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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Dove & Ors v R. [2005] EWCA Crim 1982 (26 July 2005) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2005/1982.html Cite as: [2005] EWCA Crim 1982

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IN THE COURT OF APPEAL
CRIMINAL DIVSION

		Royal Courts of Justice Strand. London. WC2A 2LL
		26/07/2005

Mr Justice Ouseley:

1. On 31^st July 2003 at the Crown Court at Guildford before HHJ Bassingthwaighte and a jury, Dove, Davies and Chesterman were convicted on one count of conspiracy to· rob. On 28th April 2003 Dove had pleaded guilty to -the theft of a motor vehicle, a Cherokee jeep. On 31^st July 2003 Dove was sentenced to 9 years detention in a young offender institution for the conspiracy to rob and 18 months detention to run concurrently for the theft of a motor vehicle. Davies was sentenced to 9 years imprisonment and Chesterman to 9 years detention in a young offender institution. They are now respectively 21, 23 and 20. Two co-accused, Dyer and Smith, were acquitted and a third co-accused, Hayward, had been discharged when the judge ruled at an earlier abortive trial that he had no case to answer. Hayward had also pleaded guilty to the theft of the same Cherokee jeep in respect of which Dove had pleaded guilty and for which Hayward received a community punishment order. Dove and· Davies appeal against conviction by leave of the Full Court (Pill LJ, Gray J and Crane J) following limited leave by the single judge.
2. The prosecution case was that the Defendants were all party to a conspiracy which· resulted in a sequence of robberies. The Crown did not rely on any specific Defendant playing a particular role in any particular robbery, but its case was rather that the Defendants conspired together to commit robberies and may have actually participated in some, all, or none· of the robberies .. The prosecution relied upon a sequence of robberies committed in a close area linked by a number of features and committed within a relatively short space of time. It also contended that there may well have been others who at various times were party to the same conspiracy. It was . therefore not necessarily the case that all the conspirators were before the Court.
3. The evidence against them fell into two linked parts. The first part was the evidence which was said to establish a conspiracy to rob. This related to 12 robberies which took place in an area which fell within parts of Surrey, Middlesex and Berkshire and which took place between 4th December 2001 and 3rd February 2002. These robberies were all carried out at shops and in almost all cases the whole till was stolen. The robberies were carried out by differing number of men wearing facemasks, balaclavas or woollen hats pulled down over their faces. Weapons were used on most occasions including handguns or knives. Two car robberies and the theft of a Cherokee jeep were linked to these robberies.
4. The second part of the evidence related to the links between the Defendants and the robberies. All the Defendants knew each other and shared to a greater or lesser extent an interest in the sport of motorcross. Their links to the robberies were said to have been uncovered when on 12^th February 2002 the Cherokee jeep stolen by Dove and Hayward on 5th February 2002 was chased by the police. It stopped, the occupants ran off, but within the jeep were found a "robbers' kit" as it came to be called, a number of items including weapons of a similar nature to those used in the robberies and several items which after DNA testing would be linked to the Defendants. Chesterman was. found by the police in an· area near the abandoned jeep. Subsequent searches of the Defendants' houses were carried out in which various other items which were said to show a link to the robberies were found. This included the evidence of items from a stolen Subaru which was used in one of the robberies.
5. We turn first to the robberies. The first robbery relied on by the prosecution occurred at Wendover Stores in Staines on 4^th December 2001. Two men entered the shop in the early evening; one had his face covered by a blue woolly hat and the other was wearing a balaclava, holding a long barrelled shotgun. The two quickly removed the till and left. There was no CCTV footage. One shop owner provided a description of the men and their clothing and her husband gave evidence that one was white skinned because he removed his headgear whilst running away. He had the impression both were young. Their description of heights was variable. The two then fled in a small car. A hat bearing the logo "DC Shoe Co" was found in the shop. It was DNA tested and the DNA did not match any of the accused. It did show a link, which was not revealed to the jury, to the father of one the Defendants. There was evidence that Davies (and his brother) had clothing bearing such logo, as part ·of a motorcross sponsorship deal.
6. The second incident occurred at IO.30pm on 7th December 2001 at a petrol station in Windlesham. It was only an attempted robbery as the four men who entered the petrol station were held off by the shopkeeper throwing things at them. They fled empty handed. They were all dressed in black wearing masks and one carried a knife and the other three, small guns. A witness described all four males as being about 5ft 11 ins, another put them at 5ft Sins, with an impression that they were between IS and 25 years. An F registered Ford Orion was seen in the vicinity.
7. The third robbery was on 8th December in Wraysbury at about 7pm. There were four robbers in dark grey clothing, one waving a sword and the others, a witness thought, carrying bladed smaller weapons. The male with the sword was described as about 5ft 7ins, slim and 20; one appeared to have a slightly bent forward posture which was also how one of the Wendover Stores robbers had been described. The till was grabbed. The witness's son saw them leave in a car, like a Vauxhall Corsa, with an "S", "X" or "B" in the registration. They appeared all to be male and slim.
8. It is necessary to examine the fourth robbery on 13^th December 2001 in a little more detail. It occurred at the DSK Food Fare Store in Stanwell. There was a video. recording of the incident. At about 8pm a witness in the shop described four men rushing in shouting; one of whom was waving a knife. That person wore dark clothing and had a black balaclava. The other witness in the shop saw two people rush in wearing masks over their faces. Both said that the men took the till. The Judge, in summing up, referred to what the jury might" be able to see in the video~ noting that they might be able to see two black head coverings and perhaps a purple and black head covering. He pointed out a pair of trousers with stripes down the legs and that one of the persons might be wearing what appeared to be multi coloured gloves. It is plain from the stills that the CCTV provided coverage of the incident up to the moment when the men ran out of the shop carrying the till.
9. There was a delivery driver called Mr Skeates, who was driving past at the time. The Judge summed his evidence up to the jury saying that the shop was on Mr Skeates's left hand side as he passed "and he saw what he said were four Afro-Caribbean men leaving it, one carrying a cash till. One he said wore a jacket hood over his head, but the others nothing. He had no doubt that the men were black skinned. However, as a first consideration you will remember that the video has shown you the head coverings worn by more than one intruder. It is for you to decide whether it is all of them and you will have to decide whether you see a jacket hood as Mr Skeates describes at all. The prosecution suggest that what he saw were balaclavas which he assumed to be skin and you will have to assess that suggestion and reach your own conclusions. "
10. The Judge then referred to questions which he himself had asked of Mr Skeates, which showed that Mr Skeates had' described what he had seen through the vehicle windscreen and in artificial light. The Judge said that Mr Skeates had said that it had all happened quickly and unexpectedly. There had been some criticism of the Judge for asking those questions and before us for the weight which he appeared to give to the fact that observation had been through the vehicle windscreen in artificial light.
11. The Judge also commented in relation to a number of incidents that witnesses in the shops might not have had much time to note things accurately and said that the same comment applied to Mr Skeates; but having an good idea of the circumstances' of observation, they could decide whether placing Mr Skeates's evidence in context with the video and with the evidence of the witnesses inside the shop, he was a reliable ,witness. He pointed out that that was a matter for them. Criticism was made of that comment as well, because in respect of two other robberies the Judge had suggested that those who were not witnesses from inside the shops and were not, therefore, people who might have been in some fear about what was going on, might be more reliable than those who were inside the shop.
