviewed as a significant witness. During the course of the interview he said that he did not know if he had seen the man before, “I don’t think so, I am not too sure”, and “I didn’t get a good look”. Asked whether he would recognise the face again he said, “No. I don’t even know”.

Temple took part in an identification procedure conducted by Scott on 6 October. The applicant was standing in image number 4 but the witness appeared to be focussing on the volunteers in images 1 and 3. He was unable to make an identification. During an interview on 22 October, he said that he knew the gunman was one of the two on whom he had been focussing during the procedure.

At the end of the identification procedures conducted on 6 October, the three witnesses were driven together by DC Hooper from the identification suite to their homes. DC Hooper gave evidence that Aird repeatedly stated that he had picked out JJ as the “shooter man”. DC Hooper acknowledged that he had not warned any of the three witnesses not to talk about the case or the identification procedures and did not intervene to prevent Aird speaking as he did. DC Hooper inferred from the words spoken by Aird and the reaction of Halton and Temple that each of them knew who JJ was. When asked about the conversation in evidence, Halton said that he could not recall Aird speaking of JJ. He denied saying that he knew the person whom Aird had picked out at the parade. DC Hooper described Temple as being very subdued during the car journey.

DC Hooper and police officer Jenner were both family liaison officers. They paid a visit to Temple on 7 October. Temple’s evidence was that he had been telling his family on 4 and 5 October that the gunman was JJ. The day before the shooting he had seen JJ “smiling at us when we was near the car and he was round his Mum’s area smiling at us”. Since DC Hooper had received the impression from the car journey that each of the three witnesses knew who JJ was, during his visit on 7 October he asked Temple the direct question “Do you know JJ?” DC Hooper said that Temple shifted uncomfortably and told him that he did not know JJ personally. He was not someone Temple had associated with but he had seen him about on the road. He acknowledged that he did not know who he was. DC Hooper asked the question “If you knew JJ why not pick him out on the identification parade”. Temple replied “I just remember him smiling, his nose. I saw him in a flash. I just run up the stairs. I got to the top and someone was saying that was JJ”. He continued “I am confused, all mixed up about what has happened, and I don’t want to make a mistake. I just didn’t know what to do”. Temple was the only witness to say that someone mentioned at the time of the incident itself that the gunman was JJ. In the family liaison log, Jenner recorded that Temple ran up the stairs, got to the top, and was later told that it was JJ. She gave evidence that her understanding of Temple’s account was the same as DC Hooper’s. When in evidence Temple was asked about his conversation with DC Hooper on 7 October he agreed with DC Hooper’s recollection. He went on “it all sounds vaguely right. Now I am 150% sure that the man who came through the door was JJ. It is getting back to me. I have de-stressed. At the time my brain was in a big muddle. I was sure ten days after when I came out of hospital. I thought about it when no-one was influencing me.”

During his interview on 22 October, Temple was saying that he was sure the gunman was JJ. During cross-examination by Mr Spens, Temple explained himself as follows:

“I was so traumatised that night. I did recognise the gunman on the night itself. I thought about it and realised that I had seen him the day before, 1 October. It was late on the night of 3 October. I thought that I realised when I had seen him. I was thinking about it between 3 and 6 October. It was on the first visit to hospital before I was seen by the police. I was just thinking about it. Before I saw the police, I knew at the back of my brain I knew it was JJ but I was more worried about what had happened to my brother. I did not tell the police about my suspicions. I wanted to be sure myself.”

Asked why he was concentrating on numbers 1 and 3 at the identification procedure, he said:

“I identified no-one. I picked out two people as close, as possibilities. I did not want to be involved. ... In my brain, they resembled the gunmen. I had to pick someone. I was not 100% sure.”

Temple made a further witness statement dated 23 June 2008. He reiterated that JJ was the male who came into the stairwell and pulled out a gun. He had heard from people that JJ was “into gun crime”. He had seen JJ on various local estates in the previous two years as someone pointed out to him. As to the identification procedure he said “I was out of my mind. My brother had just been killed and I just didn’t know what was going on. I was confused. That day everyone looked the same to me. My brain was not clicking”. In evidence Temple said that he had seen JJ a few times, perhaps twice before. He said he required medicine for his diabetes. He accepted that he had been smoking skunk on the day of the shooting. He repeated that he had been traumatised on the night of the shooting. He realised that he had seen the gunman the day before on 1 October. He had not wanted to say anything to anybody until he realised that the best thing was to talk to the police.

