No: 03/368/D2 
Neutral Citation Number: [2005] EWCA Crim 904
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Tuesday, 12 April 2005
 
B E F O R E:

LORD JUSTICE AULD 

MR JUSTICE DAVID CLARKE 
 
MR JUSTICE CHRISTOPHER CLARKE 

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R E G I N A 

-v- 

LESLIE DAVIES
 
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MR PETER WILCOCK appeared on behalf of the APPELLANT
MR DAVID JACKSON appeared on behalf of the CROWN
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J U D G M E N T 

1.	LORD JUSTICE AULD:  On 2nd December 2002 the appellant, Leslie Davies, and John Jason Cleaver, having both pleaded guilty to driving a Ford Orion car taken without its owner's consent and to driving it whilst disqualified, were convicted before His Honour Judge Hodson and a jury in the Crown Court at Wolverhampton of robbery of the keys of a Subaru car.  Both were sentenced to eight years' imprisonment for the robbery and to concurrent sentences for the other offences.  
2.	Cleaver, against whom there had been a strong case on the robbery charge and who had attempted to lie his way out of it sought leave unsuccessfully to appeal against conviction and then, by way of renewed application to the full court, to appeal against sentence.  On the same occasion the full court considered and granted Davies' renewed application for leave to appeal against his conviction of the robbery.  The court did so on two proposed grounds: first, that the judge should have acceded to an application of no case to answer on the robbery at the close of the prosecution case and, second, for the court to consider the possibility of fresh evidence proffered by Cleaver exonerating Davies of that offence.
3.	Cleaver has now made a written statement and the court has received evidence de bene esse from him in support of it purporting to exonerate Davies of the offence, as indicated to the full court granting leave.
4.	The salient facts disclosed by the evidence at trial are as follows.  The offence of robbery, though charged as one of robbery of car keys from the owner of the Subaru car, Mr Page, was in fact an allegation of what is known as "car-jacking".  The story, all of which took place on 12th April 2002 in Tipton, starts some time between 3.15 and 3.30 pm that day with the taking and driving away from a car park of a blue Ford Orion, the subject of the other offences to which both men pleaded guilty. 
5.	Later that afternoon, at about 5.23 pm, both Cleaver and Davies were seen in the Orion outside Cleaver's sister's house at 1 Laburnum Road, Davies initially in the driving seat but then moving into the rear nearside seat to allow Cleaver to drive, and then moving off in convoy with a white Ford Fiesta behind.  
6.	The next sighting of the Ford Orion was about 20 minutes later at 5.44 pm when, driven by Cleaver, it rammed into the back of Mr Page's Subaru car.  When Mr Page stopped to inspect the damage the Orion also stopped, and, according to him, there were three young men in it.  While he was talking to Cleaver about the damage, the front seat passenger came up and punched him in the face, knocking him down, and the third man got out of the rear seat.  One or other of them then stole his car keys from his pocket.  Two of them drove off in his Subaru car and the third man from the rear seat of the Orion drove off in it.  We shall return shortly to the descriptions that Mr Page gave of the three men, though given the attack on him, it is not surprising that he could not be very specific.
7.	It looks as if the driver of the Ford Orion abandoned it very shortly afterwards, because within a few minutes a Miss Rushton in Cherry Road saw the Subaru on three occasions with three young men in it as it did circuits at speed around the area.  We shall also return briefly to her descriptions of the three of them.
8.	Within minutes again a police officer, Police Constable Fox, saw the Subaru being driven at speed, he thought by Cleaver alone in the car and followed by the white Ford Fiesta.  We should interpolate here that Cleaver in his evidence to the court has said that the two others in the car with him when he began the robbery were still in it when Police Constable Fox saw it. 
9.	Finally, just over half an hour after the robbery, that is at 6.20 pm, there was a firm sighting of Davies with Cleaver in the Subaru again outside Cleaver's sister's house at 1 Laburnum Road.  Davies was seen to emerge from the front passenger seat and take into the house a burgundy-coloured jacket that Cleaver had been seen wearing earlier.  He then returned to the Subaru, and Cleaver drove them away.  By this time there was a full police hue and cry after them, including a police helicopter.  Within a short time Davies, and then Cleaver, abandoned it.
10.	As Mr Gerard Quirke, counsel for Davies, acknowledged in his advice on appeal, there were therefore two crucial undisputed sightings of Mr Davies, first as a passenger in the shortly before it was used in the robbery, and second as a passenger in the Subaru about 35 minutes after the robbery.
