Barker, R. v

This is an application by Marcus Barker for leave to appeal against conviction which relies on fresh evidence. It has been referred to the full court. He needs a short extension of time in order to pursue his appeal, which we grant.

On 6 September 2019, in the Crown Court at Manchester, before His Honour Judge Smith, the Applicant was convicted of Robbery, contrary to s.8(1) of the Theft Act 1968. On the same day (before the same Court) he was sentenced to a term of imprisonment of 7 years.

The robbery, it is agreed, began at 21:47:27hrs on the 6 April 2018. The timing is precise because it was captured on CCTV. That was the time at which the robber entered the victim‟s car. The victim got out of the car about 16 seconds later, and the robber drove away in her car. After the conviction, a video clip was produced from the Applicant‟s SnapChat account by his partner, Hayley Randles. This is timed at 21:48 on the 6 April 2018. Its provenance has been checked by the police and it is agreed that because of the time when, and the place where it was taken, the person who took it cannot have been the robber. The clip does not show the person who took the video, but there is a very short piece of audio recording of a male voice which is presumed to be that of the person creating the film. The video shows Hayley Randles driving a car, presumably hers, past a particular location which can be identified. The evidence that it was the Applicant who took this film is the fresh evidence which is the subject of this

We are required to decide whether to receive this fresh evidence under section 23 of the Criminal Appeal Act 1968 and, if so, whether to allow the appeal.

Michelle Boswell parked her white Vauxhall Corsa in Millwright Street in Newton Heath, close to the Lloyds Bank. She made a cash withdrawal of £20 and got back into her car. A male holding a knife got into her car and demanded money from her. She handed over the money and got out of her car at 21:47:43 as requested. The male immediately drove off in her car. At about 22:06, PC Haxby was informed that a robbery had taken place. He undertook a local search, and at about 22:15 he found the victim‟s car parked in Langcroft Drive, Newton Heath, which is about a three minute drive from where the robbery took place. The car was parked very close to number 14, which was the home address of the Applicant‟s girlfriend, Hayley Randles. At this time the Applicant was living there with her. The route from the Bank to this place requires the vehicle to move off the main roads and drive to a small residential street, which does not appear to be an obvious route to anywhere else. The jury saw body worn camera footage of the area and it appeared that the car had stopped against some bollards which restricted its further progress. It was a residential area with places where cars could park, rather than a thoroughfare. The robber had, it would seem, chosen to leave the victim‟s car at the place where it was recovered, about fifty feet or less from the door to the Applicant‟s home. The police had arrived on the scene within 27 minutes of the robbery. There had been no chase following the robber from the scene of the crime, and the robber cannot have expected them to be there so soon.

Whilst PC Haxby was searching the victim‟s car, the Applicant came out of the address, he first headed towards the victim‟s car. The officer gave evidence that he had looked up, seen the police and “about turned” and went back towards the house. He then went back into the house. The officer said that he came out again, went to Hayley Randles‟ car and was seen to be fumbling at its door. The officer did not see him take anything out of the car, but accepted that he may have done. He went back to the house.

The police went to the front door and asked who was at the address. We have a transcript of that conversation and have also viewed the body worn camera footage of it (as did the jury). The officer first spoke to Hayley Randles alone, and the Applicant then joined them. This is important evidence and we will set out the transcript. We have underlined certain answers which are of significance. We also emphasise the questions which the police asked. They did not make any allegation of robbery, and said only that someone had run away from a car and they were checking to see if anyone had seen anything. If the answers given by either or both of Ms. Randles or the Applicant were not true (they both gave alibi evidence at trial consistent with their having been at home for the time given to the police) this would raise a question about why, when asked such open questions, they would lie. They were not then in the position of a person making up a false alibi defence to bolster a true defence. They had no idea, on their account, that any defence to anything would ever be required. The Applicant‟s remark that something must have happened when they had nipped out does not fit with what the police had said they were asking about. The conversation was as follows:-

The judge in summing up said this about that evidence:-

“So when you are looking at the alibi, you know you will have the bodycam footage and the record of the transcript of what was said at the time. As you know, when Hayley Randles answers the door, saying that they had been in for about an hour, and Mr Barker saying that they had nipped out and it must have happened when they had nipped out. “When you‟ve what?”, “When we‟ve nipped out before, me and her”. “What time have you got back?”, and Miss Randall saying, “Forty-five minutes ago”, and he saying, “Yes, about forty-five minutes ago or something”.