Applications were made by Mr Spens QC on 24 June 2008 for the exclusion of the evidence of Halton and Temple. Mr Spens was not submitting that Holton’s 90% sure identification was inadmissible in itself. He submitted that Holton’s evidence must have been contaminated by his presence in the car in which DC Hooper conveyed the three witnesses to their homes. Any prospect that Mr Spens might have been able further to reduce the cogency of Holton’s identification would have been removed by the knowledge that Aird had identified JJ as the gunman. The judge declined to exclude the evidence, concluding that it was open to Mr Spens to explore with the witness both the qualification in his identification and the possible effects of knowledge acquired during the car journey.

In the case of Temple no identification was made at a formal procedure, yet the witness claimed to have known from an early stage that JJ was the gunman. He had given conflicting and inadequate explanations for his failure to make an identification at the appropriate time. He had lately made a witness statement which purported to confirm his certainty. There was a real danger that his evidence was also and particularly contaminated by after-acquired knowledge, particularly during the car journey on 6 October. The judge concluded that the evidence was admissible. Mr Spens had all the material upon which to mount cross-examination going to the reliability of Temple’s evidence. These were matters for the jury to assess.

Mr Spens repeats the submission that he made to the trial judge. He does not contend that the qualified identification made by Halton was inadmissible in itself. However, he argues that during the car journey on 6 October Halton heard Aird state repeatedly that he had picked out JJ and that JJ was the shooter man. The state of the evidence was unsatisfactory. DC Hooper said that all three men appeared to know to whom Aird was referring. At the time the judge was invited to make his ruling, DC Hooper’s evidence was undisputed. It would not be possible for Mr Spens effectively to explore the reason why Holton had expressed himself as 90% sure of his identification since Temple’s state of mind would have been affected by his exposure to a conversation which should not have been permitted to take place.

The code of practice, Code D Annex A paragraph E10 issued under the Police and Criminal Evidence Act 1984 specifies procedures designed to prevent contamination of identification witnesses before the holding of video identification procedures. Similar precautions are provided for other forms of identification procedure (see Annex B paragraphs D14 and D15. Mr Spens acknowledges that no such precautions are stipulated for the purpose of preventing contamination after an identification procedure has been conducted. It would, indeed, be impracticable to prevent the possibility that the quality of a witness’s identification would be affected by after-acquired knowledge. If Mr Spens’s argument is correct, then the trial judge would be required in any identification case, not just one in which the witness’s identification is qualified, to exclude the evidence if there was evidence that the witness’s identification may have been affected by after-acquired knowledge. Mr Spens recognised that this was not an argument which was likely to find favour with the court. These are matters for the jury, defence counsel having had the opportunity to test the quality of the evidence in cross-examination.

Mr Spens further argued that by the time the jury came to consider Halton’s evidence, they had two versions of the conversation in the car. Halton, when asked about the conversation in evidence, said “I can’t remember that”. When Mr Spens put to him that he had been involved in a conversation in the car whose terms were such that it implied knowledge that all three witnesses knew JJ, he said, “No, I didn’t say I knew the person that Jason had picked out”. Mr Spens submitted that in view of the failure of Halton to accept the proposition put to him, it was necessary for the trial judge, in summing up, to direct the jury that they should make a decision which of these accounts was accurate. They needed to resolve the question whether, in truth, Holton knew that the person he had identified with 90% certainty was JJ, the same person whom Aird had recently identified. If they were sure he did then that judgement may affect their consideration of the reliability of Halton’s identification such as it was. Furthermore, when asked whether he had seen the person he had identified on any previous occasion, Halton accepted that it was a possibility. This reply opened up the question whether Halton may have identified the gunman, not because he was the gunman, but because he was a person whose face was familiar. At pages 43 and 44 of his summing up the judge dealt with the Turnbull weaknesses. He summarised the defence argument as follows:

“So far as the conversation in the car, driven by DC Hooper back from the parade is concerned, on 6 October, that officer’s evidence was that they had spoken in the back as if they all appeared to know JJ and that was something denied by this witness. They point out that, at the parade, it was a 90% qualification on the positive identification that he made.”