11.	The prosecution case was that those sightings were strong circumstantial evidence of Davies' presence at and participation in the robbery.  However, that case fell to be considered against the descriptions given by Mr Page and Mrs Rushton of the three young men respectively in the Orion at the time of the robbery and in the Subaru a few minutes after it.  We need not detail their descriptions, save to say that none of the young men they described appeared to do full justice to Davies' appearance, which is conspicuous for his size, namely 6'2 to 6'3 tall, and very heavily and muscularly built, with his hair shaven very closely to the scalp and looking considerably older than his age of 20 at the time.
12.	Mr Page not only failed at an identification parade to pick him out as one of his assailants but identified someone else on the parade who could have had no connection with the robbery.  Mrs Rushton was not invited to attend an identification parade and there was no evidence from her purporting to identify him as one of the three young men she saw in the Subaru within minutes after the robbery. 
13.	It was in the light of that negative prosecution evidence as to description and identification at or about the critical time of the robbery that Mr Quirke submitted to the judge at the close of the prosecution case that the circumstantial evidence as to timing and continuity upon which the prosecution relied was insufficient to leave the case with the jury.  The judge disagreed, ruling that the matter was very much one for the jury to decide, having regard to all the evidence one way or the other.
14.	Davies' unsuccessful case at trial, as eventually presented by him in his evidence to the jury, was that, shortly before the robbery, Cleaver dropped him off in the Orion at a shopping parade in Tipton so that he could meet his girlfriend.  Then, he said, Cleaver drove off in the Orion with two others.  Some time later (as his evidence went) Cleaver returned with the Subaru and gave him a lift in it back to Cleaver's sister's house at 1 Laburnum Road.  We say "in his case as eventually presented to the jury "because he changed his account of it in the course of his evidence.  But throughout he had denied that he had been present at or had participated in the robbery.
15.	On Davies' renewed application to the full court to appeal against conviction David Clarke J, giving the judgment of the court granting him leave, first on the issue of the submission of no case, said this at paragraphs 14 and 15 of the court's judgment:
"It has been argued before us by Mr Wilcock, who now appears for the applicant Davies, that, in the light of the evidence as a whole, which was of a number of young men being seen getting in and out of the cars as they were driven around this estate, the submission should have been upheld and the case should not have been left to the jury, having regard especially to the very different description of this applicant.  He is said to be a broad, strong and bulkily-built man looking older than his 23 years.  If that is right, then his description is substantially different from the three men described by Mr Page.  
We are persuaded that the first ground, which relates to the submission of no case to answer, is one which may be pursued before the full court."
16.	The full court, as we have indicated, also gave him leave, on the strong indication to the court that Cleaver would make a witness statement and, if given the opportunity, would give evidence exonerating Davies.  He has now made such a statement, dated 28th January 2005, and has verified a copy of the letter that he wrote to Davies on 11th August 2002 (that is, before the trial), in which he asserted that Davies had had nothing to do with the robbery.  We have, as we have indicated, permitted him to give evidence de bene esse as to their content, which he has verified on oath.
17.	In substance his account, which has not been dented by the searching cross-examination of Mr Jackson for the respondent, is that he lied at the trial in saying that he had had nothing to do with the taking of the Orion or of being party to the use of it in the robbery of Mr Page in car-jacking his Subaru.  He acknowledged that he had been a party with two others in the Orion to that robbery and car-jacking but asserted that Davies was not with them at the time.
