No. 2009/02718/B1
Neutral Citation Number: [2009] EWCA Crim 2347

IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Thursday  8  October  2009

B e f o r e:

LORD  JUSTICE  RIX

MR  JUSTICE  McCOMBE

and

MR  JUSTICE  BURNETT

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R E G I N A

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LEE  STUART  JAMES
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Mr A Houston appeared on behalf of the Appellant

Miss J Brennan appeared on behalf of the Crown
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J U D G M E N T
Thursday  8  October  2009

LORD JUSTICE RIX:  
1.  This is an appeal in which it is said that the judge was wrong to leave the case to the jury and then compounded that mistake by admitting evidence of bad character.

2.  The appellant is Lee James, who is now aged 33.  On 7 May 2009, in the Crown Court at Winchester, before His Honour Judge Longbotham and a jury, he was convicted by a majority of 10:2 of a single count of burglary and was sentenced to four years' imprisonment.  He appeals against conviction by leave of the single judge.

3.  The victim of the burglary, Joan Chambers, who was 96 years of age gave evidence at the trial.  She was said to be possibly the oldest person ever to give evidence at a trial and did so in a spritely fashion.  She lived alone at 27 Carter's Meadow, a private sheltered housing estate for retired and elderly people in Andover.  On 24 July 2008, at around 11am the landscape gardener for the development, Lionel Randall, noticed a man "sidle" in and out of 27 Carter's Meadow very quickly, without touching the door.  This conduct raised his suspicions.  His evidence was that he followed that man on foot to the local Tesco store a few minutes away along Charlton Road, although he conceded that he lost sight of him a couple of times for a few seconds on each occasion.  However, for the reasons we shall describe, this case does not turn on any question of continuity of observation.

4.  Mr Randall's evidence was that he saw that man enter Tesco's.  He followed him in and within a short space of time he observed him in the check-out queue between another person in front and a person behind.  He then left the store and peered through a window at the man in the check-out queue in order to try to have a better view of his face.  By and large he had been following him from behind.  He asked the Tesco staff to retain the CCTV recording.  Footage recorded between 11am and 11.30am was later seized by the police.  The first seven minutes of that footage was before the jury, the parties having satisfied themselves that there was nothing relevant after that time which it was necessary to show to the jury.  There was a formal admission that the timings on the CCTV recording were 15 seconds fast (that is 15 seconds fast as against the speaking clock).  The following day Mr Randall provided to the police a description of the man he had seen.

5.  The police began by arresting a gentleman whom they had to release because it was the wrong person.  He was wearing a black shirt whereas, as we shall explain, Mr Randall's description was of someone in an essentially white shirt.

6.  However, on 15 August 2008 (about three weeks after the burglary) the appellant was arrested.  In his interview that day he denied the burglary.  He was vague about his whereabouts that morning and of what he had been wearing.  When shown stills from the CCTV recording, he said of the man in the check-out queue standing between two other people that he looked like him, but he was not sure whether it was him.  He confirmed that he was willing to stand on an identification parade.  Unfortunately, no such parade was held on the basis that, when asked if he would be able to recognise the man he followed at an identification parade, Mr Randall said that he doubted that he could.  The judge was to hold that that was a breach of the Code, of which the jury were told and which they were asked to take into account.

7.  However, having dealt with the question of a formal identification in that way, one week before the trial the police asked Mr Randall to look at the CCTV footage and say whether he could identify the man on the footage as the man he had followed.  The judge ruled that evidence to be inadmissible to be put before the jury.  We say nothing more about it.

8.  The prosecution case was that the man whom Mr Randall saw enter 27 Carter's Meadow and whom he followed to Tesco was the appellant; that inside Mrs Chambers' home he had stolen a £20 note and a £10 note which she had left on a tray in the kitchen; and that Mr Randall's observations and descriptions of the man that he followed were supported by the appellant's use of a £20 note at the check-out in Tesco's.

9.  The defence case was that the jury could not be sure either that there had been anything stolen from Mrs Chambers' home at all, or that the person whom the appellant accepted was himself and could be seen on the CCTV and in stills taken from it, was the man whom Mr Randall had followed from the allegedly burgled premises.  

10.  The details of Mr Randall's following of the man whom he saw enter Mrs Chambers' home do not matter because as will become apparent the critical point on this appeal is a timing point relating to the fact that the CCTV footage obtained from Tesco's started at 11am and did not go back before that time.  On the following day Mr Randall gave to the police an initial description of the man he followed.  It was noted in an officer's notebook as follows:

		"A white male, mid-twenties or thirties, small beard, short fair hair, white top, possibly with a motif, and jeans, about 6ft tall, medium build, approximately 12 stone."