Mr Spens argues that the judge’s reference to the defence argument was inadequate warning to be cautious before placing any weight upon Halton’s identification..

In Mr Spens’s submission, Temple should not have been permitted to give evidence of identification. By analogy, if contamination of the witness’s evidence takes place before a video identification procedure, thus rendering the procedure unreliable and unsafe, so must contamination of a witness render his latest assertion that he knew all along the identity of the gunman be rendered unsafe. Had Temple made an identification at a procedure which followed the conversation in the car on 6 October, the defence would have had a strong argument that it should be excluded under Section 78 Police and Criminal Evidence Act 1984 as substantially prejudicial. The same considerations applied to Temple’s evidence. Further, the implication behind the conversation between DC Hooper and Temple on 7 October 2007 was that if JJ was known to Temple he should have been in a position to identify him at the procedure. Such a question can only have implied to Temple that Aird’s identification of JJ was correct. Furthermore, it was Temple’s evidence that others had identified to him JJ as the gunman. It should have been apparent to the trial judge that the contamination of Temple’s identification evidence was such that it went beyond mere weight and undermined the value of Temple’s evidence altogether. Its admission can only have been prejudicial.

Secondly, it is submitted that the state of Temple’s evidence was such that the jury required careful and specific directions about its dangers, the more so since Temple was the deceased’s brother and thus deserving of sympathy. The judge merely referred to weaknesses in the following terms:

“First, that he is the brother of Robel, of course, and would be more upset than anybody else perhaps at the scene; that he agreed that he had been smoking some form of cannabis that night; Mr Spens submitted it is too unsatisfactory for you to rely on his evidence at all; he pointed to the description he gave about moving from the bottom stair to the door and to claim to have the face to face meeting with the gunman – there was no reference to that when he spoke to the police soon after the event; that he did not in fact realise who it was because he said to the neighbour Mr Goncalez, “I am going to kill someone if I find out who it is”, and that he told the police woman, Newman, he saw that one had a gun and he could not have seen that. This goes to show that he is unreliable and that he has said to the police that he had seen a black boy, “whom I don’t know and I don’t think I would recognise him again”. On 6 October, of course, he did not pick him out at the parade, and thereafter he was in the car when Jason was talking about “I picked out JJ as the shooter”, and therefore his mind was influenced, suggests the defence, by things he has learned by 2 October, and it is not until 22 October that he is saying to the police in a statement that he is 100% sure it was JJ because he had seen him the day before the shooting.”

In Mr Spens’s submission, the evidence having been admitted, the learned judge, in summing up, should have drawn explicit attention to the possibility that Temple’s identification of the appellant could have been brought about by after-acquired knowledge. First, he knew on 6 October that Aird had identified JJ as the gunman. Second, on the following day the implication behind DC Hooper’s questions was that Temple ought to have identified the appellant as the gunman. The danger of contamination in Temple’s identification evidence was such that the jury should have been told either to discount Temple’s evidence altogether, or to exercise extreme caution.

No breach of Code D issued under PACE 1984 is asserted on behalf of the appellant. Mr Spens’s argument is that the value of the identification made by Temple and Halton was so undermined that the evidence can only have been of prejudicial effect and should have been withdrawn from the jury under Section 78 of the Act. Alternatively, Mr Spens submits that the jury could have received further assistance from the judge pointing out the dangers inherent in the evidence.

Mr Atkinson, on behalf of the respondent, drew our attention to the guidance given by Lord Lane CJ in Quinn [1990] Crim LR 581 on the application of Section 78 to cases involving disputed identification evidence;

“... normally preceedings are fair if a jury hears all relevant evidence which either side wishes to place before it, but proceedings may become unfair if, for example, one side is allowed to adduce relevant evidence which, for one reason or another, the other side cannot properly challenge or meet, or where there has been an abuse process, e.g. because evidence had been obtained in deliberate breach of procedures laid down in an official code of practice.”