12. It is necessary to set out a little more of the evidence of Mr Skeates in the light of the ;submissions that were made about it. The particular importance of it was that if the DSK robbery were carried out by four black men or a gang which included two black men, not merely would that individual robbery fall outside the scope of the conspiracy alleged against the Defendants, but it could undermine the suggestion that there was a

conspiracy to rob at all involving these Defendants: because there would have been another group of people carrying out robberies, in the same area at the same time, bearing the allegedly distinctive hallmarks relied on here.

13. ,In Mr Skeates' s witness statement, which was read by the prosecution at the first largely abortive trial, he said that he saw "four black males no older than 21 come running out of the shop. One of the males had a cash till under his arm ... The' males were no more than a few feet away, although it was dark ... The Ford Orion was old, I think it may have been a B registration." (Mr Skeates described one of the males putting the till in the boot of an old red Ford Orion).
14. It became obvious that the evidence of Mr Skeates did not tally with other evidence in relation to the DSK robbery and at the second trial the prosecution simply tendered Mr Skeates for cross-examination by the Defendants. He gave evidence in line with' his statement saying that he saw four Afro Caribbean people running out of the shop going towards the red Orion with one of them with a cash machine under his arm. He had first seen them when they were coming out of the store. He believed that all four were Afro Caribbean. He said they had dark skin and black hair but he only saw the side view of the people coming out of the shop. One he remembered was wearing a light blue anorak type hood over his head and a jacket that was a hooded jacket. It obscured the face but he knew that they were dark. He said that none of them were' wearing anything on their heads or faces and that there was nothing to obscure the facial area so far as he could recall. He had no' difficulty seeing them· and they were about between 18ft and 20ft away when he saw them. They were running out and he was driving towards them. He confirmed that he had no doubt but that the three who were wearing nothing on their heads were black. He said visibility was good because there were shop lights spilling out on to the pavement and he had his headlights on as well. He denied that he had seen four white men who. wore black woolly balaclavas. He insisted that he had seen four black men. He said there was nothing to obstruct his visibility. He noticed no white areas on their faces ..
15. He also said however that as he saw them coming out of the shop, going. to the Orion, he could not recall seeing any of them taking anything off their heads or faces. All he could remember was the driver fumbling for the keys. When asked again whether he had any recollection of any of them taking an item or something off their head or faces, he said that he could not recall that, it happened so' quickly. He said that he had a side view of the person with the blue anorak top but his answer is unclear as to how much he saw of the others: because when asked about whether he had a side view of the people and thus four side views, he said he just remembered the person with the blue anorak top and having a 'side view of him. In answer to the Judge he said that he saw them at an angle through the windscreen and he saw them running out from the shop halfway across the pavement to the car.
16. We add at this stage that it is perfectly clear that the witnesses in the shop described masks or balaclavas and the video stills show at least three masks or balaclavas and there is no video footage which is said to suggest that the balaclavas or masks had been removed before the men left the shop. This means that they would have had to remove them, if Mr Skeates is correct in describing black skin, . after they had left the shop. Yet Mr Skeates described no movement of hands to remove head covering, nor seeing any head covering in the hands of any of the robbers.
17. We turn to the fifth robbery which took place on 15^th December 2001, just two days later at a wine shop in Egham. There was no video recording of this robbery. It was 9.30pm when three men wearing balaclavas and gloves came into the shop and one approached the shopkeeper waving a knife. He was thought to be about 5ft. 8ins and white. The knife was about a foot long. The' other two were up to 6 feet tall but had nothing in their hands. They grabbed the till and left in a white transit van. The witnesses' impression was that they were all male and in their late teens or early 20s.
18. The sixth robbery was on 16^th December 2001 in' Burfield. There was a video recording. The incident occurred at 9pm and the witnesses described four or five men entering all wearing black masks. One witness said that one of them was carrying a handgun. He was described as white with blue eyes, thin, wearing a black top or jeans and a white long sleeved top with a half zip. His accent was associated by the witness with a gypsy or Irish accent. They left in a van after snatching the till. The Judge pointed out that the video showed that no one was wearing a white zipped top, though one had a light coloured head covering and there might be track suit bottoms with a side stripe visible. The description of the white zipped top was used by the Judge to illustrate the fallibility of human recollection.
19. The seventh incident occurred on 19^th December 200 I in Bracknell. There was a video recording. At 9.30pm two men entered the off licence, with two or three others behind them. One of the first two was said· to have held two firearms arid the other held one firearm. They grabbed the till and left. The witness described the men as wearing balaclavas, gloves and dark clothes. He said they were white, seemingly between 19 and 23 and between about 5ft 7ins and 5ft 9ins. The Judge pointed out that there did not appear to be a man holding two weapons when the video was examined but there was one person in an open balaclava holding a gun and wearing trousers with stripes down the side. He asked the jury to consider whether there were multi coloured gloves and a purple and black mask visible. There was facial mapping of the robber in the open balaclava comparing the profile with that of the Defendant Chesterman. It was from this robbery that the men left in the Subaru Impreza which had been stolen from a Mrs Etherington that same day.
20. The eighth robbery was on 22^0d December 2001 in Weybridge store. At about 7.20pm a man entered the shop with a pistol in his hand. The shopkeeper thought he was white because he could see skin below the black balaclava. He thought the robber was wearing woolly gloves and was about 5ft 5ins. The first robber was followed by a second larger man of about 5ft 9ins wearing a balaclava. They took the till and left in a white van like an Astra. A witness' outside who hid behind a tree, of whom the Judge said that her descriptions might be more accurate because she was not the target of the robbery, a point which was said to contrast with the way Mr Skeates' evidence was approached, said that she had seen a small white van which two males got into after throwing something inside it. She thought that they were slim, between 5ft 6ins and 5ft 7ins, in their mid twenties and wearing dark coloured hats which were pulled down over their mouths, with holes in them for eyes and nose. The Judge pointed out that it might be noteworthy that she saw hats pulled down worn as masks with holes for. eyes and nose, when they came to review the laboratory evidence. She saw them wearing dark jackets and gloves.
21. The ninth robbery involved a store in Sunbury. On New Year's Eve 2001 at about 7.30pm the shopkeeper described three white men wearing hoods with eyeholes entering the shop. One pushed her husband to the floor and another came to the counter. She described him as 5ft 2ins or 5ft 4ins, skinny, wearing a black hood, dark plain jumper and black gloves. He carried a small gun, and demanded cash, grabbing the till; they left with it and some beer. The one who grabbed the beer was slim, about 6ft, wearing a blue and white check shirt, gloves, a black hood with a baseball cap worn on the top of it and carrying a large brown wooden handled knife with a shiny blade. The third man was between the others in height, wearing a black hood, dark jumper and gloves.
22. The tenth robbery was on 9^th January 2002 at Englefield Green. At 7.50pm someone wearing a black balaclava and dark clothes rushed into the shop followed by at least two others and a fourth who held the door open. The shopkeeper described them as between 18 and 25, slim and white. They wore gloves and dark clothes. They grabbed the till and left. Her husband described four or five youths all wearing dark clothing and hooded tops. The one who came over to him had a six inch bladed black handled knife which he waved at him. He described the youths as between 18 and 25, slim and all about the same height and build. They left in a dark coloured saloon car.
