Moss, R v

LORD JUSTICE MOORE-BICK: On 26 August 2009 in the Crown Court at Southampton before His Honour Judge Dixon the appellant was convicted unanimously of burglary. On 10 September he was sentenced to a suspended sentence order comprising 40 weeks' imprisonment suspended for 18 months, an unpaid work requirement of 175 hours, 20 employment, training and education sessions and a supervision order for six months.

He now appeals against conviction by leave of the Full Court.

The circumstances giving rise to the conviction were these. At about 7.25 pm on 25 December 2008 a Co-op store in West End Road, Southampton was broken into and over £3,000 worth of cigarettes were stolen. CCTV images captured two or possibly three men breaking into the shop and putting things into what appeared to be a blue duvet cover.

The appellant was arrested on 21 January 2009 and his photograph was taken. In interview he made no comment but handed in a written statement. His address was searched but nothing was found to link him to the burglary.

The prosecution case was that the appellant was one of the men who had carried out the burglary. A co-accused, Bradley Chapman, pleaded guilty to the offence.

The prosecution relied on, among other things, the evidence of a police officer, PC Osmond, who had gone to Southampton police station on 14 January 2009 while off duty to check his e-mails. As he passed a computer screen at which one of his civilian colleagues was sitting he happened to see an image taken from the CCTV footage relating to the burglary and said, "That's Alvin Moss." He reported the recognition to his superior. He did not make a note of the fact at the time, being off duty, but a week later, when he was back on duty, he made an entry in his notebook.

The defence case was one of alibi. The appellant said that he had been at home all that day and he proposed to call evidence from his mother and brother in support of his case.

The issue for the jury, therefore, was one of identification.

In a statement made on 21 January 2009 for the purposes of the prosecution PC Osmond said that he went to the police station on 14 January and saw an image which he was able to identify as a person he knew as Alvin Moss. He stated that the identification had been made in the presence of the CCTV operator and that he had made a note of the fact in his pocket book when he returned to work on 21 January. The entry in his pocket book stated:

In another statement, made on 15 July 2009, PC Osmond explained how he had been able to recognise the appellant. In substance, he said that he had got to know him through sightings in and around the Southampton district. He said he recognised him by certain facial features.

At trial counsel for the appellant asked the judge to exclude the evidence of PC Osmond in the exercise of his powers under section 78 of the Police and Criminal Evidence Act 1984. The argument was that his evidence contained nothing more than groundless assertions that the face he had seen on the screen was that of the appellant. That application was dismissed by the judge who allowed PC Osmond to give his evidence.

At the conclusion of the prosecution case a submission was made of ‘No case to answer’ on the ground that the case rested substantially on the evidence of PC Osmond which was too weak to support a safe conviction. The judge rejected that submission, although he acknowledged that the case against the defendant was not as strong as some.

The grounds of appeal are, first, that the judge wrongly admitted the evidence of PC Osmond and, second, that he should not have left the case to the jury because the identification evidence was too weak to support a conviction.

We consider first the position in relation to the evidence of PC Osmond.

In Attorney General's Reference No 2 of 2002 [2002] EWCA Crim 2373, [2003] 1 Cr App R 21 the Attorney General had referred to the court a number of questions relating to the use of photographic evidence as the basis for identification. For present purposes it is necessary to refer only to the first of those questions which was:

In paragraph 19 of the judgment Rose LJ identified at least four situations in which photographic material may be used. Of those only the second is of importance to the present case. He said this:

In principle, therefore, evidence from PC Osmond was admissible to prove that the person captured on the CCTV film was the appellant, provided there was evidence on which an identification by recognition could be based and provided the jury were given proper directions in the summing-up. That, with all due respect, is entirely sensible because experience of ordinary life bears out the conclusion that personal recognition generally provides a reliable basis for social interaction.

In the case of Dean Smith [2008] EWCA Crim 1342 this court gave guidance on the steps that should be taken when police officers are viewing CCTV recordings with a view to identifying persons present or in the vicinity of a crime. There is obviously a parallel between an exercise of that has kind and a video identification procedure in which a member of the public is shown photographs of a number of people and asked to identify, if he is present, the person who he said was involved in the relevant offence.

In paragraphs 65 to 69 of the judgment the court, having considered Code D of the Codes of Practice (that being the Code that relates to identification procedures) pointed out that similar safeguards are required when police officers are viewing CCTV recordings for the purposes of identifying suspects. That obviously makes good sense because, as the court observed, it is important to be confident that an officer who says that he recognised an accused person is not making an unsupported assertion.

When the police are conducting a relatively formal procedure of that kind there is every reason why they should keep a good record of it and why that record should include matters such as the circumstances under which the recognition is made, whether it was made on first viewing or on later viewing and what the officer said at the time. These matters are important because they enable the jury to assess the reliability of the recognition. It is necessary to appreciate, however, that what is required is not so much slavish adherence to a procedure but evidence that enables the jury to assess the reliability of the evidence of recognition, however it is provided.