18.	As to his involvement with Davies that afternoon and Davies' involvement with the Orion shortly before and shortly before, and the Subaru shortly after, the robbery, he has given an account that tallied with the second of two conflicting accounts that Davies gave in evidence at the trial.  It was as follows.  After taking the Orion, he met Davies and allowed him to drive it with him, Cleaver, as a passenger for a while.  After returning to his sister's house at 1 Laburnum Road, they changed over.  At 5.23 pm (about twenty minutes before the robbery) he drove Davies in the Orion down to a nearby parade of shops and dropped him off so that he could meet his girlfriend there.  He, Cleaver, then drove off in the Subaru with two others, whom he would not name through fear, save to say that one of them came from the following Ford Fiesta.  The three of them committed the robbery, and after one of them had abandoned the Orion, they joined up again in the Subaru.  He, Cleaver, then did several speed circuits with them around the area as seen by Mrs Rushton and Police Constable Fox, and followed again for a while by the Ford Fiesta.  Within a short time the other two left the vehicle because they were scared by the gathering police interest in them, and then, just by chance, he saw Davies outside the shopping parade where he had left him and stopped and picked him up.  They drove back to his sister's house at 1 Laburnum Road, arriving at about 6.20 pm, namely about 35 minutes after the robbery, where Davies was seen to leave the car and enter the house carrying a burgundy-coloured top that, he, Cleaver, had been wearing.
19.	Mr Wilcock, in his submissions to the court, echoed those of Mr Quirke to the judge below as to the inadequacy of the evidence of identification and description of the witnesses to enable the prosecution to rely on continuity of occupation by the same three men, not only in the Orion before the robbery, but also in the Subaru after it.  He relied on the failure of Mr Page to identify any of his assailants, his wrong identification at the identification parade, and the difference between such descriptions as he gave from anybody who could have matched the appearance Mr Davies.  He made similar criticisms of the description given by Mrs Rushton.  He submitted that, in the light of that "negative evidence" as to description and identification, the circumstantial effect of the continuity evidence upon which the prosecution had relied - the before and after evidence of the occupants of the Orion and Subaru respectively - was an insufficient basis for a jury to conclude that Davies was one of the three robbers. 
20.	We have to say that, looked at on its own, we consider that submission of Mr Quirke to have been correct and Mr Wilcock's echo of it today in this appeal equally persuasive.
21.	But it does not stand on its own, given Cleaver's evidence to this court in exoneration of Mr Davies.  We have approached his evidence with all the usual caution that this court does when evidence is given by a convicted man in support of his co-accused's appeal against conviction at trial.  There are all the obvious dangers in that evidence, when proffered, of close collusion between two fellow accused, particularly in instances such as this where the two are plainly close friends quite apart from being companions in crime.  We have decided, having heard him de bene esse and having put his evidence alongside the uncertainties in the prosecution case, to receive it within the terms of section 23 of the Criminal Appeal Act 1968.  In our view, taking all four factors of that provision into account, it is a proper case to receive his evidence.
22.	The account that he gave, as we have said, is of a piece with the account relied upon by Davies eventually at trial.  It is also of a piece with the uncertainties in the prosecution evidence at trial as to the description and identification of the persons involved in the robbery.  
23.	We take into account what is evident from the papers in the case - the culture of those who engage in car-jackings and thefts and taking and driving away of cars in this area - the casual taking of cars, the giving of lifts to friends in them, dropping them, picking them up, and the excitement of the chase when the police finally home in on them.  There is a fluidity of movement of people who commit such offences which leaves room for the account given by Davies and also now by Cleaver.  The two grounds of appeal are related in that sense: the evidence of Cleaver substantiating the holes in the prosecution case at the close of the prosecution evidence.  It fortifies our view that there was, in truth, no case fit to go to the jury at the close of the prosecution case.  However, we emphasise that we are not in a position to say that we believe him.  We are simply of the view that his evidence is capable of belief.  It may be true.  There is a strong possibility that it is true for the reasons we have given; we say no more than that.  That being so, it clearly affords a ground for allowing the appeal because it makes us unsure as to the safety of the conviction.  
24.	We appreciate that the evidence comes to the court very late, but that is in the nature of evidence such as this, where a convicted man, long after conviction and failure of his appeal, then decides to do whatever he can, honestly or dishonestly, for those charged and convicted with him.
25.	In all, the evidence that we have heard and the picture we have been presented of the evidence given to the court below leaves us in a state of mind that we are unsure as to the safety of this conviction.  For those reasons we shall allow the appeal against conviction.