Coles, R v

LORD JUSTICE IRWIN: On 28 November 2016, following a trial in the Lincoln Crown Court before His Honour Judge Pini QC and a jury, this applicant was convicted of burglary and on the same day sentenced to 5 years' imprisonment.

The Registrar Criminal Appeals has referred the application for leave to appeal his conviction to the full court following an administrative delay at the Crown Court, so as to ensure an earlier hearing.

At around about 1.20 pm on the afternoon of 29 April 2016, the complainant, a Ms Thompson, left her home address at 91 Crowson Way, Deeping St James in Lincolnshire. While she was out her house was burgled. The burglar, it appears, got access to the premises by forcing open the rear ground floor kitchen window, and a considerable amount of property was stolen.

CCTV footage was available from two cameras outside a shop on the other side of Crowson Way. Exhibit RJ/01 provided footage pointing down the road and towards number 91 of Crowson Way and that footage shows a man walking past the shop within about a minute of the complainant leaving the property. It shows a side view and a rear view of the man and of his face for about 5 seconds. He can be seen to be wearing jogging bottoms and a grey jacket with quite distinctive, although no doubt not especially rare, stitching and features to the jacket.

There was also footage available from a second camera outside the shop but pointing in the opposite direction. This captured a front view of a man. It is not seriously suggested that the videos show different men: they show the same man. It showed him walking briefly across the front of the shop. The first video, having shown the man walking past the shop, shows him crossing the road, going over to 91 Crowson Way. He moves firstly to the front door of the house, then after a period around to the right-hand side of the house and then emerging from the right-hand side of the house, moving across the front of the house and moving down the left-hand side of the house and disappearing down in that direction.

On 4 May 2016, Police Community Support Officer Laughton ("PCSO Laughton") viewed exhibit RJ/01; that is to say the first of the videos we have described, in which the man moves past the front of the shop and then across the road and goes to the premises that have been burgled. At that point on 4 May that was the only footage that had been obtained. Viewing that, PCSO Laughton identified the applicant as the man in the footage.

Quite a long time later, on 27 October 2016, she viewed the second video. In giving her evidence in the course of the trial PCSO Laughton described how when viewing the first video she had watched it twice and made the identification of the applicant. When she came to view the second, she viewed it only once and was clear in her view that it also demonstrated the applicant: that was who she was watching.

At the time of the burglary, the applicant was living at an address about half a mile away from the burgled property. On 5 May 2016, that is to say the day after PCSO Laughton identified him from the first video she had seen, he was arrested at his home address. That means that his arrest was about a week or so after the burglary. He was wearing a pair of grey jogging bottoms. The grey jogging bottoms he was wearing on the day of his arrest had a distinctive logo on one leg which is not visible on the jogging bottoms worn by the man in the footage. A grey hooded jacket was seized from his bedroom which is very similar to the jacket seen in the video.

There was no direct forensic evidence to link the applicant to the burgled property. A footprint from a training shoe was left at the scene, on the kitchen counter after the window had been forced. The evidence the Crown could present, or that was available, was that it was a shoe size most likely between 9 and 11.

When the applicant was arrested he was wearing trainers but they were clearly not the trainers seen in the video and they could not be linked directly to the footprint on the kitchen counter. However, he did have a shoe size of 10 and so his foot was in the correct range of size.

The applicant has previous convictions, and had previous convictions then, arising between 2003 and 2011, for eight dwelling burglaries, and a further two convictions from 2012 and 2014 for attempted burglaries of dwellings.

When he was interviewed by the police, the applicant denied the offence, but he conceded that it could be him in the CCTV footage, which he was shown. That must have been the single first video, RJ/01 only, because his arrest took place before the second had been obtained.

The evidence from PCSO Laughton clearly was important and the background to her knowledge of the applicant was important. She had been based for 6 years at the local police station and said she had seen this applicant on three previous occasions, which she was able to detail to the jury. The first was in February 2016, when she saw him mowing the lawn outside his parents' home address in Deeping St James. On that occasion, she drove past in a police car and was about 20 feet away.

The second occasion was on 11 April 2016, when she pointed him out to a police sergeant. They stopped the car and spoke with the applicant for about 10 minutes. He acknowledged who he was and on that occasion she was about 2 feet away from him.

The Crown submit that it was significant that she was able to point the man out on this occasion: she knew him well enough to identify him to her companion before the conversation took place.

