R v Dylan Weatherley

On 31 July 2024 in the Central Criminal Court, before HHJ Sarah Whitehouse KC, the applicant was convicted of manslaughter, one count of kidnapping and one count of false imprisonment (those being counts 1, 3 and 6). He was acquitted of murder, a further count of kidnapping and a further count of false imprisonment (counts 2, 4 and 5).

On 5 September 2024, the applicant (then aged 20) was sentenced to 5 years' detention in a young offenders' institute on each count concurrent. These sentences were made consecutive to the minimum term of 14 years 310 days of a life sentence that the applicant was already serving in respect of a previous conviction for conspiracy to murder.

The applicant seeks to renew his application for leave to appeal against conviction, leave having been refused by the single judge. The sole ground of appeal relates to the quality of identification evidence which the applicant contends was not sufficient for it to be put before the jury.

The facts in very brief summary are as follows. At around 10.30 pm on 14 October 2022, Mr Koray Alpergin (the deceased), a well-known broadcaster within the UK Turkish community, was returning home in his car with his partner, Ms Dalbudak. Upon parking his vehicle, they were attacked by a group of males and bundled into the back of a van. Both were physically assaulted and taken to premises called the Stadium Lounge located off White Hart Lane in Tottenham. Ms Dalbudak was locked in a lightless lavatory and kept there for two days with very little food. During the first night of her ordeal, she heard Mr Alpergin being tortured. Mr Alpergin sustained 94 injuries, including bruising, fractures, strangulation and burns. He was in fact tortured to death. After he was killed, in the early hours of the next day his body was moved to different locations, before being dumped, naked and wrapped in a piece of carpet, in woodland in Essex.

The plan to kidnap Mr Alpergin had been in operation since at least 23 September 2022 because in the early hours of that morning a tracking device had been placed under his car. That device was replaced by another in the early hours of 11 October 2022.

There was no evidence that the applicant was involved in the advanced planning of these crimes. He only became involved on the day of the kidnapping itself. On that evening at about 8.13 pm, a man referred to in the trial as ‘Subject 2’ arrived at Pretoria Road in Tottenham, where he joined a group of men gathered in a café. Around half an hour later, the men left in three vehicles: a white van, a Volkswagen Polo and a third vehicle. Subject 2 was in the Polo. All three vehicles travelled to the home address of the deceased, where they waited for their victim. After the kidnapping the van drove off.

Shortly after this, a neighbour of the deceased, aMr Sepehr Malek, had parked nearby and was walking home when he noticed somebody lying on their back under the deceased's vehicle. As he walked towards the car, the person (said to be Subject 2) jumped up from under the car and asked if he could borrow Mr Malek's mobile phone. Once he had the phone, he went back under the car, using the phone as a torch. It seemed that he was looking for something under the car. When he emerged less than a minute later, Mr Malek could see a black box in Subject 2's hand. Mr Malek's phone was then returned to him. It was the prosecution's case that Subject 2 had been tasked to remove the tracking device from the deceased's vehicle.

The prosecution's case was that Subject 2 was the applicant and that he had acted together with others in kidnapping the deceased and Ms Dalbudak. To prove the case the prosecution relied on, amongst other matters, identification evidence fromDC Daisy Gunn (the CCTV officer in the case) about the process she used to identify Subject 2; the fact that the applicant knew Resit Murat, whose phone was used multiple times to call several of the applicant's co-defendants, including the driver of the Polo on the night of 14 October; the evidence of Mr Malek, who saw Subject 2 emerge from under the vehicle and who gave evidence that Subject 2 was around the same height as he was - 5'10; and the fact that the applicant lived near to 79 Pretoria Road, which would be consistent with the timing of Subject 2 being in the vicinity of this address. The prosecution also relied upon the fact that no mobile phone could be ascribed to the defendant on or around the day of the event. There was an application early on in the trial to exclude the identification evidence relied upon by the prosecution. That application was rejected.

The defence case was that the applicant was not Subject 2 and this was not part of his plan at all. The applicant did not give or call evidence. A submission of no case to answer was made on his behalf at the conclusion of the prosecution's case. It was submitted that the identification evidence was not sufficient to prove that he was Subject 2; the CCTV footage relied upon by DC Gunn was a grainy image, with a partial view, in a dim light, for just a few seconds. It was said that the other evidence relied upon was not sufficient to support his identification.

The judge rejected that submission. In a clear and comprehensive written ruling, the judge found that, despite the weaknesses in the identification, the prosecution evidence gave rise to a number of coincidences from which the jury might conclude that DC Gunn had correctly identified the applicant. The jury would also have other sources of comparison available to them: body worn footage of the applicant's encounter with the police a few months earlier; the still custody suite photograph; and the applicant's appearance at trial.

Leave is sought in respect of a single ground of appeal, which is that the judge should have acceded to the submission of no case to answer either in its entirety or in respect of all counts save for the kidnap of the deceased. That is because the identification evidence relied upon was of such poor quality that it did not reach the threshold for being used by a jury.

Ms Moore KC appears with Mr Keene for the applicant, as they did below. We are grateful to both counsel for their assistance in this matter particularly as they appear pro bono. Ms Moore submits that the identification evidence is woefully inadequate in terms of its quality and therefore not capable of being bolstered or supported by circumstantial and tangential evidence of association. She points out that the facial image in the video was blurred and lasts for just over a second, with no features being discernible and was such that no meaningful comparison could be made with other images known to be that of the applicant.

Criticisms are also made about the lack of documentation in relation to DC Gunn's inspection of the video. It is further submitted that the other factors capable of supporting the identification evidence were not sufficiently strong in themselves or in combination with the image to allow this material to be left to the jury and that accordingly the convictions are unsafe.

Although the image of the applicant on the CCTV footage was described by the judge in her ruling as "very poor", it is apparent from her decision that she considered it to be of sufficient quality for the jury to reach its own conclusion as to whether it was good enough for a comparison to be made.

Having viewed the footage ourselves, we consider that the judge was correct to take that approach. The footage is not so devoid of discernible features as to render it valueless or impossible to make any safe comparison. Certain features, such as physical build, skin tone and the style in which the hair was worn, are discernible. The jury could, with appropriate warnings as to the inherent difficulties with such evidence, rely upon these and other features in drawing a comparison with other images of the applicant and their own observations of him. Furthermore, there are no identified features of Subject 2 that were definitively not shared by the applicant. In those circumstances it was for the jury to decide whether the footage was good enough for a safe comparison to be made, subject to a direction (which was given in this case) that if they considered it not good enough, they must ignore DC Gunn's evidence and not make any comparison of their own.

As to the criticisms made of DC Gunn's approach to the evidence, these points amount to rearguing the points taken below. The criticisms of DC Gunn were explored in cross-examination and were the subject of careful legal directions, which made it clear that the jury should bear these criticisms in mind in deciding whether her evidence of identification and her opinion are reliable.

A point is taken about the respondent's submission that a pigtail similar to the one worn by the applicant on an earlier occasion is evident from the image, when, according to Ms Moore, that is not the case when the video is viewed.

However, this was a matter on which submissions were made during the course of the trial and the jury would have been entitled to and could form its own view on that issue.

Importantly, the CCTV footage did not stand on its own. It was supported by numerous other strands of evidence identified by the judge in her ruling, all of which the jury had to consider. The cumulative effect of such evidence, taken with the image, was clearly such that it was appropriate for the question whether Subject 2 was the applicant to go before the jury. The convictions were not unsafe, and we consider the contrary to be unarguable. For these reasons leave to appeal is refused.