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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Holmes, R. v [2014] EWCA Crim 420 (14 March 2014) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2014/420.html Cite as: [2014] EWCA Crim 420 |
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ON APPEAL FROM Durham Crown Court
Mr Recorder E Duff
T20120354
Strand London WC2A 2LL |
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B e f o r e :
MR JUSTICE HOLROYDE
and
HIS HONOUR JUDGE LAKIN
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Regina | ||
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Hugh Raymond Frederick Holmes | Defendant |
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Mr A Dent (instructed by CPS Appeals Unit) for the Respondent
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Crown Copyright ©
Lord Justice Fulford:
Introduction
The Facts
The Bad Character Application
" the linked convictions of the sexual assault followed by the common assault upon a female, albeit that it took place in a public house and in somewhat different circumstances, seems to be of such a nature that it is admissible as being relevant to an important issue in the case, namely the correctness of the identification, since it does seem to me it would be an affront to common sense to say that it is not relevant that the very person that this witness picks out happens to have been guilty in the not too far distant past, in fact quite recent past in terms of offending, in May 2011, it is just about exactly a year previously pretty well, that is clearly relevant and supportive of identification and those two convictions I do permit to be given in evidence."
"And you should also look to see whether there is any other evidence which supports her identification, whether there is anything which you think is capable of supporting the identification and anything which in fact does. And that latter thing that I mention, ladies and gentlemen, is part of the reason that you have heard in this case, and you have been permitted by me to hear, the fact that the Defendant was convicted in August 2011 of two linked offences of sexual assault and assault occasioning actual bodily harm. You heard some brief details of those offences from the Officer in the case, who, putting it shortly, said that the Defendant sexually assaulted by, if I may use the colloquial term, groping a female in a public house, and then shortly afterwards he head-butted her.
Now, it is matter for you to assess. You may think, and certainly the Crown would invite you to think that whilst, happily, amongst the general population, sexual offending is a rarity, that this, they would say, is a somewhat unusual combination, of a sexual assault followed shortly thereafter by a separate physical assault, not actually part of the sexual assault but a separate one afterwards. The Crown would say there is the head-butt afterwards then here after the sexual assault, very shortly after, of course, there is the kneeing in the stomach. And the Crown say that that previous behaviour provides support, or is capable, they say, to provide support - it is a matter for you whether it does provide support, certainly it is capable of providing support to the identification, on the basis that it is the most enormous coincidence, the Crown would say, that here KS identifies as her attacker a person who, just by coincidence, happens to have a pair of convictions not a very long time before, which the Crown say bear similarities. It is up to you whether you in fact think they do bear similarities and whether in that case it is stretching coincidence too far, and it does provide support.
They also say that his behaviour in that way previously shows that he has a propensity, or a tendency to behave in that sort of way, and they say that that supports the case generally. Now, just because somebody has behaved in a particular sort of way previously, does not mean to say that they would behave in a similar sort of way on any subsequent occasion. And it is question for you whether that offending does in fact satisfy you that the Defendant has a tendency to behave in that way. And even if he has a tendency, it does not say that he has behaved in that sort of way on this occasion.
As I have already said to you, what is essential is that you do not say, "Well, he's done that previously, he must have done it this time". That would be completely illogical, it would be unfair, it would be contrary to the law. That is an approach you must not take. But you are entitled, should you think it right, to look at the evidence in the way that I have described and say to yourself, "Now, is that in fact support for KS's identification? Is it really taking coincidence too far?" And you are also entitled to say to yourself, "Well, are we satisfied that it shows that he has a tendency, and if he has a tendency to behave in that way, does that in fact generally support the Crown's case on this occasion?
Of course, ultimately, ladies and gentlemen, the case relies upon the correctness of the identification, and if you are not satisfied about the correctness of that identification, then that would be end of the matter. There is no other evidence to support the guilt of the accused. But you are entitled to look at the evidence of the previous behaviour and ask yourselves, does it in fact support the identification and does it in fact demonstrate he has got a tendency to behave in that way, and see whether that supports the case generally. If you took the view that it does not support the identification and it does not show that he got a tendency, then completely put it to one side. Just ignore that evidence, and concentrate purely upon the evidence of the identification."
The Submission of No Case to Answer
The Defence
The Grounds of Appeal against Conviction
The Appellant's Bad Character
The Submission of No Case to Answer
Discussion
The Submission of No Case to Answer
The Images used for the Identification Procedure
The Previous Convictions
The Failure to Rehearse the Potential Weaknesses in the Identification Evidence
"This is an identification case and the only evidence pointing to the guilt of the Defendant is the evidence of - the identification of the Defendant as her attacker by KS. Experience of the Courts over many years has shown that there is an especial need for caution in identification cases, and that is because mistakes can be made and have been made in identification, and miscarriages of justice have occurred in the past - Mr Petterson addressed you about a particularly famous old case. And juries have to be particularly careful when approaching identification evidence, because an entirely honest witness can still be a mistaken witness, and can be a very convincing witness, but still be wrong. Juries are extremely good at telling when witnesses are not telling the truth, are not wanting to tell the truth and are telling lies. Nobody is suggesting that KS is not telling the truth as she believes it to be, or is not being entirely honest. As far as she is concerned, she is giving wholly straightforward, honest evidence, and she genuinely believes that she has correctly identified her attacker. The question is not whether she is being truthful, but whether she is being accurate and is correct in her identification. So that is the reason for the need for caution. First of all, that mistakes can be made, and secondly, that you have got a wholly honest telling what she, in this case, believes to be the truth.
So you should examine with care all of the evidence surrounding the identification. You should examine the circumstances of the attack itself and the opportunity that KS had to observe her attacker. How long did she have her attacker in view? What was the lighting like? Did she have any particular reason to remember the person? Was her observation impeded in any way? Was there anything that might have affected her ability to recall the person that she saw? How long elapsed between the attack and the subsequent identification? Were the circumstances of the identification satisfactory? Were there any differences between the description that she initially gave and the description of the Defendant? So you look at all of those factors and you look at them with care."
Conclusion