The third occasion was on 18 April 2016, when the applicant was said to be riding a bicycle in the street and on that occasion her account was that he was wearing the same coat as could be seen in the CCTV footage. She was in no doubt that it was the applicant on the footage that she had viewed. She had viewed the footage alone and she had not been provided with any names before viewing the video RJ/01 as to who the suspect might be.

Much of the other evidence was agreed: the timing of the burglary, the timing and positioning of the CCTV footage. The fact that PCSO Laughton had identified the applicant from the first film alone and had had her identification confirmed by the second was not itself an issue.

The ground advanced, the essential basis of the application, is that the prosecution case was too weak to justify the admission of the applicant's considerable bad character.

That turns on the judge's assessment of the case and on the proposition that his assessment was unreasonable. The key parts of the case were the identification by the officer; the similarity of clothing, the tracksuit bottoms were grey, although the logo cannot be identified on the footage; the jacket and its specific stitching was said to give a close identification; and the proximity between the burglary and the applicant's place of residence. The Crown also relied on the sequence of the PCSO's identification process and linked that to the fact that she said she had identified him shortly before to a colleague, as we have already indicated. The only substantive question is whether that was enough.

In her oral submissions following upon the written grounds, Ms Leonard emphasised that there was no prosecution expert evidence before the jury linking the colour of the clothing seen in the videos, and in particular the colour of the jacket, with the jacket which had been seized from the applicant's home. The jacket itself had been produced to the jury so they could see the object themselves and they could see the videos.

The defence submitted at trial, and emphasise now, that the identification from the video was not certain. They say that the description of hairline which had been given by the PCSO as an important feature of her identification from RJ/01 was perhaps less than totally convincing; that the short viewing by the officer, of the second video in particular, which she only looked at once, might be thought to indicate that the witness had seen what she had wished to see; that her preconception had overmastered the attention she had given to the identification; and of course Ms Leonard makes the point with which we are all familiar that honest identifications can be wrong.

However, considering all of those matters, we are clear that there was a perfectly proper basis for the judge to admit the convictions on the evidence that he had before him. Certainly a reasonable jury properly directed could have concluded without more that the person on the CCTV was the applicant; and because of the timing, the positioning, the link to the clothing and the proximity to the applicant's address, it seems to us that there was a proper basis for the admission of these convictions.

In the course of argument, Ms Leonard has submitted that the expert evidence called by the defence did not address the question of colour match because the expert was not asked so to do, and that is correct. The expert, when he did come to give his evidence, was only able to give very limited qualification to the identification drawn from the video evidence. He explained to the jury, and no doubt some of the younger jurors would have understood it readily, that the process of storage of the digital information from cameras of this kind means that the digital information is compressed and therefore that the footage is less than perfect.

We have taken care to look at the footage ourselves and the quality is nevertheless pretty impressive. The question of linking the appearance and colour of an object which the jury had - the jacket - with the appearance and colour on the video does not require, in our view, expert evidence. It is perfect proper to advance a case of that kind asking the jury to use their own observation and common sense: there is no lacuna in that respect.

The defence expert, moreover, in cross-examination, said there were similarities between the appearance of the clothing on the video and that which was produced, and indeed with the applicant himself. Broadly speaking, he categorised the similarities as permanent features and the dissimilarities as transient features. Now, of course, the defence expert evidence had not been given at the time when the judge made his ruling relating to the bad character application and so he was not called on to assess that evidence, but we are able to say that nothing in the defence expert evidence as we have seen it summarised gives rise to any concern that this conviction was unsafe.

There is no complaint by the applicant, and properly so, about the way the matter was summed-up: the jury was properly warned to take real care about identification evidence, although this was no fleeting glance case. They were also properly warned as to the care they should take concerning the previous convictions and the use they should make of them and the use they should not make of them.

We pause to observe, as we have in the course of the argument, that previous convictions can only prove propensity; in this instance propensity to burgle. It is the evidence of propensity which in the circumstances of a case like this can be linked to the identification evidence. There is no separate route by which bad character evidence can be relevant to demonstrate support for an identification and although the matter was put on two bases when the application was made, we consider only one basis is intellectually or logically indefensible. However, that does not alter the fact that they were properly admitted and the jury were properly directed as to how to use them.

For those reasons, this application is dismissed.