Neutral Citation Number: [2004] EWCA Crim 106

Case No: 2002 04505 C3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MANCHESTER
His Honour Judge LEVER

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29 January 2004
Before :

LORD JUSTICE THOMAS
MR JUSTICE McCOMBE 
and
THE RECORDER OF MIDDLESBROUGH 
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Between :

	BRIAN THOMAS BOWDEN	Appellant	
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	Regina	Respondent	

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Mr Paul Worsley QC and Mr McMeakin for the Appellant
Mr Graham Wood QC  and Mr P Taylor  for the Respondent

Hearing date: 18 December 2003 
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JUDGMENT:
LORD JUSTICE THOMAS : 
On 9 July 2002 the appellant was convicted at Manchester Crown Court, Minshull Street before his H.H Judge Lever and a jury of attempted robbery and having a firearm with intent.  He was sentenced to 18 years imprisonment which comprised a custodial term of 16 years and an extension period of 2 years concurrent on each count.  He appeals by leave of a single Judge.
The facts of the attempted robbery
1.	The facts relating to the attempted robbery were not in dispute.  The issue was whether the appellant had been one of those who had participated in it.  The facts relating to the attempted robbery can therefore be briefly summarised.
2.	On 7 March 2001 an attempt was made to rob the Post Office at Greenslade Lane at Droylesden.  Three men masked by balaclavas entered the post office; one had a shotgun and another a sledge hammer; they were seen by several witnesses.  The gun was fired three times at the security screen over the counter.  When the postmaster tried to telephone for help one of the three men shot at him through the screen.  Another attempted to smash the screen with a sledgehammer.
3.	For reasons that will become apparent, it is important to record that the screen comprised of toughened multi-laminated glass; whereas the shotgun pellets penetrated the glass, the sledgehammer only released fragments from the outer layer of glass.  The robbers then escaped without any money.  It is also important to note that four cars were used - a Montego estate, a Fiat Punto, a BMW and a Polo.
4.	In due course the appellant and his father were arrested; between 10th December 2001 and 4 January 2002 they were jointly tried for the attempted armed robbery at the Manchester Crown Court, Minshull Street before HH Judge Lever and a jury.  At the conclusion of the evidence given on behalf of the defence, the Judge directed the acquittal of the father.  The case against the appellant, who denied participation and adduced alibi evidence, was left to the jury, but they failed to agree.  
5.	On 1 July 2002 the second trial began before the same judge.  The principal evidence relied on by the Crown to prove that the appellant was one of those who participated in the attempted robbery can be summarised under three headings:
a)	The balaclava
One month after the attempted robbery the police searched the appellant’s home.  They recovered a balaclava from a drawer.  Scientific evidence was obtained through forensic examination of the following three items on the balaclava:
i)	the appellant’s saliva.
ii)	three fragments of glass which had an identical refractive index with each other and an identical refractive index with the outer sheet of the security screen which had been smashed.  The three fragments also had an identical chemical composition to the screen at the post office. The glass was ordinary glass used in about one in ninety or one in a hundred windows. The inner glass had a different refractive index; no fragments of that were found, but the experts were agreed that the sheet most likely to come into contact with the robber’s clothing was the outer sheet of the security screen. It was common ground amongst the experts that studies had shown that many people had fragments of glass in their turn ups, pockets and elsewhere on their clothing which they picked up from walking where there was broken glass.