In a further appeal of Quinn (FJ) [1995] 1 Cr App R 480Lord Taylor CJ, giving the judgment of the court, at pages 489E-490G, drew attention to the need in summing up to draw the jury’s attention specifically to any breach of the Code capable of affecting the reliability of an identification. Lord Taylor’s remarks received the approval of the House of Lords in Forbes [2001] 1 AC 473. Lord Bingham, at paragraph 27, in connection with evidence of identification which has been admitted notwithstanding a breach of Code D, said;

“the trial judge should in the course of summing up to the jury - (a) explain that there had been a breach of the code and how it has arisen and (b) invite the jury to consider the possible effect of that breach. The Court of Appeal has so ruled on many occasions, and we approve those rulings; see for example Quinn [1995] 1 Cr App R 480 at 490F. The terms of the appropriate direction will vary from case to case and breach to breach.”

In George [2003] Crim LR 282 it was submitted on appeal that evidence which did not amount to an unequivocal positive identification at an identification procedure should be excluded under Section 78 pace 1984. It was submitted that no evidence should have been given as to why a witness purported to make a qualified identification or failed to make an identification at all. The effect of admitting such evidence was to encourage the jury to treat the witness as having made an identification when none had taken place. In such a case, it was submitted that the jury should simply be told that the witness failed to make a positive identification.

The court rejected these arguments. Lord Woolf CJ, having recognised at paragraph 34 the danger of mistaken identity or the clothing of a non-identification with the appearance of an identification, continued:

“However, there are at least two situations where a qualified identification may, in appropriate circumstances, be both relevant and probative. First, where altogether the weight of the evidence will still be less than a positive identification, it supports or at least is consistent with other evidence that indicates the defendant committed the crime with which he is charged. Secondly, the explanation for a non or qualified identification may help to place the non or qualified identification in its proper context, and so, for example, show that the other evidence given by the witness may still be correct. Otherwise, a non or qualified identification could be used to attack the credibility of other evidence given by a witness when the explanation for this may show that such an attack is unjustified. In each case it will be for the judge to decide whether the evidence is more prejudicial than relevant and probative bearing in mind the importance of protecting the position of the defendant against unfairness. In this case, as we shall see, part of the case for the prosecution is based on the pattern of identification evidence including the build, the complexion and clothing which the appellant was wearing. Subject to the jury receiving appropriate warnings which were given in this case, the general evidence of the witnesses who saw a man who the prosecution say was the appellant was highly probative.”

Mr Atkinson submitted that the evidence of Aird was unequivocal. He had told police officers on the day of the killing that he knew the identity of the gunman. At that stage he was only prepared to give a description of the two men, including the gunman. He knew who the gunman was, he said, because he had seen him on previous occasions. It was the day after the killing that he realised that the person that he recognised was called JJ. It is time that Aird had identified a volunteer at the first parade. However, it was a matter for the jury to assess the value of the identification evidence in the light of appropriate directions from the trial judge. The jury would have been entitled to return a verdict of guilty upon the identification evidence of Aird alone.

As to the evidence of Halton, the admission of this evidence fell squarely within the category of evidence considered by the Court of Appeal in George. Subject to the effect of the conversation in D.C. Hooper’s car, the evidence was plainly admissible. It is not suggested that Halton firmed up a qualified identification in the course of his evidence. Mr Spens’s approach at trial was to take Halton’s identification at the video procedure at face value. The fact that Halton had either been a party to the conversation (a conversation which he said he did not remember) or had been an observer of the conversation, cannot, submits Mr Atkinson, be a reason for excluding the evidence from the jury’s consideration. Mr Spens was not prevented from cross-examining Halton upon any aspect of his evidence which it was contended may have undermined his reliability or created difficulties for the defence. While the judge did not specifically direct the jury to resolve what, if any, part Holton played in the conversation the different accounts of the conversation were squarely put before the jury for their consideration and they well knew the significance of the issue. It was Halton’s evidence that he had seen the gunman on previous occasions. While it was conceded by Mr Atkinson that the judge did not specifically draw to the jury’s attention the possibility that Halton had identified the appellant as someone he had seen on the estate in the past, and not because he recognised him as the gunman, the jury can have been under no misunderstanding as to the possibility placed before them on behalf of the appellant. If this was an omission, its materiality may be judged by the fact that no request was made for the judge to add to his directions in this respect at the close of the summing up.

