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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Ali v R [2008] EWCA Crim 1522 (17 July 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/1522.html Cite as: [2008] EWCA Crim 1522, [2009] Crim LR 40 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM The Crown Court at Southwark
HHJ G Stone QC
T2006 7829
Strand, London, WC2A 2LL |
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B e f o r e :
MRS JUSTICE COX DBE
and
HHJ STOKES QC
RECORDER OF NOTTINGHAM
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Faraz Ali |
Appellant |
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- and - |
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Regina |
Respondent |
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Mr E Culver for the Respondent
Hearing date: 8 July 2008
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Crown Copyright ©
LORD JUSTICE HOOPER:
It is admissible evidence, it is actually in my view significant evidence. I think that the evidence should be called, I am very unhappy that admissible evidence is discarded.
Can you just be clear what your role is, it is your role to present the admissible evidence. ...Your role is not to discard admissible evidence.
It shows him getting on to the train and at a later stage it shows a number of youths leaving the train station and there are various issues that arise as a result."
Well the difficulty is this your honour, the identification has focused a good deal about the physical description, but there is also this issue of a turquoise top. Now the reason I have had reservations about it is because of the labelling that has occurred
Well because of the labelling your Honour, that labelling goes to an individual in a dark coloured top. The identification ... of the victim in the case relates to someone in a turquoise top.
I am sorry I did not mean to interrupt your Honour, but it is slightly disconcerting when you are defending somebody whose case is that he was not on the train to hear the trial judge say that the video shows him on the train. It does not, that is what the prosecution case is. It is not what the defence case is. Forgive my slight note of frustration hearing your honour referring to it.'
If you call admissible evidence from a police officer to the effect that in my opinion this is Ali on the tape, the defence argue is wrong because he has not got a turquoise shirt. It is a matter for the jury, that's how it works. It does not work by the prosecution caving in and saying OK well we will not call half our case. That is not how it works.'
Well what about in effect that I was told by my learned friend, no doubt for sensible tactical reasons that he was not going to be relying on this video, but the result that the complainant has now given his evidence and not been asked anything about the video at all. This point that your honour is saying has been blown out of proportion by my learned friend is not with respect to either of you been blown out of proportion, it is a significant point, in that the victim says that the fellow that came through into my compartment was wearing a turquoise top. Your honour is happy enough to say to the jury presumably that you can rely on this man's evidence of identification and note of detail in other regards, but with regards to his clothing it is quite plain from the video that there are at least three people there wearing turquoise tops, and the person that we understand PC Gittings purports to identify as the defendant is plainly not one of the three people wearing a turquoise top
Now the case against the defendant depends to some extent on the correctness of an identification of him at a video identification parade by [SH]; which the defendant says is mistaken. Now I have said to you that it depends to some extent because there are really two important strands of evidence here. There is [SH's] evidence, but there is also the CCTV evidence, both before the group get on the train and when the group get off the train.
Since the group getting off the train are running away, hiding their faces from the CCTV, and there is no dispute that is from the train where this robbery took place; you can see that there are two important strands of evidence in this case.
Now in this context you need to have in mind three things: At the video identification parade [SH] said that he was not one hundred per cent sure of the identification. Of course you can also have in mind that when he gave his evidence, [SH] said to you that he was sure that he had not made a mistake and therefore that his identification was correct. Second, at one stage he identified the man as the man who patted down his pockets and robbed him of his mobile phone, but he also said that that man was a shorter man with ginger hair. Now that issue was later clarified by the taking of a further statement in which he said, No: the man he had identified was not the man who had actually grabbed his mobile phone, he was the man who first came into the carriage and if you like did the rekkie before the other men arrived. Third, he said that the man had a turquoise top. Whereas the defendant as you have seen from the video, was not wearing a turquoise top. The remaining description, it appears to he agreed, is accurate, but what he said about the top was wrong. (Emphasis added)
So have to look at those points carefully, but in looking at the safety of the identification you can also look to see if there is supporting evidence. In this case there is supporting evidence which you should consider. First of all, the defendant was identified by PC Gittings as one of the men running away from the train at Hendon railway station trying to cover their faces from the CCTV.
Well you heard evidence from PC Gittings. He explained to you that he deals with the public for many reasons. Information was circulated by the police as intelligence. They have a system for doing that, stills go on the system and members of the British Transport Police can identify anybody they recognize. He recognized him as Faraz Ali from the still at Hendon.
Second, there is the evidence of your own eyes. The video and the stills are your exhibits and you can use your own eyes. There is the still of the man running away at Hendon which PC Gittings identified, but there are at least two clear views of the same man's face at Mill Hill station. You can take, if you think it right and you must be careful about this of course you can yourselves look at the man on the platform and I say there are at least two clear views of his face and you can form your own view about it. It is important that you do not simply leap to that conclusion and that you consider the matter carefully. You are certainly entitled to use your own eyes in this respect and you need to see the video again then you only need ask and that can be arranged.
(1) where the image is sufficiently clear to permit a comparison to be made with the defendant;
(2) where the image is identified by a witness who knows the defendant sufficiently well to recognize him;
(3) where the identification is based upon opinion evidence from either a facial mapping expert or other experienced witness who has acquired specialist knowledge by spending substantial time viewing and analyzing images captured at the scene of the crime.