“Now, on that, you are going to have to see whether you agree or do not agree with the suggestion from the prosecution that that was Miss Randles anticipating and preventing Mr Barker coming up with anything else that might in other words put him in it, that she was volunteering that first, or effectively was that an officer in a small doorway talking to two people making a general enquiry and she happened to answer first, innocently and not falsely or with the reasons that the prosecution suggest.”

The prosecution suggestion there recorded appears to be based on the terms of the conversation, and the perception which the jury may have formed during the trial that Ms. Randles is significantly more sharp-witted than the Applicant. At all events, at trial both gave evidence that at the time of the robbery they were both at home and had been for some time before the police arrived at about 22:15. Mr. Jamie Sykes, the brother of Ms. Randles, also gave evidence to the same effect.

The police arrested the Applicant on suspicion of robbery. They suspected him because he fitted the victim‟s description of the robber, and because he lived at the house very near the point where her car had come to rest. A search of the house was carried out and nothing connected to the robbery was found. The car keys of the stolen car were not recovered.

On 7 April 2018, the Applicant was interviewed by the police. He denied being involved in any robbery and said that he had been at his girlfriend‟s house that evening. This was his defence at trial, and in view of the fresh evidence which is the subject of this appeal, his first full account of his whereabouts at the time of the robbery is important. He was asked for an account of his movements, and described two journeys by car from Hayley‟s address in Newton Heath:-

The interview then went over this account again, and some further detail was established. The Applicant said that he travelled on these journeys with Hayley, who was driving them in her car. He explained which of the children were with them at different times, not always consistently. His position now is that during the second journey, Jamie was looking after only Riley, Hayley‟s son, who was asleep in bed. At one point in the interview he said that they had Riley with them while Jamie was looking after Lyla and Lexi. This inconsistency about detail may be important, because one possibility is that the Applicant was not present in Ms. Randles‟ car during some or all of the journeys he was describing. When cross-examined about this, the Applicant said that he had been confused in the interview. One problem which he did mention was the fact that there was no room in Ms. Randles‟ car for all the people who were present in her home when the police arrived: three adults and three children.

The Applicant did not say how long had elapsed between the end of the second journey and the arrival of the police. His account in interview is not, therefore directly in conflict with his evidence to us, and the evidence he gave to the jury.

On 23 April 2018 the victim attended an identification procedure and positively identified the Applicant as being the male who had robbed her. The jury was able to see the video film of the procedure and to assess the significance of the fact that she asked to see two images again, before pointing to the Applicant‟s image saying “I‟m not sure between four and eight. I think it‟s eight”. Eight was the Applicant‟s image. On 11 June 2018, the Applicant was further interviewed by the police and made „no comment‟ to all questions.

The defence case was supported by evidence from the Applicant, Ms. Randles and Jamie Sykes. Their evidence was inconsistent in some respects about the earlier journeys of which the Applicant had spoken in interview, but was consistent in that they described two lengthy events which had taken place after their final return to her home. First, the Applicant and Jamie Sykes had spent something like ten or fifteen minutes smoking in her car. The Applicant shouted to Mr. Sykes when he got back asking him if he would like a smoke and they both went and did that. The Applicant was clear that at this time there was no white car in the position where he later saw the victim‟s car. The car must have arrived, and the robber must have fled, after they went into the house after their smoke. Both Mr. Sykes and the Applicant gave evidence that they had then played Call of Duty for about half an hour. They both said that they had got to a high level, level 23, in the game and this takes about that long. In his evidence, the Applicant said that he had stayed at his sister‟s for about five minutes before setting off home and arriving by about 21:15. When he was asked during his cross examination how it was that Jamie had got in the car to have a cigarette with him, he said:-

In his evidence the Applicant had told the jury that he had never driven a car in his life, and that he did not drive because he has keratoconus which means he is not permitted to drive. The judge admitted convictions which involved him driving a vehicle on 5 May 2009. He had pleaded guilty to aggravated vehicle taking, and driving without a licence or insurance. The judge gave a firm direction as to how the jury could and must not treat them. They could treat them as relevant to credibility but they must not use them to show that it was any more likely than otherwise would be the case that the Applicant committed the robbery. It is hard to see how a fair minded jury could take the view that these convictions, at the age of 16, could support the prosecution‟s case on robbery. However, they might cast light on whether the inconsistencies in his account of his movements on 6 April 2018 were the result of muddle, or whether they might reveal a witness who was concerned to mislead the jury.