Dean Smith has been considered on at least two subsequent occasions, in Henry McGrath [2009] EWCA Crim 1758 and Darren Watts [2010] EWCA Crim 1743. In each of those cases the prosecution was permitted at trial to rely on evidence of police witnesses that they recognised the defendant in CCTV recordings despite the fact that there had been a failure to comply with the formal requirements prescribed in Dean Smith. In the former case the appeal against conviction was dismissed. In the latter leave to appeal against conviction was refused by the Full Court. In each case the court took the view that the essential question was whether the evidence was so unreliable that the judge ought to have excluded it.

As we have observed, the court in Dean Smith was dealing with a relatively formal procedure. It was not dealing with recognition in an informal context of the kind that occurred in this case. In such circumstances the same degree of formal record keeping can hardly be expected, but it is important, nonetheless, for the jury to be able to assess the reliability of the recognition. Evidence enabling them to do that may be given in different ways. If the judge considers that the jury cannot properly assess the reliability of the evidence, or if it is clearly unsatisfactory, for example, because the photograph or recording itself is too poor to enable a satisfactory recognition to be made or the distinguishing features of the person in question are hidden, as they were in the case of Dean Smith itself, the judge will exclude the evidence. However, in many cases it will be for the jury to decide whether, having heard all the evidence, they are satisfied that the recognition is reliable.

In the present case, PC Osmond was in a position to describe the circumstances in which he saw the CCTV film and recognised the appellant. He was also in a position to explain how he had come to know him, when he had last seen him and which of his features he particularly relied on to identify him. Of course he could have been telling a lie or could have been mistaken when he said he recognised the appellant, but it is impossible to exclude that possibility however carefully the process is recorded otherwise than by examining the basis upon which the recognition is said to have been made and judging the credibility of the officer in cross-examination.

In our view in a case of this kind it is important not to lose sight of the essential principles. PC Osmond reported the recognition to his superior, he made a note of it when he returned to work, he gave a description of his previous contact with the appellant, and thus an explanation of his ability to recognise him, all of which provided a basis on which the jury could judge the reliability of his evidence.

The judge had a discretion to exclude the evidence of PC Osmond but declined to do so. In his summing-up he gave the jury a clear warning of the dangers inherent in recognition evidence and of the risk that a honest witness who says that he recognised someone known to him may nonetheless be mistaken. He also gave them a clear warning of the need for special caution and of the danger of a witness digging his heels in when challenged. In our view the judge was right to allow the evidence to be given. He directed the jury correctly in relation to it and this ground of appeal fails.

It is convenient at this point to deal with a supplementary argument that did not form one of the grounds of appeal but was included by Mr Robinson in his skeleton argument following a comment made by this court when giving leave to appeal. He submitted that the judge had been wrong to allow a copy of a still image taken from the CCTV recording to go to the jury in order to enable them to consider for themselves whether the person shown in it was the appellant.

At the trial no attempt was made to prevent the prosecution adducing the image as part of its case so the judge was not called upon to consider whether its introduction could be unfair. Nonetheless, had it excited any concern on his part, it is likely that he would have raised the matter. Obviously it did not.

The image in question is in colour with reasonably sharp, but not perfect, definition. The person in it is not shown full face and part of his forehead is obscured by clothing, but most of his facial features are visible.

In our view this was evidence that was properly put before the jury to enable them to form their own view provided they were given a clear warning of the dangers inherent in making identification from a photograph of this kind.

In his summing-up the judge drew the jury's attention to those dangers very fully and Mr Robinson accepted that there could be no criticism of the way in which he did so. In those circumstances, we are satisfied that there is no substance in this point.

The second ground of appeal, namely, that the judge was wrong not to accede to a submission of no case to answer, is based on the submission that the quality of the identification evidence was poor and that there was insufficient other evidence to support a conviction. In making that submission counsel understandably sought to draw a parallel between the case of Dean Smith and the present case, but each case must be considered on its merits by reference to the particular nature and quality of the whole of the evidence before the jury at the close of the prosecution case. In the present case the recognition evidence given by PC Osmond was significant in itself but it was not the only evidence before the jury. As the judge himself pointed out, there was other evidence on which they could rely, in particular the CCTV recording itself and the still image taken from it, as well as a photograph of the appellant taken at the time of his arrest on 21 January. It is important to remember that PC Osmond's recognition evidence was entirely separate in evidential terms from the still image and the CCTV recording which formed the basis of any assessment the jury might make for themselves. His evidence could therefore provide additional support for that assessment.

In his summing-up the judge gave the jury a very clear warning of the dangers inherent in visual identification, whether in the form of recognition or identification from photographs, and he reminded them to take particular care in relation to evidence of that kind. He specifically warned them of the dangers of making an identification from photographs and emphasised that they had to be sure before they could convict.

In our view, there was sufficient evidence to go to the jury in this case, and, having allowed that evidence in, the judge directed them correctly in relation to it. For these reasons we are satisfied that the conviction is safe and the appeal must therefore be dismissed.