23. The eleventh robbery was at Budgen's Stores in Sunbury on 30^th January 2002. There was video footage. At about 9.30pm one of the staff saw a man wearing a white coloured mask approaching who told him to get to the floor. The man pulled the cash drawer out of the till and left. He was described as 5ft l1ihs, well built.· This witness glimpsed three others wearing masks. His colleague described being confronted by three masked men. One said that it was an armed robbery. One was described as 6ft, medium build, muscular, wearing what looked like a white ski mask. He took the till drawer and she saw a silver car drive away with them. All she could say of the others was that they wore masks, one with a scary face, one with a smiley face and· she thought one had a black balaclava and spectacles.
24. A witness outside the shop saw people leave in a dark green BMW. The Judge said that he, like the lady behind the tree, might not have been caught up in the emotion of the robbery. The Judge then read out the description which that witness had given in his statement. This described one man as white, about 6ft tall with bleached blonde hair when he took his balaclava off, of slim build, clean-shaven and wearing a white balaclava. In hindsight he was not sure whether it was hair or part of the balaclava which he had seen. This robber was wearing light blue jeans and it was thought white trainers, a light coloured top, and the witness thought he had glasses. Another male was similarly dressed, but the witness could not tell whether he was black or white' because of the balaclava; he appeared to be smaller, about 5ft 8ins to 5ft 9ins. A third was wearing a balaclava .. The driver did not wear anything on his head. He was definitely not Afro Caribbean but may have been white or Asian. The Judge pointed out that he did not describe the use of character masks, which it was clear there were.· He directed the jury to consider whether a purple hood was visible on the video footage along with multicoloured gloves.
25. The last robbery took place in Shepperton on 3^rd February 2002. There is video footage. Shortly before 10pm three men entered the shop all wearing masks, one of whom held a 9in or 10in knife which looked like a kitchen knife. Once was about 5ft. 6ins or 5ft 7ins wearing dark trousers and a film star mask with black hair. The shopkeeper could see that the man had a white neck. The second wore a black balaclava and was between 5ft 8ins and 5ft 10ins. The third wore some form of cartoon mask and a creamy top. They snatched the till. There was a witness who described the robbers in similar terms. The video footage was said t9 include the potential for a light coloured mask, a full face mask, a purple hood and the possibility of multi coloured gloves. The Judge pointed out that there was no beige top visible, as had been described by the two witnesses.
26. There were also two incidents in which cars were stolen from women drivers, alone in them at the time. On 19^th December 2001 Mrs Etherington's Subaru Impreza was stolen; it was used in the robbery in Bracknell later that night. On 22^nd April 2002 it was recovered from the car park at BruneI University (Smith in fact was a student at that university) bearing false number plates. On 6^th January 2002 an Audi was stolen from its female owner and driver, Mrs Henderson-Clelland. It was not used in a robbery. There was no evidence that any of the Defendants had stolen either of the two cars. Later the Judge described the stealing as involving brazen attacks on lone women. There was an issue as to whether or· not the Judge should have allowed in evidence about the manner in which the vehicles were stolen and whether or not he should have commented on that manner in the way in which he did. Each of the robberies could be described colloquially as "car jacking". This was said to be of some importance because the Judge had directed that the indictment be amended so as to delete the robbery of cars from the criminal aims of the conspiracy. It became only a conspiracy to rob shops ..
27. It is necessary now to turn to the evidence which it was said linked the individual· Defendants to that conspiracy. The investigation by the police into the Defendants' involvement with those robberies began on 12^th February 2002. On that day the police chased the stolen Cherokee jeep for the second time. They had chased it the week previously but it had evaded them. on this occasion, the occupants fled but Dove and Hayward were later to plead guilty to stealing this vehicle. The Defendant, Chesterman, was later to accept that he had been in the jeep during the police chase, had run from it when it came to a halt and had been found in the vicinity. But there was evidence that others had been in it during the chase. The jeep contained what has been described as a "robbers kit". Some of the items, such as a metal pole, replica firearms, a knife with a 9" blade, a green and black face mask and a blue sports bag containing three multi coloured gloves, revealed no forensic evidence to show contact with the Defendants, but there were other items which did so. We shall deal with those when dealing with the other factors which were relied on as linking· the individual Defendants to the conspiracy.
28. It was accepted and indeed asserted by the Defendants that they all knew each other and that to a greater or lesser degree they were all involved in the sport of motorcross. There were also telephone records which demonstrated that the Defendants were in frequent contact with each other. The prosecution put some weight upon the telephone schedules both as showing the pattern of contact in the run up to each robbery and in its aftermath, and also in showing that there was no telephone contact between the Defendants at the time of a robbery .. The Judge pointed out that the timings of the robberies might be estimates which could affect the inferences to be drawn from the schedules and pointed out as well that the records were only of outgoing calls from each phone as opposed to incoming calls. However, no records were produced by the Defendants to show that a different picture could be seen. Thus, for example, the day of the first robbery at Wendover Stores on 4^th December 2001 showed a high volume of calls between three Defendants, in the hours before the robbery, no calls around the time of the robbery and then the calls resuming some 40 minutes afterwards. A similar pattern over a longer build up period was evident from the .Windlesham Petrol Station robbery on 7^th December. It is unnecessary to go through them all because the pattern on the prosecution case was plain: a high level of contact between the Defendants during the period of the day or days running up to the robbery, followed by no contact around the time of the robbery and for a while either side of it and then a resumption of calls. There was a drop off in calls between the 22^nd December and 29^th December but they resumed as from the 29^th December. There were no calls at the time of the pursuit on 12^th February of the Cherokee jeep. Hayward did not feature very much in these phone calls except around the time of the theft of the Cherokee. There was a spate of calls after Chesterman's arrest on the 12th February 2002. Contact continued for the next few days but thereafter was at a much reduced level. The Judge rightly pointed out that, although the Defendants might be accustomed to make frequent contact with each other, it was evident that no such contact had taken place around the time of the robberies, assuming that the estimates as to their timing were accurate, and we would add even approximately accurate, as to their timing.
29. The links between Dove and the conspiracy, relied on by the prosecution, start with the possession and use of the Cherokee jeep which Hayward stole on 5^th February 2002, which Dove was seen driving alone. on 7th February with false number plates, . and which on 12th February was chased by police and abandoned with the robbers' kit in and around it. Dove said he had abandoned it on the 7^th February and had not' noticed that by then it was bearing false number plates now that the true ones were still inside the vehicle where they were found on the 12^th February. The Judge pointed to the problems in the way of Dove's explanation as to why he stole the jeep, which was no explanation at all, or as to how if it were abandoned on the 7^th February 2002 as he said, there was found in it a black hat with Dove's full DNA on it, if the jury concluded that that hat was indeed bearing Dove's DNA and had been found in the vehicle.
30. The second item linking Dove to the conspiracy was a black hat bearing the "Urban" logo seized from the interior of the Cherokee jeep. It had holes cut out for eyeholes so that if the hat was pulled down it could be worn as a mask. The DNA profile on it matched Dove and also indicated the presence of two other unidentified persons. The DNA was taken from the front inside surface where nose and mouth would have been if the hat had been worn as a mask. However, there was no suggestion in any of the evidence about the robberies that a hat bearing the "Urban" logo had been worn during them.