The prosecution case therefore rested principally on the following pieces of evidence:-

As we have said, the fresh evidence comprises the video clip and oral evidence from the Applicant and Ms. Randles which identifies him as the person who took it, and whose voice can be heard on it. It includes the admission by the Crown that if he did take the video, he was not the robber. This is set out in the Form RN supplied by the prosecution in January 2021. This says

“27.

The Respondent has been supplied with (i) the access codes to a Snapchat account related to the email address „marcusbarker1993@gmail.com‟ and (ii) an iPhone, which, it is said, belonged to the Applicant at the relevant time. From an examination of the Snapchat account and the iPhone, the Respondent has been able to locate the relevant video.

28.

The video has a time stamp on it of 9.48 pm. A forensic examination of the iPhone shows that the video was recorded at 21:47:53 on 6 April 2018 at the junction of Alan Turing Way and Ashton Old Road in Manchester. It was taken by the front seat passenger in a car. The driver is accepted to be Hayley Randles.

29.

In the background of the video an ambulance can be seen attending what appears to have been a road traffic accident. The officer-in-the-case, DC McHugh, has confirmed that a road traffic collision took place at that junction on 6 April at around 20:48. Emergency service vehicles attended the scene and departed by 21:54.

30.

That evidence is consistent with the video having been take at that time and at that location. That is significant because from the CCTV of the robbery the robber first appears on the footage at 21:47. That was Agreed Fact no.2 at the trial.

31.

The distance between the junction where the road traffic accident took place and the scene of the robbery is such that Ms Randles would not have been able to drive from the junction to the robbery scene in a matter of seconds.

32.

Therefore, if the person who recorded the mobile telephone footage is the Applicant, Mr. Barker, then the footage provides him with an alibi for the robbery.”

On 21 October 2020, the Registrar granted a Representation Order to the Applicant‟s solicitors for the public funding of an expert report in relation to the issue of voice recognition. The Forensic Voice Comparison Report of Elizabeth McClelland dated 23 November 2020 is being relied on by the Applicant in support of this appeal. She concluded that the voices were consistent (the Applicant could not be excluded) and there was limited support for the view that the voice in the video was that of the Applicant. This is principally because the amount of voice recording on the SnapChat clip is very small. The voice could belong to the Applicant, but it could also belong to an unknown number of other men. “Limited Support” is the lowest level of support on her verbal scale by which she expresses the weight which can be attached to her conclusions.

The trial solicitors and counsel have been contacted by the Registrar following a waiver of privilege. They confirm that they were not told about the video clip and that it is inconsistent with their instructions, and the alibi defence which was placed before the jury. They also say, as the Applicant accepts, that they advised him to check for any digital evidence which would support his account. They mentioned social media, and also the Xbox machine on which any game of Call of Duty was played. It is now common ground that at 21:48 on 6 April 2018 the Applicant was not playing Call of Duty with Jamie Sykes on that machine. He was either in the passenger seat of Ms. Randles‟ car taking a short video clip, or robbing Michelle Boswell. The failure to produce any evidence from the Xbox machine is therefore not surprising. The failure to produce the video clip, which was accessible to the Applicant on his SnapChat account every time he accessed any device capable of accessing it, in particular his phone, is something to which we will return.

There were some further pieces of evidence at the trial about the phone which was then being used by the Applicant and which have now assumed rather more importance than they would have had then. Some of the fresh evidence adds to this. The iPhone was actually owned by Donna Allright, so she said in her evidence to us.

We have summarised the evidence of the Applicant in the previous paragraph when dealing with the iPhone. Hayley Randles also gave evidence before us. She confirmed the Applicant‟s account of how the video clip was discovered by her soon after the conviction. She said it had not crossed her mind to suggest to the Applicant

Section 23 of the Criminal Appeal Act 1968 is as follows:-

In an avowedly obiter passage in paragraph 24 of R. v. Ahmed [2010] EWCA Crim 2899, Hughes LJ, as he then was, explained the approach of this court in appeals based on fresh evidence:-