Andrew Temple failed to make any identification at the identification procedure. Only after the conversation in D.C. Hooper’s car did he say that he knew the gunman was JJ. This was not a case in which Code D was breached but a case in which a witness purported to identify by name someone he had all along been able to identify. The issue for the jury was whether Temple’s post-procedure identification was reliable. In this respect, there was a context which the jury was entitled to take into account. There is no doubt that Temple was overwrought on the night of the shooting of his brother. He gave indications during his first interview at 3.20 am that he might be able to identify the gunman (if he smiled again). Temple claimed that he had been telling members of his family that the gunman was JJ on 4 and 5 October. On the other hand, the conversation in the car on 6 October, and at his home on 7 October, were matters which the jury were entitled to evaluate when considering whether Temple’s purported identification had any value. Mr Atkinson submitted that the judge was well aware of the difficulties created by Temple’s evidence but was correct to leave these matters for the jury’s evaluation with appropriate directions. Given the explicit directions the jury received, there can be no danger that the jury failed to approach Temple’s evidence with the requisite caution.

In the course of the judge’s ruling on 24 June, upon the admissibility on the evidence of Halton, he said:

“Mr Spens submits the defence are significantly disadvantaged in any attempt to explore Holton’s purported “90% sure” identification of the defendant, since the identification parade by virtue of his having heard what Aird, another witness, had to say about the correctness or otherwise of the identification. I disagree because it seems to me that Mr Spens is able to explore the fact that although there is a positive identification of his client, it falls short of being 100% sure at the time of the identification. It is a matter for Mr Spens, of course, to decide whether he wishes simply to explore what 90% means and that it clearly means something less than 100% and if the Holton witness is not sure, how could a jury act on his evidence as being sure? Whether he wishes to explore the conversations that took place in the car thereafter is a matter for him, but it seems to me this is prima facie admissible evidence, clearly relevant to the central issue before the jury which will be one of identification, and that the qualification made by Holton is a matter which goes to the weight of the evidence, and I am in no way persuaded that Mr Spens cannot properly represent his client, or that the jury would inevitably reach a conclusion that this is reliable evidence which cannot be tested. It is clearly open to being tested, and if I may say, Mr Spens has some pretty good ammunion with which to attack the reliability of this witness’s identification. Accordingly, I rule that it is admissible.”

In our view the judge’s decision was undoubtedly correct. Contrary to Mr Spens’s assertion, the defence had two lines of attack. The first was that even before the conversation in the car, Halton did not purport to be certain in his identification. Secondly, there was available to Mr Spens the argument that if, contrary to his assertion, Halton heard Aird’s protestations that the gunman was JJ, it was improbable that the defence would be able to shift him from his qualified identification. These were, in our view, clearly matters for the jury to consider. We do not regard it as having been incumbent upon the trial judge to take the jury through the progression of Mr Spens’s argument which they had just heard from him, provided that the relevant issues of fact and their significance were placed fairly before them. In our judgment, the jury can have been under no misapprehension as to the caution they must apply to this and any other identification evidence, particularly when there was a risk of contamination.

In providing his ruling in the case of Temple’s evidence, the judge said:

“What happened was that an interview on 3 October 2007 that witness said he did not identify JJ who he knew by sight. On 6 October he did not identify him during an identification procedure. There is evidence that on the same day the officer was driving that witness and others from the identification parade, there was a conversation in the car about the identification of JJ, and on 7 October in answer to questions, that witness purported to identify JJ as the gunman for the first time, saying according to the note in the liaison log, “later on this witness told the officer it was JJ”. By 22 October, this witness ... says he is now 100% sure it is JJ, and of course, in his most recent statement of 23 June, he makes clear that it was indeed JJ who he saw going into the block of flats and putting his hand inside his jacket as if to pull something out. ... I am entirely satisfied that there is admissible evidence here which will go before the jury. The defence are able to test that evidence by reference to the significant witness interviews which were recorded at the time, and [are] now in transcript form, the statement of Detective Constable Hooper who overheard the conversation in the car after the identification parade which has been put in writing in the liaison log and there to be used for the purposes of cross-examination, and, of course, the recent statement of Andrew Temple which comes many months after the incident. These can be put to the witness. It does seem to me that bearing all those matters in mind, the evidence is prima facie admissible as to why Andrew Temple did not pick out JJ who he says was responsible when he attended the identification parade. It does also seem to me that this is essentially a matter for the jury to assess, and, accordingly, I rule this evidence is admissible.”