31. There were also other issues as to the relevance of this hat. The first issue which the· jury had to consider was the reliability of the Scenes of Crimes Officer who said that he had found the hat on the 13^th February 2002 on the floor in the centre of the jeep. Although the "Urban" logo was not now visible because it had been cut out and destroyed by the DNA testing, the SOCO gave evidence that he remembered seeing the word "Urban" on the hat, and relied upon his original notes. There may have been some errors in his records but he said that he did not record something he had not found or misrecord what he did find,
32. There was then an issue as to whether Dove's DNA could have got on to the hat by contamination from other exhibits. This could. not have happened according to the laboratory technician because there was no other item received at the laboratory which contained Dove's DNA, although it was accepted that it is possible for DNA to be transferred from one item to another. Necessarily this would have had to occur whilst the hat was in the possession of the police, if it were to have happened at all.
33. It was also suggested by the defence that the laboratory procedures for recording the items examined were so lax that it was not possible to say that the item which it tested and which revealed Dove's DNA was either whatever exhibit was labelled NN58/6 or the Urban hat found in the jeep.
34. It was agreed that two explanatory statements provided by technicians or assistants were written by another officer in the laboratory; it was admitted by the laboratory officer Miss Reed that there had been errors in the way exhibits were checked, but she said that the hat matched the description on the exhibit label.
35. The issue for the jury was therefore whether the "Urban" hat was found where the SOCO said he found it and whether it was that hat which contained the DNA of Dove. There was criticism of the. Judge's suggestion that the defence case required a '. conspiracy between the SOCQ, the officer' in the. case and a range of laboratory officials', because it was said that that. set too high a threshold for the jury in order for them to have doubts about the continuity of the evidence. Rather, it was suggested that there was laboratory inefficiency . and misidentification, which at least the laboratory technicians might have then wanted to cover up.
36. The Judge pointed out that Dove's evidence was that he was not aware that he had ever worn the hat, did not recognise it and offered no explanation as to how his DNA might have appeared upon it, if it was on it. The "Urban" hat of course assumes greater significance when it is connected with the jeep and the other equipment found in the jeep as evidence of links between Dove and the conspiracy.
37. The third link was created by the stolen Subaru which was used as the getaway car in the robbery in Bracknell on 19^th December 2001, four hours after it had been stolen . . We have already noted the issue as to the relevance of the manner in which this car was' stolen for the case against any of the Defendants. However, when Dove's home was searched on 5^th March 2002, a pair of gloves were found. These were examined by Mrs Etherington who owned the Subaru and by her husband. Their evidence was that they were identical to a pair owned by him, which she had had in the boot of her car. The evidence was also to the effect that the gloves fitted Mr Etherington and that there were areas of discolouration which he recalled from using them whilst snow boarding, which led him to conclude that they were his gloves, which had been in the boot of the stolen Subaru. Dove's explanation was that they could have been left by a visitor in his house without his knowledge.
38. The fourth link related to the Audi car, the manner of stealing which was subject to the same comment by the Judge and objection by Counsel for the Defendants. Three days after it was stolen and now bearing false number plates, it was seen doing a hand brake turn at speed driven by a young white male; who was described by the police officer who saw him. Then it was seen together in a car park with a blue Vauxhall, where it was abandoned. The driver of the Audi met someone in the blue Vauxhall, which was available for use by Chesterman, and left with, someone whom the Crown said was Chesterman, in the Vauxhall.
39. Both Chesterman and Dove denied that they were the people seen on that occasion by the officer. However, Dove's fingerprints were found on the driver's mirror of the Audi and on the outside of the driver's door. Dove denied any specific knowledge of . every having been in the car but said that he would often get into the cars of his friends. In the Audi, at the time when it was stolen, was a Nike blue sports bag, which was of itself not a particularly remarkable or unusual item. But it was of the same make and size as the one found near the abandoned jeep.
40. The fifth link involved a replica Beretta pistol found in the .search on 5^th March 2002 of Dove's bedroom. It was found when a chest was moved, on the floor against the wall. It does not appear that anything was made of the location in terms of suggesting deliberate concealment. The Beretta was a gas powered air pistol with no ammunition. Its relevance was that guns had been seen in the hands of the robber and also that replica firearms were found near the abandoned Cherokee jeep. It was accepted that it had not been used in any of the robberies: because Dove said that he borrowed it from Hayward for target practice and Hayward had (as it was accepted) only bought it on 15^th January 2002 and there was no evidence in relation to any of. the robberies after that date of the use of a firearm.
41. The Judge said of Dove's explanation that, if it had been borrowed for target practice, it would not have' been of much use' for that purpose because there was no ammunition. Dove said he assumed that it had been loaded; when he found out that it was not he had just forgotten about it rather than returning it. It was put forward by the prosecution as part of the evidential picture. It was submitted on behalf of Dove to the Judge and to us that the Judge ought not to have admitted evidence of the finding of this gun. The Judge also directed the jury in relation to the absence of answers by Dove to questions in interview about his possession of the gun. He directed them that Dove had not mentioned in interview how he had come to have the Beretta pistol in his room .. The Judge said that that failure could count against him, because the jury could conclude that he did not mention those circumstances because he had no answer as to how he had come by it which he believed would stand up to scrutiny, and that he had since tailored his account to meet the prosecution's case. If that was so, then they could draw an adverse inference from it which supported the prosecution case. But they could only do so if he could reasonably have been expected to mention his explanation and that the only sensible reason for his failing to do so was that he had no worthwhile explanation for facts which called clearly for an. answer. Dove said that he did not answer those questions on the advice of his solicitors and the Judge directed the jury as to the significance of that. It would not prevent an adverse conclusion being drawn if the Defendant had merely latched on to the legal advice as a shield behind which to hide, when he had no answer to the point. On behalf of Dove it was pointed out that the questions about the Beretta had only come at the end of an interview at which it had been accepted that it was not being said the gun had been used in any of the robberies. Submissions were made to us on his behalf that the Judge's directions under Section 34 were inadequate.
42. The first link relied on by the Crown as connecting Davies to the conspiracy was that items of property from the stolen Subaru, used in the Bracknell robbery, were found in Davies' bedroom and elsewhere in the house when he was arrested on 5^th March 2005. These items were swimwear, prescription glasses from Calvin Klein, a box of goggles and perhaps Oakley sunglasses which Mrs Etherington, the car owner, could say came from her car when it was stolen. Also found at the house were a set of Subaru keys, an alarm fob and immobiliser, identical to the owner's spare set. Davies' explanation for that was that he had bought them all in a job lot from Hayward.
43. The Subaru was recovered from BruneI University car park near Staines on 22^nd April 2002 bearing false number plates. The false number plates related to a red Subaru Impreza, owned by a man called Gifford who ran a motorcycle shop in Staines near where Davies lived. Gifford had bought his Subaru on 21^8t December 2001 and although it was parked behind the shop regularly, it would have been visible from the main road and the front of the shop. It was suggested by the Crown that because Davies had bought a number plate for a motorbike at that shop on 29^th December 2001, he might also have got the false number plate from Gifford's red Subaru to put on the stolen Subaru on that date. The Judge at the request of Davies' counsel reminded the jury that there would have been others than Davies who would have had knowledge of Gifford's red Subaru because it was visible to all those who went to the shop.