In evidence Mr Randall said this:

		"Approximate age between 25 and 35, height 5ft 10ins to 6ft, build about mine, medium build, weight about 12 to 13 stone, about the same as me, fair hair, I think fairly short, a well-groomed person.  Summertime perhaps changes people's hair, it was a little bit fair, not a big beard, about a month's growth or to six weeks, depending on how fast the beard grew, fairly certain he had a beard.  Clothing, upper, it was a white top, light coloured, could have been white or off-white, some form of motif or writing on the front and the midriff, generally hanging out all the way round.  Lower clothing, light coloured jeans, very light blue, as I remember it."

There had also been a reference to a red motif on the white or off-white top.  Mr Randall said that he was sure that the person he saw in the check-out queue at Tesco's was the man that he had followed from 27 Carter's Meadow into Tesco's.  

11.  The timing of the Tesco's evidence is as follows.  The CCTV footage shows the man whom at trial the appellant accepted was himself in the check-out queue and at the payment desk at between 11.00 and approximately 11.01.13 that morning.  The Tesco receipt which was given to the appellant for his purchase of a top-up Orange mobile phone card was timed at 11am.  The Orange receipt time of that purchase was 11.04am.  Mr Randall checked his watch on the way to Tesco when he was following his suspect.  His watch recorded 11.03am.  Mr Randall was proud of the timing of his watch, but we know from the evidence in the case that he was three or four or so minutes fast of the Tesco CCTV timing, and we know that that CCTV timing was accurate to within 15 seconds of the proper time.  

12.  Although the appellant is seen in the check-out queue in a position between two other people, as described by Mr Randall in his evidence, and was also seen there on the CCTV looking around and looking to his right, as Mr Randall had described in his evidence that the man he had followed to Tesco had done, there is nothing on the Tesco CCTV footage to show either the appellant or Mr Randall entering Tesco.  Mr Randall's evidence was that he followed the appellant into the store.  It follows that both Mr Randall and the appellant must have entered the store before 11am.  That is consistent with the fact that the CCTV shows the appellant already in the queue at 11am.  

13.  The timing point is therefore this.  It is common ground that throughout the whole of the half hour from 11am to 11.30am there was no one else, apart from the appellant, on the Tesco CCTV footage who was in any other way a candidate for Mr Randall's description.  Mr Randall said in his evidence that there was no other person of similar appearance inside the store when he was there.  If, therefore, in circumstances where Mr Randall was not permitted to identify before the jury the appellant on the CCTV footage as the man whom he had followed, the appellant's submission, clearly put on his behalf by Mr Houston who represents him today as he did at trial, that it was possible that the police had made a mistake in bringing proceedings against the appellant based upon Mr Randall's description, was right, it follows that there must have been another person of like appearance at Tesco's very shortly before 11am.  The hypothesis is that Mr Randall arrived shortly before 11am, before the CCTV footage began, saw another person of like appearance to the person described who was in fact the person that he had followed, and that that other person was in and out of the store before the 11am footage began.  Given Mr Randall's timing on his watch and allowing for the possibility that it was a few minutes fast, all this would have had to have happened within a very short time before 11am.  On this hypothesis, the suggestion is that the appellant was then mistakenly taken to be that person who had come and gone a few minutes earlier.

14.  It is submitted on the appellant's behalf that in these circumstances, where the absence of CCTV footage for the period immediately before 11am did not provide watertight evidence confirming Mr Randall's evidence, the general case presented upon Mr Randall's evidence was so weak that it should have been withdrawn from the jury at the half-time submission of no case to answer; or, in any event, if just strong enough to meet the test of a case to answer, was still a case sufficiently weak as to make it improper to admit, or necessary to exclude on the ground of fairness, the evidence of the appellant's previous convictions. 

15.  What was that evidence?  One was a conviction for a burglary in 2001 of a small complex occupied by an elderly female.  Another was a conviction in 2002 when the appellant entered through an unsecured patio rear door and stole a handbag from inside a dwelling house.  A third was in 2005 when the appellant gained entry by an insecure kitchen door which had been left ajar to allow air circulation and he removed two handbags from the kitchen.  The Crown submitted that these previous convictions displayed similar features to the opportunistic burglary which had occurred at Mrs Chambers' premises when entry had been obtained through an open door and two notes totalling £30 had been taken from the kitchen just within.

16.  In his submissions to us, as to the trial judge, that this was a case which was unfit to go before the jury, Mr Houston said that there was no admissible direct identification evidence; that the appellant had been deprived of the benefit of a proper video identification parade; that there was a difference in timing between Mr Randall's 11.03am and the Tesco's 11am; that the appellant appeared clean shaven in the CCTV stills (although today before us Mr Houston accepted that it was very difficult to tell from the CCTV stills whether the appellant was clean shaven or had a beard); that the shirt that the appellant was wearing was not a white tee-shirt, as originally described, but a football shirt which had a very visible splash of gold on the back of it together with some blue piping, neither of which was described by Mr Randall (and we were informed that in cross-examination he said that he had seen neither gold on the back nor blue piping); that the red writing on the front of the shirt was originally described as a "motif" and only described as "writing" in evidence and was one of the matters which indicated that Mr Randall's evidence had been affected by his viewing of the CCTV one week before trial; and that other aspects of such subconscious influence could be found in his description of the top clothing originally as a "tee-shirt" and only as a "football shirt" at trial.  It was also submitted that there was no CCTV footage showing the appellant entering the store followed by Mr Randall and that there was no CCTV preserved before 11am, which meant that there was no secure knowledge that immediately before 11am there was not some other person entering the store who might have fitted the description given by Mr Randall.  It is also said that there was no clear sign on the CCTV footage of Mr Randall outside the store peering through the window as he had described.