“The responsibility for deciding whether fresh material renders a conviction unsafe is laid inescapably on this court, which must make up its own mind. Of course it must consider the nature of the issue before the jury and such information as it can gather as to the reasoning process through which the jury will have been passing. It is likely to ask itself by way of check what impact the fresh material might have had on the jury. But in most cases of arguably relevant fresh evidence it will be impossible to be 100% sure that it might not possibly have had some impact on the jury's deliberations, since ex hypothesi the jury has not seen the fresh material. The question which matters is whether the fresh material causes this court to doubt the safety of the verdict of guilty. We have had the advantage of seeing the analysis of Pendleton [2001] UKHL 66; [2002] 1 Cr. App. R. 34 and Dial [2005] UKPC 4; [2005] 1 WLR 1660 made recently by this court in Burridge [2010] EWCA Crim 2847 (see paragraphs 99 — 101) and we entirely agree with it. Where fresh evidence is under consideration the primary question “is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury.” (Dial). Both in Stafford v DPP [1974] AC 878 at 906 and in Pendleton the House of Lords rejected the proposition that the jury impact test was determinative, explaining that it was only a mechanism in a difficult case for the Court of Appeal to “test its view” as to the safety of a conviction. Lord Bingham, who gave the leading speech in Pendleton , was a party to Dial.”

That passage has been frequently followed, see most recently R v. Park [2020] EWCA Crim 589 at [178]. It may once have been obiter. It now represents the law. The question is whether, having regard to the fresh evidence, we think that the conviction is unsafe. This is the ultimate question in all appeals against conviction, and is mandated by the terms of section 2 of the 1968 Act. In answering that question, we are required to have regard to the factors listed in section 23(2) of the 1968 Act “in particular”, but that is not an exhaustive list of relevant matters and none of them on its own answers that question.

The video clip constitutes fresh evidence which is capable of belief. It proves that the man who took it, when sitting in the passenger seat of Hayley Randles‟ car at 21:48 on 6 April 2018 did not rob Michelle Boswell. It does not prove who that man was.

The evidence which is relied upon to show that it was the Applicant who took the video is circumstantial and direct. The direct evidence comes from him and from

The evidence given at trial on behalf of the defence supported a defence of alibi. This required the jury to be sure that the alibi was not true before the Applicant could be convicted. On its face, it is just as exculpatory for the Applicant to have been in his partner‟s house playing Xbox with her brother at the time of the robbery, as it is for him to have been with her, on his way home, in her car. The jury was sure that the evidence relied upon by the prosecution was sufficiently cogent to result in his conviction, notwithstanding the clear directions they were given about the burden and standard of proof and the dangers of placing too much weight on a finding that an alibi was false. In this case that danger was limited because the falsity of the alibi was established only by the cogency of the prosecution case proving that the Applicant committed the robbery. The alibi evidence contained inconsistencies but there was no clear evidence that it was not true, except the matters which showed that it could not be true because the Applicant was the robber.

The real power of the prosecution case was the identification, supported by the place from which the victim‟s car was recovered. Some additional strength could be derived from the fact that the Applicant very broadly resembled the description given by the victim in his appearance and clothing, and by the behaviour of the Applicant observed by Police Constable Haxby. That additional strength was limited in force. There were problems with the identification evidence, in that the Applicant did not entirely fit the descriptions of the robber given by the victim and by another witness who did not pick him out. His clothing and colouring were certainly well described

It appears to us that the problems in the identification evidence were resolved in favour of the prosecution because of the finding of the car very near to the house where he was arrested. That location was strong support for the identification evidence of the victim. Whereas it is easy to see why the Applicant might drive to that location, it is much harder to accept that the identification was a mistake and the place where the car was found merely a coincidence. It would be wrong to take each of these two pieces of evidence in isolation. Taken together, they make a strong case.

The alibi evidence called at trial was, it is now agreed, wrong. In our judgment it was obviously dishonest, and the video clip provides further evidence in support of that conclusion. Hayley Randles was not in her house at 21:45-21:50, and she did not see the Applicant and her brother playing Xbox at that time. We reject her evidence, and that of the Applicant, that the false alibi arose by their joint inability to be precise about the times. That dishonest process started at 22:15 when she told the police that they had been home for an hour or 45 minutes. She at least, it is now certain, had been at home for about 15 minutes at that time. The Applicant agreed with her during this conversation. That is not explicable by a muddle about timing. At that point, as we have observed, unless they both knew that the Applicant had committed a crime during the 45 minutes or hour when they falsely claimed he had been in the house, there was no reason for them to lie at all. We have analysed the police questions which produced this joint false account above.