44. The second link was a purple and black hood which was found inside the abandoned Cherokee jeep on 12^th February 2002. This was a homemade hood which carried a full DNA profile for Davies and an indication of the presence of the DNA of two other people. There was evidence that a purple and black hood was worn by a robber in the robberies of 13^th December 2001, the DSK Londis robbery, on 19^th December 2001 at Unwins in Bracknell in which the Subaru was used as a getaway vehicle, and in the 30^th January 2001 and 3^rd February 2002 robberies. Davies could offer no explanation as to how his DNA had got on to this hood because he said he had never seen it anywhere before and it was not something he would have worn for motorcross purposes. However,. it was suggested that there was the possibility of other adults or his adolescent brothers being around in the house which could account for the DNA on the hood.
45. Third, the prosecution relied on a Nike hat found in the abandoned jeep which had two eyeholes cut out so that it could have been worn as a mask, and which carried mixed and less than full matching DNA profiles of Davies and Chesterman. The staining was in the area of where the mouth and nose would have been, had the hat been worn as a mask. However, the Judge directed the jury in the light of the evidence given by the DNA expert that, although it was a matter for them, the' circumstances which she described about the way in which property was exchanged and the number of Davies' brothers who could have contributed to that profile such as it was, meant that they might not want to rely upon the evidence of the mixed analysis of that hat so far as Davies was concerned; it would be better to focus on other evidence.
46. The fourth link was created by the failure of Davies to answer questions at interview about some of the items from the Subaru at his home. He, like Dove, was given a special warning. His explanation at trial for having given a no comment interview was . .reliance on his solicitor's advice. The Judge directed them appropriately as to the circumstances in which they could draw an adverse inference from that.
47. It is not necessary to go through the links between Chesterman and the conspiracy because Chesterman does not now seek to pursue an appeal against conviction. There was plainly a strong case against Chesterman.
48. It is however necessary to say a little about the evidence against Dyer, who was acquitted. First, there was a mask, called the "Elvis" mask, which was found near the stolen jeep and from the inside surface of which, where the mouth and nose would be, Dyer's DNA was recovered. This was a mask which it was said could be seen in the videos of two robberies. Dyer accepted that he had such a mask bought for a fancy dress party some time before, but he had never worn it and it had been stolen, shortly after he bought it, from a van in which other people used to travel. The DNA may have got on it when he tried it on in the shop when he bought it.
49. Motorcross type gloves were recovered in a search of Dyer's home. An orange and a green glove were found at Dyer's home and a matching orange and green glove were found near the jeep. Put together, the orange gloves made a pair and so did the green gloves. There were no DNA profiles recovered from those gloves. There was evidence that it was quite common for motorcross riders to wear differently coloured gloves .. Dyer accepted that he had worn the unmatched pair of orange and green .gloves found at his home for motorcross purposes. It was not disputed that the ones' found near the jeep were the partners of those found at Dyer's house. Dyer said that he had given them to Davies in about November or December 2000 at a time when Dyer's girlfriend, Hayley Williams, was present with them at a practice racetrack operated by' one Jason Matthews who also provided changing facilities there .. Although the Judge had not referred to these items when summing up the' prosecution case against Davies, he reminded the jury, when dealing with Dyer's defence, that if what Dyer had said was correct, that odd pair of gloves might, instead of implicating Dyer, implicate Davies. He warned the jury that they should consider carefully, when deciding whether they could believe what Dyer said about them, whether he had any motive for seeking to throw the spotlight of potentially incriminating evidence away from himself and on to a co-defendant, rather than himself being concerned with speaking the truth.
50. Davis had acknowledged that it was common practice to borrow clothing from fellow riders in motorcross circles but he had no recollection of being lent those gloves by Dyer. Jason Mathews' facilities enabled motorcross riders to change before training at his practice circuit and it had been suggested by Davies that the mixed orange and green pair~ of gloves could have come from a bag in that changing facility, into which people might casually deposit items which they had finished using. Others would often pick from it what they might need for training on any particular occasion. Davies had said that he would never have asked for gloves of that sort after he had finished practising (which is what Dyer had contended), because Davies was contracted to wear a particular brand of gloves when racing.
51. Dyer's girlfriend, Hayley Williams, gave evidence that she recollected an occasion in November or December 2001 when Davies had asked Dyer if he could borrow some gloves. She saw Dyer had some gloves in his hands when he left her to approach Davies. Cross-examined by Counsel for Davies she said that she could not be sure what gloves were handed over and did not recall seeing Dyer with orange and green gloves before. In re-examination she said that the gloves which Dyer had handed over were indeed orange and green, which would of course match with the odd pair which Dyer said he gave to Davies. The Judge said "only you members of the jury, can decide whether you found the evidence of that witness reliable".
52. The Judge's reservations, intimated to the jury, about the evidence given by Dyer and Williams as to the lending of the orange and green gloves to Davies, turned out to be well founded. Sometime after the trial and following a fresh evidence application made on behalf of Davies, signed statements were served on the Crown from three witnesses to the effect that Hayley Williams had given perjured evidence at the trial on behalf of Dyer in respect of the odd gloves. On 12th April 2002 she was interviewed on tape by police in respect of those allegations. She admitted lying at trial about them. She said she did so at the behest of Dyer. It was accepted by the Crown that her admissions as to that were true and that the evidence, which' she had given at trial in relation to the gloves to assist Dyer, and which could be damaging to Davies, was untrue. It was submitted however by the prosecution that the effect of that evidence did not render Davies' conviction unsafe.
53. That was not the end of the issues on the appeal involving Dyer because over the weekend of 19^th and 20^th July 2003, between the closing of the cases for the Defendants and the start of closing speeches, Dyer was arrested, interviewed and charged with an offence of conspiracy to rob. The allegation against him was that on 18^th July 2003 (when the Court was not sitting) in the vicinity of Brooklands Trading Estate in Sunbury, Dyer had been arrested with' three others after what was alleged to bean abortive attempt at stealing mobile telephones from a' warehouse. Dyer was . appearing with those accused with him in that case at the Magistrates' Court on the' Monday. The Crown informed the Co-Defendants in this trial and obtained what information it could. One of those with whom Dyer was arrested was Mathews who had been named in the trial as we have described but had not featured significantly.
54. Counsel for the four other Defendants at this trial submitted that this arrest of Dyer should be placed before the jury, together with the interview he had given to police after arrest in which he had apparently made partial admissions. Dyer's Counsel resisted that, contending that it was inadmissible; he also submitted that if evidence of the arrest, its circumstances and the interview were admitted, the jury should be discharged.
55. The judge ruled that there was no similarity in this most recent incident to the matters being tried in the way in which the alleged offence had been committed' and he confessed to some surprise at the readiness of Counsel to assume the truth of untested and unproved allegations for the purpose of their present arguments. It would have' been the contention for the four Defendants other than Dyer that the arrest of Mathews with Dyer would provide them with an opportunity to suggest some possible involvement by Mathews with Dyer at the time when the shop robberies in question were being carried out. Even assuming that the allegations were all true, it was not known, pointed out the Judge, that Dyer would adhere to his responses in interview unless that issue were examined and that would not be appropriate in the current trial in advance of any trial for that later offence. Even overlooking the late stage of the trial at which this information had emerged and assuming that it would be technically possible to admit it, the Judge said that "to admit untested and unproved allegations involving one Defendant in order to provide Counsel for the other Defendants with a hook upon which to hang all sorts of speculative suggestions, is not a proper course to follow in a criminal trial". He concluded that no defendant's case would be advanced by' knowing that Dyer had been arrested for a robbery 17 months after those with which they were concerned and with persons who had not featured in the trial to any significant degree. Any such assistance would require the jury to assume that one or other of Dyer or Mathews were somehow disposed to participate in armed robbery 17 months ago, which the Judge said simply was not a tenable conclusion on the facts as they now presented themselves. The new information could not assist Counsel for the Defendants in the inferences, which they would be asking the jury to draw from the circumstantial evidence, provide ..