17.  We have considered these points very carefully, but we have concluded that the only one of those points which is of real (if any) assistance to Mr Houston is the fact that there is no CCTV evidence before 11am.  Once 11am is reached, it was common ground that there was no other candidate for Mr Randall's suspect whom he had followed from Mrs Chambers' to Tesco's.  So the hypothesis must be that in the minute or minutes immediately before 11am there was another person who fitted that description.  It is upon that basis that Mr Houston submits that the case was so weak as to amount to no proper case to answer.

18.  Having carefully considered that and Mr Houston's other points, we have concluded that that is not a sufficient basis upon which to say that the judge erred in allowing the case to go before the jury.  In truth, there was no evidence at all that the court was concerned with a time before 11am.  At most it must have been only a minute or so that could be in question, given Mr Randall's confidence in his watch (fast as it may have been by three or four minutes).  Therefore what has to be hypothesised is that in the time immediately before 11am there had to be someone else of similar general appearance to the appellant, wearing clothes of similar appearance, using Tesco, there at virtually the same time as the appellant, and who went not only into the store followed by Mr Randall immediately before 11am, but had also left the store immediately before 11am and the beginning of any CCTV recording, and had thus avoided all appearance on any CCTV camera and had also avoided being seen by Mr Randall, whose evidence was that the man whom he had followed and seen in Tesco was the only man of that description whom he had seen throughout.  We also bear in mind that for the whole of the next half hour, from 11am to 11.30am, it is common ground that the appellant was the only person in Tesco who in any way fitted Mr Randall's description.

19.  In those circumstances we consider that it is mere speculation to say that there was some other person whom Mr Randall followed and for whom the appellant, standing in the Tesco queue at 11am and 11.01am, was wrongly arrested as a suspect.  In truth, for all the slight discrepancies between Mr Randall's original description and his evidence at trial, and for all the slight discrepancies between Mr Randall's descriptions at any time and the appellant's actual appearance or clothing, the descriptions were reasonably fair descriptions of the appellant.  In any event, once the 11am point is taken, considered and dealt with, the Crown's case, so far from being so weak as not fit to go before the jury, becomes a strong and powerful case.  It is the case of a suspect followed from the scene of the crime into Tesco's, where he is seen in the way described by Mr Randall, at the right time, behaving in the way in which Mr Randall described in his evidence, and making a brief purchase at a store which was not his local supermarket store, as was established by other evidence.  

20.  The next question is whether the bad character evidence of previous convictions should have been admitted in these circumstances.  If Mr Houston had been right to submit that this was a case not fit to go before the jury, then the question of the admission of that evidence would not arise.  There may be cases, however, where although a case is fit to go before the jury, it nevertheless remains a weak case and as such would fall within the dictum of the Vice President (Rose LJ) in the leading case of R v Hanson, where he said that weak cases should not be bolstered by the admission of bad character evidence.  We remain faithful to that important observation.

21.  However, for the reasons which we have already given, once speculation about another person of the same description entering Tesco's, followed by Mr Randall, immediately before 11am, is capable of being seen as speculative hypothesis, the case becomes not a weak case which just passes the threshold of a case to answer, but a strong case.  It is a case we consider in which the judge was entitled in his discretion to admit the previous convictions as evidence of bad character.  

22.  Of course, there remain all the dangers and difficulties of a case which involved description.  However, no complaint is made of the directions which the judge gave.  The judge gave careful directions concerning the caution which the jury must bring to their deliberations.  He identified all the difficulties in the descriptions and the discrepancies which were relied upon.  Moreover, in dealing with the bad character, he emphasised not once but three times that the jury were only to consider the bad character evidence as possibly (subject to their view) giving some support to the Crown's case if they had already concluded that they could safely rely upon Mr Randall's evidence.  The judge repeatedly emphasised to the jury that they were only to go on to consider the further evidence of the appellant's previous convictions if they were sure that Mr Randall was both a truthful and a reliable witness.  He also gave a proper and accurate explanation of why they were looking at the bad character evidence.  Again, no complaint is made of the judge's directions in this regard.

23.  In sum, this was a case which was properly fit to go before the jury and a case which, however it might ultimately be described, was not that kind of weak case which in our judgment Rose LJ had in mind in his observations in Hanson.  For all these reasons this appeal must be dismissed.