iii)	particles of barium and aluminium consistent with these particles having come either from fireworks or from gunshot residue.  Cartridges found at the Post Office contained residues of aluminium, lead, barium and antimony or three or two of these elements. Although it was usual to have cartridges with aluminium in the United States, it was less common in the UK. No antimony was discovered; if it had been that would have been conclusive that the residue had come from a gunshot; the absence of antimony made the residues of aluminium and barium consistent with it either being derived from fireworks or from gunshot residue. It was the appellant’s evidence that the reside must have come from a late 5 November  fireworks party which had been held after his son had discovered fireworks in a cubby hole. 
The appellant accepted that the balaclava was his; there was a substantial amount of descriptive evidence in relation to the balaclava worn by the participants in the robbery from those who had witnessed the robbery.  It was fully summarised by the Judge in the course of his clear and careful summing up.
b)	A diary entry in relation to the Polo
The third of the cars which we have mentioned was a Volkswagen Polo; it had been falsely re-plated with the number N 886 FNO.  It had been stolen at the same time as the BMW and the Montego estate car and there was evidence that it was used in the robbery as a getaway car; whether it was so used, was of course a question for the jury.  The importance of the car was that the false registration number was found in a  2000 diary which had belonged to the appellant. However, the entry was neither in the appellant’s handwriting nor that of his father.  Nor was the diary at the appellant’s home; it was at his parents’ home though there was evidence that he visited his parents’ home on a daily basis.
c)	The rope from the Fiat Punto
Of the cars to which we have referred, the Montego estate car, was blown up as a decoy before the robbery; the Fiat Punto was, according to a prosecution witness, used in connection with the blowing up of the Montego.  It was a question for the jury whether the Fiat Punto was connected in this way with the robbery, but if it was, the importance of it was that the owner had left in it a tow rope with green insulating tape, but it was missing.  A piece of tow rope of identical composition was found in the boot in a bag in a Rover motor car which the appellant’s father had bought in April 2001, after the robbery.  The only factor which linked the rope with the appellant was that he travelled from time to time as a passenger in his father’s Rover motor car.
There was some other evidence against the appellant, but it is not necessary to summarise it for the purposes of the appeal. He also adduced his defence of alibi, but again it is not necessary to summarise that evidence.
The grounds of appeal 
6.	The grounds of appeal all related to the three principal pieces of evidence relied upon by the Crown to prove the appellant participated in the robbery.  The first two grounds related to the question as to whether the Judge was right to admit the evidence relating to the rope and the diary.  The other ground of appeal related to questions asked by the Judge of the defence expert in relation to the balaclava.  It is convenient to deal first with the issues relating to the admission of the evidence of the diary entry and the rope.