56. Subsequently, Dyer and the three co-accused with him in respect of this alleged attempted robbery, were all acquitted. Dyer pleaded guilty to attempted theft. The Defendants' contention at that trial was that they believed that they were trying to steal mobile phones with the assistance and connivance of warehouse employees. The employee against whom violence was used was thought by those charged with attempted robbery to have been in on the plot. The main prosecution witness appears to have given wholly unsatisfactory evidence about his involvement in the attempted theft.
57. It was suggested before us that the evidence of Dyer's involvement in that incident was the more relevant to his alleged involvement in the robberies, the subject of this appeal, because when arrested for the later offence, he had tucked into his trousers, a' hat bearing the logo "DC Shoes" .. A "DC Shoes" hat, as we have already mentioned, was left behind by a robber at the Wendover robbery. DC Shoes is a company which manufactures' sporting clothing habitually worn by motorcross. riders. There was . evidence that "DC Shoes" clothing had been found at Davies' address and, as we have already mentioned, that he and his brother had a contract to wear that brand when racing. The Judge had referred to this and the way in which they might share clothing, when dealing with the DNA profile evidence in relation to the Nike hat. We were also told that the DNA on the Wendover "DC Shoes" had shown a match to the father of one of the Defendants. That was known to the Judge when he summed up the evidence in relation to the Wendover robbery but not to the jury.
58. It was said in this appeal that the fact that Dyer had been found with a DC shoes hat when arrested had not been disclosed by the prosecution when it disclosed to the Defendants that Dyer had been arrested for attempted robbery and had had at the time a balaclava, a woollen hat and gloves. The Crown told us that the arrest had. been carried out by Metropolitan Police from Finchley who were unaware of the possible significance of a DC Shoes hat, and that information had not been available to the Crown when it disclosed what it knew about Dyer's arrest.
59. Against that background we turn to the grounds advanced on behalf of Davies and Dove respectively in support of their contentions that their convictions are unsafe. Mr Eaton, on behalf of Davies, was the first to present his arguments to us. However he and Mr Pardoe, on behalf of Dove, made common cause on a number of points.
60. The first was that relating to the arrest of Dyer on 18^th July 2003. This incident, as we have noted, arose very late in the· trial - after all the evidence had concluded and counsel were due to make their closing speeches. (In fact, an ex parte application was made by Mr Wood, counsel for the Crown, on the morning of Monday 21^st July 2003 , which he assured us had no bearing on the outcome of the present point.) What was submitted on behalf of Davies was that the fact (as it was asserted to be) that Dyer was implicated in this latest robbery made it all the more explicable that Davies' DNA might be found in connection with the "robbers' kit", given that Dyer- and Matthews, one of the co-accused at the alleged robbery - was a close associate and the evidence that motorcross clothing was frequently shared. A similar submission was made on behalf of Dove. Moreover, Davies had, it was said, an interest in undermining Dyer's credibility, given that Dyer was now stating that he had loaned to Davies the pair of . gloves found in the Cherokee Jeep - the latest incident of alleged robbery could thus, it was said, be used to undermine Dyer's credibility. On behalf of both Davies and Dove, it was submitted that it was significant that Dyer had been arrested, in an area geographically similar to the robberies which had featured in the current trial, in the company of three others, none of whom were co-defendants at this trial: this, it was said, undermining the prosecution case of one cohesive group of which these defendants were allegedly. part being behind all these robberies the subject of the· indictment. Moreover, Dyer when arrested at the latest incident, as the prosecution notified the defence on that morning of 21^st July 2003, had been in possession of a balaclava, woollen hat and gloves: and also in fact (although not known to the prosecution, and thus not known to the Judge, at the time) the hat had a "DC shoes" logo on it - the same logo as on the hat left behind at the Wendover Stores robbery. Various other points to this effect were raised. We add that we are entirely satisfied that additional complaints that the Crown had failed to disclose to the defence relevant points on the morning· of the 21^st July 2005 are misplaced. The Crown properly notified to the Defence the gist of what the Crown itself at that time knew.
61. We are in no doubt that the Judge was justified in rejecting this application as he did, and also in rejecting an application to adjourn for further evidence relating to the latest arrest (e.g. as to DNA) to be sought. By this time, the case for the Defendants at trial had closed. If they were to be permitted to reopen their cases - and of course Dyer himself could hardly be expected to give evidence to explain himself on this at this stage - and to seek to have further evidence called that could only be by leave of the Judge, in his discretion. The Judge had to bear in' q1ind difficulties for the Jury in any consequential delay, having regard to the stage the trial had reached .. He also had to have regard to the interests of the Crown and of the administration of justice generally, as well as of all the Defendants (including the co-accused). If he acceded to the request, it doubtless would at the least have necessitated the discharge of the jury so far as Dyer was concerned, and possibly altogether. But the principal point on which the Judge focussed was the fact that what was alleged against Dyer in respect of the 18^th July 2003 arrest was just that - allegation. As the Judge noted, what had happened on the 18^th July 2003 - itself an event occurring many months after the subject robberies and having a number of different features - was "untested and unproved" - indeed not even known' in full to the prosecution. The Judge was justified in describing this as a "hook upon which to hang all sorts of speculative suggestions". We think that was a legitimate approach and we think that the Judge was justified in refusing to allow these defendants to adduce, at that stage, evidence relating to this recent arrest of Dyer.
62. Mr Eaton then suggested in his written Grounds that in places, the Judge's summing up was insufficient -in particular with regard to the connection asserted between Davies and Mr Gifford and thence (as the prosecution had suggested) to the Subaru. In particular he submitted that the Judge had failed to highlight the fact that at least one other of the co-accused - Smith - had a particular connection with Mr Gifford. In our view, there is nothing in that point: the directions on that were adequate.
63. It then was said, by both Mr Eaton and Mr Pardoe, that the Judge misdirected the Jury in telling them that the DC Shoes hat found at the scene of the Wendover Stores robbery, bearing a DNA profile which was not linked to any of the Defendants, was "as 'an exhibit something which may not help you a great deal in your deliberations " Mr Eaton's point, and Mr Pardoe's point, was that indeed it did not help the prosecution. But it did help the defence: since the DNA so found was not attributed to any of the Defendants. It is said that the Judge's comments downplayed the significant of this point so far as the defence were concerned - indeed Mr Pardoe submitted that it exemplified a want of judicial impartiality on the part of the Judge. Again, we do not agree. The Jury must have been well alive to the point (which would have been stressed in closing speeches) and the Judge in terms said of that exhibit that its significance was a matter for the Jury. As the Judge also pointed out to the Jury, the "DC Shoe" logo did feature elsewhere in the case.