The alibi was then explained by the Applicant in his interview on the following day, when he did not give times. In May 2018, Ms. Randles made her statement to the police which gives a different version of events from that which he had given, and from that which she later gave in evidence to the jury. Jamie Sykes was recruited to try and support this account, although his evidence at trial seems to have been quite muddled about the events of the evening, which probably did not help. That now assumes some importance, because if the Applicant was not the one who took the video, Jamie Sykes is the only other identified candidate for that role. His participation in the false alibi, and his muddled account of what happened that night is a feature to be taken into account when assessing the fresh evidence and the safety of the conviction.

There is, in truth, no reasonable explanation for the failure to adduce the evidence of the video clip at the trial. The phone was in daily use by the Applicant for 18 months between his being charged and the trial. It is very difficult to accept that nobody looked at it to see what it held in relation to the date and time of the robbery until very soon after the conviction. His suggested explanation, namely that he was innocent so he did not think he needed to follow his solicitors‟ advice is absurd. His sense of innocence did not stop him concocting a false alibi, why would it stop him looking for evidence of a truthful one? One explanation might be the same as the real explanation for the failure to check timings on the Xbox. They were not playing Xbox at the time of the robbery, so would hardly look for evidence in it. In just the same way, if the Applicant did not have his phone at the time of the robbery it would be pointless to use it as evidence of alibi. The fact that this evidence was not deployed at trial suggests strongly that it is, in fact, irrelevant.

At all events, any relevance it may have is dependent upon the oral evidence given about it. This is not capable of belief for reasons we have already identified. The difficulties in the evidence are inescapable, and derived from comparisons between the different accounts, some of which were given on oath.

It is possible to envisage reasons why a person embarking on a robbery may not wish to have his phone with him, and may prefer to leave it with others. Such a person may encourage those others to use it while they have it, and are not close to the scene of the robbery. It can also be speculated that when the police arrived unexpectedly before the phone was properly looked at, such a person may decide to say that they have been at home for an hour or 45 minutes prior to that point and thereafter decide to stick with that account. The phone would then be potentially damaging to the defence which is to be advanced at trial and it might be thought to be unwise to produce it. A change of tack consequent upon conviction is, in these circumstances, wholly unpersuasive.

It is not necessary to determine exactly what happened in relation to this video clip before it was produced to the solicitors after conviction. The question for us is whether its production at that stage causes us to think that the conviction is unsafe. The answer is that it does not. The “jury impact” test is a mechanism in a difficult case for the Court of Appeal to “test its view” as to the safety of a conviction. In this case it is necessary to be clear about what this hypothetical jury would see and hear. It is probably best to check this impact by imagining a re-trial in which the jury heard the evidence which was placed before us, and then observed cross-examination about the evidence given at trial. In other words, the only useful test imagines a jury at a retrial should there be one. Testing the fresh evidence by imagining a trial at which it alone was presented as the alibi evidence, and the false alibi never mentioned, is hardly a useful way to assess the safety of this conviction. The material before any jury hearing any retrial would include the passage identified above from his evidence where the Applicant appeared to accept that Jamie Sykes might have been in the car at the time of the robbery, and Hayley Randles‟ statement which suggested that there was only one journey. If that is true, Sykes must have been in the car throughout if, as was said in evidence, they all travelled from their mother‟s house to Hayley Randles‟ house after they had all had their tea with her. Even with the video clip, the defence case would be very unpersuasive. In truth it would probably be even less persuasive than the alibi which was run at the first trial, since it would have to involve either a belated acceptance that the witnesses had lied at that trial or an inevitable finding to that effect from the jury.

We are driven to the conclusion that the evidence given to us about the reasons for the false alibi at the trial is not true. That evidence not explicable by muddle about timings. We conclude that the false alibi was advanced dishonestly at trial and that this dishonesty continued before us. This finding undermines all of the fresh oral evidence.

For these reasons, having considered the fresh evidence we have decided that it does not cause us to think that the conviction was unsafe. It is not capable of belief and would not afford a ground for allowing an appeal. There is no reasonable explanation for failing to adduce it at the first trial. We therefore decline to receive it under section 23 of the 1968 Act and refuse leave to appeal.