The admission of evidence of the diary entry and the rope
The diary entry
7.	We have already referred to the fact that the entry in the diary was not in the appellant’s handwriting.  According to the appellant’s evidence the diary had been used as his telephone book when he lived at his parents’ house.  He had moved out in February 2001, although he visited the house daily. He had left the diary there as a scribbling pad by the phone in that house. A submission was made to the trial judge that the diary should not be admitted because it was not relevant evidence; there was no evidence of sufficient probative value which connected it to the appellant.
8.	In our view there was a sufficient link for it to form admissible evidence; its weight was, of course, a matter for the jury.  It was the appellant’s diary, it was used by him on his own evidence at the end of 2000 and he did visit the house. There was therefore in our view, sufficient to connect the diary with the appellant to make it admissible.  It was of course for the jury to assess its weight.  
The Rope
9.	We have already referred to the single factor which connected the appellant to the rope was that he travelled in his father’s car.   It was submitted on behalf of the appellant that the Judge had been wrong to admit that evidence because there was nothing such as fibrous residue or fingerprints to link the appellant to the rope;  nor was there anything to link the appellant with any item taken from the car of the father;  nor was there any evidence that the appellant had gone into the boot of his father’s car which had only been acquired by the father four weeks after the attempted robbery;  the rope had only been recovered six weeks after the attempted robbery.    
10.	We do not accept that submission.  It seems to us that there was a sufficient link, though as the Judge pointed out to the jury, “the tow rope of itself alone couldn’t start to prove the defendant’s guilt”.  There was evidence that connected the appellant to being a passenger in his father’s Rover motor car and it was thus a question for the jury to determine whether he had put the rope there and if so the weight to be attached to that evidence.
The relevance of the previous trial
11.	In relation to both the diary and the rope a further submission was made in relation to what had happened at the earlier trial of the appellant and his father. When the father had been tried with the appellant, the principal evidence which was relied upon by the prosecution to prove that the father had participated in the attempted robbery was the diary entry and the rope; these had been ascribed by the prosecution to the father in that trial; they had not sought to establish a closer association with the appellant, as the case made against both was one of joint enterprise. The Judge has initially ruled that this amounted to sufficient evidence against him, but during the course of the defence case during that trial evidence was called to show that the writing in the diary was not that of the appellant or his father. It was this fact that led the Judge to conclude, as set out in his very careful ruling on 20 December 2001, that there was insufficient evidence to allow the case against the father to go to the jury.
12.	It was submitted on the appellant’s behalf that in the light of that ruling the Judge should not have admitted the evidence in relation to the diary and the rope in the second trial against the appellant; if it was insufficient against his father, how could it be sufficient against the appellant? We do not agree. As we have stated the two links between the father and the attempted robbery were the diary entry and the rope; the judge was entitled to conclude that that was insufficient evidence against the father for the case against the father to be left to the jury. However, as against the appellant, there was also the very important evidence of the balaclava. There was no question that that provided a link between the appellant and the attempted robbery, the strength of which it was for the jury to determine; the diary entry and the rope also linked the appellant, but in contradistinction to the case against his father, they were not the only links.  They plainly had some evidential value, the weight of which was for the jury to assess. The ruling in the first trial therefore was wholly immaterial to the admission of the evidence in the second trial. Furthermore the fact that the diary entry and the rope had been relied on by the prosecution in the first trial as evidence against the father did not preclude the prosecution from relying on it as against the appellant in the second trial in the circumstances of this case; for example, from the evidence given in the first trial, it was clear that the appellant accepted that the diary was his and many of the entries were in his writing; once it was established that the entry in relation to the re-plating were not in the father’s writing, then it was open to the prosecution to rely on the evidence against the appellant in the re-trial.
13.	It was also submitted on behalf of the appellant that the admission of the evidence in relation to the diary entry and the rope gave the defence no alternative but to put before the jury the fact that the appellant’s father had originally been charged and that he had a conviction for armed robbery. The prejudice thereby caused far outweighed the probative value of the evidence. It should therefore not have been admitted.
14.	It was, in our view, a matter entirely for the defence as to whether they decided to adduce evidence in relation to the appellant’s father; they did not have to. The entry was not in the appellant’s handwriting and the jury could have been left to infer that the entry could have been made by another person; it was certainly not necessary to refer to the father’s conviction, unless it was to give the defence the advantage of being able to point to another potential suspect – his father.
15.	In any event, the Judge gave the jury a very clear direction. He said:
“Mr Worsley in his opening speech to you before he called his client to give evidence said that he hoped that you wouldn’t take the view “like father, like son” Well, members of the jury, I am going to be firmer than that. In this country we have no concept of guilt by association. It is nonsense to say that because the father has in the past been an armed robber that in anyway makes it more likely that the son has committed this robbery. That would be pure prejudice and had no place in an English court. … ”
16.	We are sure that the jury would have followed that admirable direction and not in any way have been influenced in their deliberations either by the previous convictions of the appellant’s father or the fact the father had been jointly tried with him. 
17.	These two grounds of appeal therefore fail.