64. Mr Eaton, again making common cause with Mr Pardoe, then submitted that the Judge had in his remarks in the summing-up undermined the evidence of Mr Skeates (which related to the DSK Food Fare robbery) with the effect that he thereby enhanced the prosecution position. Mr Skeates had identified the four robbers as _ being "definitely" black men- - which of Course did not fit with the prosecution case. It was said that the Judge unfairly downplayed Mr Skeates' evidence and in effect. sided with the prosecution on this aspect in his summing-up. Mr Pardoe was particularly critical of the way in which the Judge himself had asked questions about Mr Skeates' vision being through the vehicle windscreen; and he also said that the Judge's treatment of Mr Skeates' evidence contrasted sharply with his treatment elsewhere in the summing-up of the witnesses of two other robberies who had not been present inside the store concerned and who therefore on that ground might, the Judge had in terms suggested to the Jury, be particularly reliable. Mr Pardoe, indeed, submitted, using a cricketing analogy, that this was another example of a summing-up where the Judge had abandoned his role as an umpire, had put on pads and had then proceeded to bat for the prosecution.
65. We can accept that the Judge's treatment of Mr Skeates' evidence (by reference to his comments on the two witnesses of two other robberies who had been outside the store in question) was - in Mr Wood's phrase - " not ideal", But overall we can see no real complaint here. The Judge expressly told the jury that it was for them to assess the reliability of Mr Skeates' evidence. The Judge in terms in the summing-up drew attention to Mr Pardoes's own criticism (made in his closing speech) about the Judge's questions of Mr Skeates concerning visibility through the car windscreen. There was in fact an amount of evidence - including the CCTV evidence - to suggest that Mr Skeates had indeed been mistaken. The point was a Jury point, properly left for them to consider. In any event we can accept that for the defence to show that one of the robberies could not be attributable to the particular gang of which the defendants were alleged to be part, would help to undermine the prosecution case: but it overstates it to say, as Mr Pardoe at one stage did, that Mr Skeates' evidence (if accepted) drove a "coach and horses" through the prosecution case. In fact, the Judge in the course of his summing-up (p30E-3IA) had directed the Jury as follows:

"So from a review of the evidence of the robberies you first task should be to decide whether as a result of that consideration you are sure that a single conspiracy existed which the people who conducted these robberies were following. No one is suggesting that it was always the same people who attended on each robbery. It might, for example, be the case that there is a ·group of people from whom some attend on some robberies while others attend on others or they mix their attendances. It might also be that case that you regard it likely or possible that one or other of the robberies was not committed as part of a conspiracy by a given set of people, but what you should consider at this stage is whether the evidence makes you sure that a conspiracy existed. If you conclude that you are satisfied that a conspiracy existed, however many were the robberies upon which you base that conclusion and however many people may have been involved in it, then we will move on together to consider the extent to which the prosecution can prove that each of these defendants was involved in that conspiracy .... "

It was common ground before us that that was an appropriate direction.

66. The next point advanced by Mr Eaton - again, a point also advanced and amplified by Mr Pardoe on behalf of Dove - was as to the Judge's treatment of the evidence of the two lady owners relating to the theft of their cars. Mrs Etherington's Subaru was, as we have said, used as the get-away vehicle for a robbery (the Bracknell off-licence) within about four hours of the theft - and there was also evidence of items stolen ·from it found in the homes of Dove and Davies. The Audi car, belonging to Mrs Henderson-Clelland, was not directly linked to any robbery: the relevance was the Nike bag taken from it and a like Nike bag found in the Jeep (together with the fact that Dove's finger-prints were found on the Audi). At the first trial, the Judge had ruled that no conspiracy to rob could lie against these defendants in respect of the cars. It is therefore said that the Judge was wrong at this trial to allow evidence to be led by the prosecution as to the circumstances in which the two ladies were robbed of their cars - which amounted to very unpleasant "car jacking" - each incident, indeed, being described by the Judge in the summing-up as a "most brazen attack"
67. It was accepted that the theft of the cars had a relevance to the alleged conspiracy in the circumstances already explained. But it was submitted to the Judge, as it was to us, that the actual circumstances in which the robbery of the cars occurred were irrelevant and for the details to be placed before the Jury was unnecessary and could only be prejudicial.
68. We agree that this was close to the line. But on the whole we think that the Judge was entitled to take the view that this was necessary evidence, as being "part of the picture", as he put it. It is not to be forgotten that the robbery of the Subaru occurred just a few hours before the Bracknell robbery where it was used as a get-away vehicle: and as to prejudice, the Judge had expressly directed the Jury that they could not safely conclude that any of the defendants was one of the people attacking either of !he two ladies and had reminded them that no such allegation was made by the prosecution. Taken as a whole, therefore, we do not think there was any error or any unfairness in the position adopted by the Judge or any resultant doubt about the safety of the conviction.
69. The final ground advanced on behalf of Davies was the fresh evidence (which we gave leave should be admitted) concerning Hayley Williams. The Crown accepted that this showed that she had lied about observing the alleged incident of Dyer lending or giving Davies the pair of gloves. It is said on behalf of Davies that it was this evidence which potentially linked Davies to the pair of gloves found in the Cherokee Jeep with the "robbers' kit". Of course, that Hayley Williaf!1s lied about this did not mean Dyer's own evidence on this was necessarily false (the more so when the evidence generally was that there was a good deal of lending and borrowing of motorcross clothing and given that Davies' own evidence was simply that of not recollecting such lending); but obviously it had lent SUPP0rt to Dyer's evidence on this point.
70. We are not persuaded, applying the test laid down in Pendleton 2002 I Cr App Rep 34, that the conviction is rendered unsafe by reason of this (false) evidence of Hayley Williams adduced at the trial by Dyer. It is to be noted that at no stage during the trial had the Crown relied on her evidence as supporting the case against Davies: a position reflected in the Judge's summing up, which likewise made no reference to Hayley Williams' evidence in his summary of the Crown's case against Davies. Further, when the Judge did deal with her evidence (in summarising the case of Dyer) he did so with appropriate expressions of caution, referring to the possibility of Dyer being more concerned to protect . himself than speak the truth: and also referring to the inconsistencies in Hayley Williams' evidence· (for example, in saying in· cross-examination that she could not be sure what gloves were handed over) and expressly and pointedly inviting the jury to consider her reliability. (In the course of his written submissions on another point Mr Eaton had himself described Hayley Williams as "a very weak witness in the final analysis".) Moreover her evidence, although to an extent capable of undermining Davies' case on this aspect, has to be set in the context of the overall case against Davies: these included the fact that items from the stolen Subaru (the get-away vehicle for the Bracknell robbery of Unwins) were found at Davies' house, including a set of the Subaru keys; that the Subaru when found had false number plates which could be linked to a car belonging to Mr Gifford who had a motorcycle shop to which Davies had access; that a purple arid black hood (bearing Davies' full DNA profile, as well as DNA of others) was found in the abandoned Cherokee Jeep, and that there was evidence that a purple and black hood had been worn at a number of the robberies. Davies could give no real explanation for the finding of his DNA on such a hood - he accepted it was not something which he would wear (and therefore might share) for motorcross. There was also the fact that the Nike hat was found in the Jeep bearing the possible profile, in the mouth and nose region, of Davies and Chesterman; and there was Davies' failure to answer questions" in interview relating to items from the Subaru found at his house.
71. Considering the points advanced by Mr Eaton both individually and cumulatively we do not think that it can be said that the conviction of Davies was unsafe.