We accept that the evidence of Temple was more problematical for the judge than was the evidence of Halton. The effect of Temple’s evidence was that after the killing he believed he might be able to identify the gunman if he saw him smiling. He associated the gunman with someone who smiled at him on a previous occasion. He told Newman that night that he recognised but did not really know the gunman. Temple said he did not realise who the gunman was until the following day, but, he explained, he could not point anyone out on the identification procedure so as to be sure. It was only after the conversation in the car, when interviewed by DC Hooper on 7 October, that Temple said that he knew who JJ was and had failed to pick him out because he was “confused, all mixed up about what has happened and I just didn’t want to make a mistake. I just didn’t know what to do”. While there was undoubtedly a risk that Temple’s evidence of identification was contaminated by the conversation in which he took part in the car, this was evidence which, it seems to us, was for the jury to resolve. The issue was not whether an identification made at a procedure was or may have been rendered unreliable by breaches of the Code but whether Temple’s later assertion that he had known all along that the gunman had the street name of JJ was true and reliable. There were various conclusions available, for example: that Temple had known throughout who the gunman was but was frightened to say so until sure of support; that Temple, but for his confusion and anxiety at the identification procedure, would have been able to recognise the gunman without being able to put a name to him until informed of that name by Aird; that Temple had always been unable to identify the gunman but in his anxiety to do justice to his brother, he had persuaded himself that he could.

In our opinion this evidence was at the borderline of proper admissibility having regard to the risk of contamination. We accept Mr Spens’s criticism both of the car journey on 6 October and the conversation with Temple on 7 October. These were undoubtedly matters which went to the issue of reliability of Temple’s late identification. However, we are not prepared to accept that the judge’s decision to admit the evidence for evaluation by the jury was wrong. Our reason is, as it was the judge’s, that there was available to the defence all the material needed to examine the reliability of Temple’s evidence. As we have observed, there were various conclusions to which the jury could have been driven by the evidence. The defence was not in the position of being deprived of the opportunity effectively to explore the reliability of the evidence, as contemplated by Lord Lane CJ in Quinn.

We accept Mr Spens’s submission that this evidence could only be safely considered by the jury if they received explicit directions going to the reliability of Temple’s evidence. In his summing up (transcript pages 13–16) the judge gave the jury the full Turnbull direction, in the course of which he informed the jury that he would draw their attention to specific weaknesses in the identification evidence identified on behalf of the appellant. He paid tribute to the care with which counsel both for the prosecution and the defence had taken the jury through the evidence with a view to identifying any strengths and weaknesses. In particular, at page 16D, the judge posed the following question, of relevance to the evidence both of Halton and Temple:

“May witnesses who purport to identify Mr Callum have identified him as someone they have seen around the estate but who in fact had no connection with the shooting?”

While the judge did not pose any explicit question for the jury identifying the dangers, the underlying context in which he invited the jury to consider the evidence of contamination was unquestionably the risks from contamination about which they had just heard from Mr Spens. The jury was reminded that the unchallenged evidence of Mr Goncalvez was that Temple “was going mad, walking up and down and saying, “I swear I am going to kill someone if I find out who did this.”” The jury can have been in no doubt that they needed to consider whether these words indicated that Temple had no contemporaneous knowledge who had shot his brother. The judge reminded the jury of DC Hooper’s evidence that Aird was saying, in the car, that he had picked out JJ. Temple was very subdued during that time and did not say very much at all. The next day when DC Hooper raised with Temple the question whether he knew JJ, “Temple shifted uncomfortably and said he did know JJ from the road but didn’t know him personally just from someone who had pointed him out once”. He reminded the jury that it was DC Hooper’s impression that all three witnesses were aware who JJ was. He reminded the jury that Temple conceded that DC Hooper’s recollection of the car journey was “vaguely right”; that it was not until ten days later that Temple purported to identify JJ as the gunman. It follows, in our view, that the jury’s task was to assess whether Temple had given reliable evidence that he knew independently who the gunman was or had only been able to make that identification in consequence of Aird’s remarks. The judge drew attention to Mr Spens’s cross-examination upon Temple’s remark to Mr Goncalvez; about his purported recognition of the gunman the day after the shooting; his explanation that he was traumatised; about his failure to inform the police of his recognition until much later; why he had been unable to identify JJ at the identification procedure; about his explanation “I didn’t want to say nothing to nobody until I realised the best thing was to talk to the police”; that during his interview with the police on 22October, he conceded that someone might well have told him that the gunman was JJ although he had himself been informing his family and friends that JJ had been the gunman; that he had these thoughts as early as the 3 October but had not mentioned them to the police until 22 October.