The questions in relation to the balaclava asked by the Judge of the defence expert.
18.	In relation to the balaclava, the prosecution called Dr Lloyd to give evidence in relation to the fragments of glass found on the balaclava and Mr Blunt to give evidence in relation to the aluminium and barium residue. Dr Lloyd’s evidence was that the glass on the balaclava was moderately strong support for the view that the balaclava was worn by a participant in the robbery. Mr Blunt’s evidence was that the presence of the barium and aluminium lent some support to the balaclava having been worn in a firearms incident  No attempt was made by the prosecution in the evidence called by them to deal with the cumulative effect of this forensic evidence.  The defence called a single expert, Mr Walker.  In the course of his cross-examination, the prosecution did not seek to establish the cumulative effect of the evidence in relation to the fragments of glass and the residue of barium and aluminium.
19.	However, at the conclusion of his cross examination, the Judge asked a series of questions of Mr Walker in which Mr Walker stated:
i)	The finding of glass on the balaclava was consistent with it having come from the Post Office, but that there were other possible explanations; the finding of the glass on the appellant was moderate evidence that the wearer had been present at the Post Office.
ii)	If the balaclava had only had barium and aluminium on it and no glass, that would have been towards the bottom end of the scale of evidential support – limited to moderate evidence that the wearer had been present at the Post Office.
iii)	If the evidence of the barium and aluminium residue was taken together with the glass,  one would be moving up from the moderate to moderately strong.
20.	The jury were then asked to withdraw; counsel for the appellant submitted that the Judge had entered the arena and should not have asked the questions as the prosecution had not done so; questions from the judge carried more weight. Counsel for the appellant accepted that nothing procedurally or forensically unfair was asked, but the judge had entered the arena. After further submissions, counsel for the appellant was given time to consider any further questions he wished to ask of Mr Walker.
21.	Counsel for the appellant then asked one further question of Mr Walker:
“You have told us about particulates; the barium and the aluminium. You told us about the glass that was found. Can you answer this yes or no. Can you as an expert say that the presence of the particulates, barium, aluminium and the fragments of glass make you scientifically certain that the mask was worn at the scene of the robbery”
	Mr Walker answered 
“Definitely not”
22.	The evidence of Mr Walker concluded on Friday 5 July 2002. On Monday 8 July 2002, the judge provided to counsel a note entitled “check list before speeches.”  Included in this documents were his provisional views on the questions he had asked Mr Walker.  The Judge stated that he had concluded that with the benefit of hindsight the prosecution had wisely decided to leave the questions alone and to reserve the point for the closing address to the jury; that he had been unwise to have asked many questions on the point and it would have been better if he had not done so; that his questions had elicited what was obvious to anyone. He proposed either directing the jury to pay no attention to the questions he had asked and the answers so elicited or to listen to an application to discharge the jury, with an assurance that the case would be re-heard as soon as possible before a different judge. In the result, the appellant did not wish the jury to be discharged and his counsel, for understandable reasons and not wishing to highlight the issue, asked the judge not to direct the jury in the terms proposed. 
23.	It was accepted on behalf of the respondent that the questioning by the judge may have been inappropriate; indeed the learned judge himself very properly accepted that it was unwise of him to have asked the questions. It is also our view that questions would have been best left unasked and counsel permitted to develop in their closing addresses the inferences to be developed from the primary forensic evidence given.
24.	However the real question for the court is whether any unfairness resulted or whether the conviction was in consequence unsafe.
25.	We have considered the questions asked by the Judge and the single question asked on the appellant’s behalf as a whole. We do not consider that any unfairness resulted. For the reasons given, we agree with the Judge’s second thoughts that it would have been better if he had refrained from asking the questions; indeed it is seldom wise for a Judge to ask questions in such circumstances, particularly where the trial is being conducted by such competent and experienced counsel. However, the issues raised by the questions were obvious issues which the jury would have had to consider in any event; when considering whether the prosecution had proved their case, the jury would have had to consider the weight to be attached separately to the forensic evidence in relation to the glass and to the residue of barium and aluminium; the jury would then clearly have asked the question as to the weight to be attached to the forensic evidence considered as a whole. The answers given by Mr Walker to the questions asked by the Judge were no more than the common sense conclusions that would have been drawn by the jury. Furthermore the question asked by counsel for the appellant made it very clear that the cumulative effect definitely did not produce any scientific certainty. There was thus no unfairness which resulted from fact that the Judge asked the questions.
26.	Counsel for the appellant rightly made no criticism of the formulation of the questions asked by the Judge; they were put in a neutral manner. The error made by the Judge was in intervening, not in the manner of his intervention. There was thus no unfairness which resulted from the manner in which the Judge asked the questions
27.	We have carefully considered whether the intervention by the Judge gives rise  to any doubts as to the safety of the conviction. We are satisfied that there are no such doubts; the evidence against the appellant was in any event strong. The answers given by Mr Walker were the natural and obvious inferences that would have been drawn by the jury even if that evidence had not been given.
28.	The summing up was a fair, balanced and clear summary of all the evidence.
29.	This ground of appeal therefore also fails.
30.	In the result we therefore dismiss the appeal against conviction.