72. Mr Pardoe, on behalf of Dove, advanced a number of further grounds in support of Dove's appeal.
73. The first was in relation to the Beretta gun, found"· on the 5^th March 2002 behind the chest in Dove's room at his father's house. Mr Pardoes's point was that this had been acquired after 15^th January 2002 and consequently could never (as the prosecution accepted and formally admitted at trial) have been used in any of the robberies. Further, the kind of gun was different to the replica guns found with the "robber's kit" in the Cherokee Jeep. Consequently, it was said, the finding of the Beretta gun at Dove's house had no relevance to the issues the Jury had to decide: and the only effect of the Judge's ruling that such evidence be admitted was one of prejudice to Dove or as indicating propensity on his part: Mr Pardoe citing R v B 1997 2 Cr. App Rep 88. Further, if it was the case that the evidence relating to the Beretta gun should not have been admitted then, so it was submitted, the Judge was also wrong to give a s.34 direction to the Jury with regard to Dove's failure in interview to explain how and why he had acquired the gun. The fact that Dove gave no explanation in interview as to the Beretta could not of itself make evidence as to the Beretta relevant, if it were not otherwise relevant.
74. In our view, the Judge - who described the evidence as "part of the evidential picture relating to this Defendant" - was justified in ruling the evidence as to the Beretta relevant (and thereafter in declining to exclude such evidence under s.78). The fact was that replica guns had been used in previous robberies which were the subject of the one conspiracy alleged by the prosecution and to which Dove was alleged to be party~ and the Beretta came into Dove's" possession at a time when on the prosecution case the conspiracy continued and further robberies took place (albeit not involving the use of firearms.) It is the case also that replica guns were found with the robbers' kit, in the Cherokee Jeep. In such circumstances we consider that the Judge was justified in ruling as he did on the relevance of Dove being found in possession of the Beretta. It also follows that he was justified in giving a direction to the jury as to the inference they might draw in the light of Dove's failure" to answer questions in interview about the Beretta (in particular, as to why he had obtained the gun). The Judge was also entitled to point out to the jury in relation to Dove's explanation at trial that it had been borrowed for target practice, that it would not have been of much use for that purpose because there was no ammunition. As to that, Mr Pardoe also' complained that the Judge failed to give a sufficiently- full or tailored direction in this regard - in particular, that the gun's only relevance was to show that Dove was party to an agreement to commit robberies before 5^th March 2002. Mr Pardoe said that the fact that Dove had obtained the gun from Hayward after 15^th January 2002 was never in dispute, and so was not a matter requiring to be mentioned in interview; and the only relevance (if any) of such failure to answer was as to the purpose for which Dove had the gun. He complained that the Judge did not sufficiently make this distinction, or sufficiently explain to the Jury the potential (and limited) relevance of 'Dove' s failure to answer these questions: citing Re B (KJ) [2003] EWCA Crim 3080 (a case very different from the present, on the facts). But in our view the judge's direction was a full and proper one, and the jury could have been under no misapprehension ..
75. Mr Pardoes's next submission was that there was no sufficient evidential nexus between the robberies in respect of which the Crown had led evidence which would' enable a reasonable jury to conclude that there was a single conspiracy at all. He further said that the evidence was such that had the individual robberies been charged as substantive offences the counts would in most, if not all, cases have been bound to fail at the close of the prosecution case. The nature of the Crown's difficulties was, Mr Pardoe submitted, illustrated by the fact that the officer in the case had originally included in his list another robbery where the entire till had been taken: but then deleted it after successful prosecution of another person for that offence.
76. The fact is that the prosecution accepted that it could not prove the presence of a particular accused at each of the robberies. The Judge himself drew attention to that, commenting [p 13 of the summing-up) that it made the prosecution. task "more difficult" .
77. In our view, the similarities between the robberies, taken in conjunction with the other evidence in the case, nevertheless amply made out a case on the count of conspiracy fit for a jury to consider. (Indeed Mr Pardoes's submission to us on this did' not fit very well with a statement made by him at a later stage of his oral argument that the Jury were always likely to convict at least some of the Defendants). The Judge thus was justified in rejecting a submission of no case at the end of the prosecution case; and thereafter he dealt with the point appropriately in the summing-up.
78. The other points advanced by Mr Pardoe were ones advanced also by Mr Eaton on behalf of Davies, and we have already' dealt with them. But Mr Pardoe did have one further ground. He complained that, with regard to the "Urban" hat - which was the one piece of forensic evidence against Dove as regards clothing - the Judge's summing -:up was unbalanced, one-sided and inaccurate. He said that, given the evidence that emerged concerning the errors and mistakes at the forensic science . laboratory, which we have rehearsed above, for the Judge to comment (p42G of summing-up) to the Jury that they "might be forgiven if you were left wondering after the time' that was spent on looking at this area exactly where the problem is" was unworthy. He also said that it was unfair to categorise the defence complaint as one of "conspiracy" on behalf of the forensic laboratory technicians. The Judge also, it was said, was unduly and wrongly dismissive of the possibility of contamination whilst the clothing was in police hands.
79. There were two main issues here, so far as Dove was concerned. First, was the "Urban" hat found by Mr Mitchell in the Jeep, as he said, and' if so was that the exhibit examined by the forensic science laboratory? Second, if it was, could there have been accidental contamination? In our view the Judge's treatment of this in the summing-up at pages 40-44 was detailed and thorough. The issues were identified to the Jury and left to them to decide. The evidence on those. points was properly summarised; and the Judge's comments on those issues did not go beyond what was properly open to him by way of comment.
80. As a further aspect of his complaint under this head, Mr Pardoe said that the Judge, when dealing with the evidence of the robberies, summed up the evidence of Miss Annette Williams, a witness of the Thameside Stores Robbery, as indicating that the perpetrators "were wearing dark co loured hats which were pulled down over their mouths with holes in them for eyes and nose" (p25E). Her evidence had been to the effect that the masks each had one hole, showing the eyes and nose. He thus submitted that the summing-up was inaccurate. However, we regard so exacting a degree of grammatical exactitude as urged by Mr Pardoe as wholly unreasonable in this context and the jury cannot possibly have been misled given the context in which the evidence was summarised. Further, to the extent that Mr Pardoe complains that the Judge's direction in using these words would have "clearly driven the jury along the road to conclude" that the item described by Miss Williams was the Urban logo hat (this had two eye-holes cut in it), that complaint is unsustainable: not least because the Judge had directed the Jury expressly (at p44A of the summing-up) that there was no evidence that any of the robbers had worn an "Urban" hat during the course of any . of the robberies of which the Crown had led evidence.
81. We have considered Mr Pardoe's points collectively, as well as individually, in assessing his complaint that the summing-up was one-sided and unfair, .and have reviewed the entire transcript of the summing-up more than once. In the judgment of . the Court, the case for and against the defence was properly put. The judge frequently drew attention to asserted weaknesses in aspects of the prosecution case. The summing-up was well marshalled. There is no substance in this complaint.
82. The case against Davies and Dove may have been circumstantial, as Mr Eaton and Mr Pardoe emphasised. But that is not necessarily a weakness and the reality is that there were a number of strands of evidence which, taken together, gave rise to a powerful case against each of them. In the judgment of this court the grounds advanced do not show that the conviction of either of them was unsafe.
83. These appeals against conviction are dismissed.