At page 78 of the transcript of the judge’s summing up, he summarised the weaknesses in Temple’s evidence including his remark to Mr Goncalvez, the conversation in the car, and the lateness of his assertion that JJ was the gunman.

In our view, the judge did give to the jury explicit directions about the caution which they must exercise before relying about the identification evidence of any of the witnesses, and, in the case of Temple, the particular issue of unreliability occasioned by after-acquired knowledge.

This was a single issue case in which counsel for the appellant took infinite care to explain to the jury why the identification evidence may be unreliable. Indeed Mr Spens was explaining why there was no case which required an answer from the appellant who elected not to give evidence. This was not a case which involved several different compartments of circumstantial evidence requiring the judge to re-focus the jury’s attention upon issues relevant to identification. The whole case was about identification and the risks of error, contamination and mistaken recollection. The judge endorsed counsel’s approach to the identification issue and reminded them of the central features of the evidence of Halton and Temple which they should consider as weaknesses. The fact that the jury did not receive a more emphatic endorsement of weaknesses from the judge does not, in our view, undermine the safety of the jury’s verdict, since the question whether the identification evidence was contaminated was an issue for the jury to evaluate as the judge told them. If they concluded that there was a real risk of contamination, it was common ground that the jury should exercise extreme caution.

There was, upon the judge’s directions to the jury, only one aspect of the evidence which was capable of providing support for the identification by any one of the witnesses. That comprised draft texts recovered from the appellant’s mobile phone on his arrest. Among them were lyric verses making reference to killing, a MAC10 submachine gun and 9mm ammunition. An issue for the jury was whether these lyric verses represented the appellant’s statement of intent to commit a murder with such a weapon or a coincidental product of his imagination. There was evidence from Dr Quinn, for the appellant, that nothing sinister should be inferred from the texts which were recovered. It was a matter for the jury to evaluate the evidence and reach its own conclusion. After the judge had completed his summing up Mr Spens raised as an issue the judge’s failure explicitly to warn the jury that they should not treat the texts as any evidence capable of supporting the identification evidence unless they were sure that they could exclude the possibility that the texts were a statement of intent rather than of imagination. The judge declined to give the jury a further direction explaining that he regarded it as implicit in his summary of the evidence that only if they concluded the prosecution argument was correct could they treat the texts as supporting evidence. We have re-read the transcript of the judge’s summing up for 10 July 2008 and conclude that the judge was correct. At page 12 F he said:

“You know that the Crown’s case is that disclosed in those messages which had clearly been saved on Mr Callum’s phone, and they say saved for a purpose, though it is not possible to say what date they were saved, that this describes killing someone and, say the prosecution, this is a statement of intent to do what in fact was done here, namely the killing of someone with the MAC machine gun using 9mm bullets.”

At page 13 E the judge proceeded to remind the jury of the evidence of Dr Quinn, the purpose of which was to justify the opinion that this was gangster rap which may have had nothing to do with an existing intention. She conceded that the obvious person to explain the preservation of the texts was the defendant himself who had not given evidence.

While we agree with Mr Spens that the judge could have been more explicit in his direction to the jury as to the relevance of their consideration of this evidence, we conclude that they can have been in no doubt as to its purpose and significance. Unless they were sure that the prosecution was right and Dr Quinn was wrong it was commonsense that the evidence could not amount to support of the evidence of identification.

In our view, for the reasons we have given, this verdict was safe and the appeal is dismissed.