Neutral Citation Number: [2016] EWCA Crim 246
Case No: 201502732 C2 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date:Thursday 3rd March 2016

 
B e f o r e:

LORD JUSTICE JACKSON 
 
MR JUSTICE IRWIN

SIR DAVID CALVERT‑SMITH 
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R E G I N A 

v 

BRADLEY JAMES DOHERTY
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Computer‑Aided Transcript of the Stenograph notes of
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Mr J Masters appeared on behalf of the Appellant

Mr M Roochove appeared on behalf of the Crown
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J U D G M E N T (Approved) 
LORD JUSTICE JACKSON:  
This judgment is in four parts, namely: 
Part 1. Introduction; 
Part 2. The facts; 
Part 3. The criminal proceedings; 
Part 4. The appeal to the Court of Appeal.

Part 1. Introduction
1.	This is an appeal against conviction in a burglary case.  The essential issue in the appeal is whether the judge rightly admitted certain identification evidence.
2.	At an earlier stage in the appeal there was a second discrete issue as to whether the judge rightly admitted evidence of the appellant's previous convictions.  That issue no longer arises as a discrete and separate matter.  However, if it turns out that the judge erred in admitting the identification evidence, then in those circumstances it is difficult to justify allowing the previous convictions to go before the jury, but that, as matters have developed, is a subsidiary point.  
3.	After these introductory remarks, we must now turn to the facts.

4.	Part 2. The facts
5.	A series of burglaries took place in the Peterborough area during December 2014.  In each case the burglars gained entry by smashing the glass in the back door.  
6.	The first burglary took place on 6th December at 27 Bath Road.  The items stolen in that burglary included a Thomas Sabo bracelet with an L pendant.  The second burglary took place between 8th and 12th December at 19 Kelburn Road.  The items stolen in that burglary included a silver ring with red charm, a pearl necklace, a yellow‑coloured charm, two love link charms, jewellery, two iPod Nanos, two iPod Shuffles, rose‑coloured flowered earrings, two Swarovski boxes, a Guess watch, a Canon camcorder, a Berghaus jacket and two teddy bears.  The third burglary took place on 14th December 2014 at The Willows, 9 Mill Lane.  The items stolen in that burglary included a Pandora bracelet and two charms.  
7.	Fortunately, the owners of The Willows at 9 Mill Lane had a CCTV camera fitted outside their property.  This took photographs of the two burglars arriving and subsequently leaving the property after they had completed their business.  The householder sent those photographs to the police.
8.	On 15th December 2014 the police conducted a search of the property at 18 Medbourne Gardens, Peterborough.  In the cupboard under the stairs they found the camcorder which had been stolen from 19 Kelburn Road.  They also found in that cupboard the four iPods which had been stolen from 19 Kelburn Road.
9.	On 22nd December 2014 PC Cummings examined the still photographs which had been taken by the CCTV camera at The Willows.  He asserts that he recognised the two burglars shown in those photographs as Bradley Doherty and Charlie Edwards.  
10.	The following day, 23rd December 2014, the police went back to 18 Medbourne Gardens and carried out a further search.  On this occasion Ms Georgina Young, the property owner was present. So also was Mr Doherty.  The police carried out a search.  They found all of the stolen items mentioned above, apart from the iPods and the camcorder previously recovered.
11.	The police arrested Mr Doherty in the living room at 18 Medbourne Gardens on that day.  They showed him the stolen bracelet which had two charms attached to it.  The stolen bracelet was an item stolen from The Willows at 9 Mill Lane.  The two charms attached to it formed part of the items which had been stolen from 19 Kelburn Road.
12.	When the police officer showed this bracelet with its attached charms to Mr Doherty, he said: "It's not hers. It's mine.  I bought it off someone.  So Mr Doherty was admitting ownership of items stolen during the second and third burglaries. 
13.	The police then took Mr Doherty to the police station and interviewed him in connection with the three burglaries.  Mr Doherty replied "no comment" to every question.  Those answers did not allay the suspicions of the police.  Criminal proceedings followed.
14.	Part 3. The criminal proceedings
15.	Mr Doherty was charged on an indictment containing three counts. The first count related to the burglary at 27 Bath Road. The second count related to the burglary at 19 Kelburn Road; the third count related to the burglary The Willows, 9 Mill Lane.  The defendant pleaded not guilty to all three counts.  He stood trial at Ipswich Crown Court during May 2015 before His Honour Judge Holt and a jury.  
16.	One of the first issues that arose concerned the identification evidence to be given by PC Cummings.  Defence counsel, Mr Jonathan Masters, challenged the admissibility of that evidence.  The judge held a voir dire in order to determine that issue.  PC Cummings gave evidence during the voir dire.  He gave evidence as to the circumstances in which he had looked at the photographs and identified one of the two men shown in those photographs as the defendant.  The judge, having heard the evidence of PC Cummings and having heard him cross‑examined, allowed the evidence to be called.  In the course of giving his ruling, the judge said this:

i.	"The evidence of PC Cummings is part of a jigsaw of evidence, but an important part, connecting the defendant with the burglary at 9, Mill Lane in Peterborough.  He was sent a disc with stills taken from the home owner's CCTV, and it was sent to him because he is a member of the Prolific Offenders Team, and had been since it began in March 2011, and from when it began, the defendant, who has a considerable list of previous convictions, was earmarked as a red offender, pursuant to that scheme, and so the officer told me that he met, saw, and stopped the defendant on dozens of occasions ...

ii.	He was also aware of what the defendant looked like because the defendant's image was posted on the wall of his office, with other offenders on the Prolific Offenders Team list."

17.	The judge then went on to refer to particular photographs amongst the various stills to which the officer had attached significance.  The judge concluded that the photographs were of sufficient quality to go before the jury so that the jury could decide whether they accepted the recognition evidence given by the officer.
18.	The next procedural issue which arose concerned the defendant's bad character.  Although only 21, the defendant was an accomplished criminal whose record included a huge range of offences.  The prosecution sought to put in evidence five of the defendant's previous convictions. Four related to burglaries, one related to a robbery which was in the nature of an aggravated burglary.  In each of the burglaries the defendant had gained entry by smashing the glass in the rear doors of the property. That was the means of entry used by the burglar, or burglars, in the three counts in the indictment.  
19.	The judge allowed in that evidence concerning previous convictions.  He observed that the prosecution had a reasonably strong case.  The judge therefore took the view that the previous convictions were not being used to bolster a weak case.  
20.	The trial proceeded.  The defendant elected not to give evidence.  Counsel made their closing speeches and the judge summed‑up.  The judge gave an appropriate direction as to drawing inferences, he warned the jury in conventional and correct terms about the dangers inherent in identification and recognition evidence and he explained the relevance of the defendant's previous convictions.  
21.	The jury retired.  After deliberating for three hours, they returned their verdicts.  They found the defendant to be not guilty on count 1 but guilty on counts 2 and 3.  The judge sentenced the defendant to five years' imprisonment concurrent on both of the latter two counts.  The defendant was aggrieved by his conviction.  Accordingly, he appealed to the Court of Appeal.
22.	Part 4. The appeal to the Court of Appeal
23.	By a notice of appeal filed on 12th June 2015, the defendant appealed against conviction on two grounds.  The first ground was that the judge erred in admitting recognition evidence.  The second ground was that the judge erred in admitting the appellant's previous convictions.  The single judge granted leave because he saw force in the first ground of appeal and made that plain in his reasons as the basis for granting leave to appeal.  The appeal comes on for hearing today.  Both Mr Masters, who appeared for the appellant below, and Mr Roochove, who appeared for the prosecution below, are here today to assist the court, and we are most grateful for their concise and well‑focused submissions.
24.	Mr Masters submits that when one looks at the quality of the still photographs taken from the CCTV at 9 Mill Lane, there was simply not enough there to enable PC Cummings to identify one of the two men as the appellant.  Accordingly, the judge ought not to have allowed that evidence to go before the jury.  
25.	In support of his submissions, Mr Masters places reliance upon the decision of the Court of Appeal in R v Moss [2011] EWCA Crim 252, [2011] Crim LR 560.  In that case Moss was convicted of burglary.  The prosecution relied on, among other things, the evidence of a police officer who had gone to the police station while off duty to check his e‑mails.  As the officer passed a computer screen he saw an image taken from the CCTV footage relating to the burglary in question.  He said that was Alvin Moss.  The officer reported the recognition to his superior, he did not make a note of the time, but a week later he made a note when he was on duty.  The officer said that he recognised Moss in the photograph by reason of certain facial features.  The judge declined to exclude the identification evidence under section 78 of the Police and Criminal Evidence Act 1978.  The defendant Moss was convicted and he appealed on the basis that the judge should have excluded that evidence.  The Court of Appeal dismissed the appeal.  Moore‑Bick LJ, giving the judgment of the court, said this at paragraphs 22 to 25:

i.	"22.  As we have observed, the court in Dean Smith was dealing with a relatively formal procedure. It was not dealing with recognition in an informal context of the kind that occurred in this case. In such circumstances the same degree of formal record keeping can hardly be expected, but it is important, nonetheless, for the jury to be able to assess the reliability of the recognition. Evidence enabling them to do that may be given in different ways. If the judge considers that the jury cannot properly assess the reliability of the evidence, or if it is clearly unsatisfactory, for example, because the photograph or recording itself is too poor to enable a satisfactory recognition to be made or the distinguishing features of the person in question are hidden, as they were in the case of Dean Smith itself, the judge will exclude the evidence. However, in many cases it will be for the jury to decide whether, having heard all the evidence, they are satisfied that the recognition is reliable.

ii.	23.  In the present case, PC Osmond was in a position to describe the circumstances in which he saw the CCTV film and recognised the appellant. He was also in a position to explain how he had come to know him, when he had last seen him and which of his features he particularly relied on to identify him. Of course he could have been telling a lie or could have been mistaken when he said he recognised the appellant, but it is impossible to exclude that possibility however carefully the process is recorded otherwise than by examining the basis upon which the recognition is said to have been made and judging the credibility of the officer in cross‑examination.

iii.	24.  In our view in a case of this kind it is important not to lose sight of the essential principles. PC Osmond reported the recognition to his superior, he made a note of it when he returned to work, he gave a description of his previous contact with the appellant, and thus an explanation of his ability to recognise him, all of which provided a basis on which the jury could judge the reliability of his evidence.

26.	The judge had a discretion to exclude the evidence of PC Osmond but declined to do so. In his summing‑up he gave the jury a clear warning of the dangers inherent in recognition evidence and of the risk that a honest witness who says that he recognised someone known to him may nonetheless be mistaken. He also gave them a clear warning of the need for special caution and of the danger of a witness digging his heels in when challenged. In our view the judge was right to allow the evidence to be given. He directed the jury correctly in relation to it and this ground of appeal fails."

27.	Mr Masters submits that from what we can glean about the facts of Moss, the photographs in that case were of a better quality than the photographs in the present case.  Mr Masters, in particular, draws attention to the following sentence in paragraph 22:

i.	"… If the judge considers that the jury cannot properly assess the reliability of the evidence, or if it is clearly unsatisfactory, for example, because the photograph or recording itself is too poor to enable a satisfactory recognition to be made or the distinguishing features of the person in question are hidden, as they were in the case of Dean Smith itself, the judge will exclude the evidence." 

28.	Mr Masters submits that this is such a case.
29.	We have carefully examined the stills. First of all, looking at them on the screen and, secondly, with the aid of photocopies of those stills which are before the court.  
30.	Mr Roochove, for the prosecution, relies upon the last sentence of paragraph 22 of Moss, which reads as follows:

i.	"However, in many cases it will be for the jury to decide whether, having heard all the evidence, they are satisfied that the recognition is reliable." 

31.	Mr Roochove submits that this is a case which falls within that final sentence, not the previous sentence upon which Mr Masters relies.
32.	We have been told a little about the course which the evidence took at trial.  Apparently, both during the voir dire and when the recognition evidence was given to the jury, the photographs were shown on a screen in court.  PC Cummings pointed to particular features of one of the individuals on the screen in order to explain why he recognised that as being the appellant.  He pointed to the top of the head, the hairline, the height, the build and the hunch of the shoulders.
33.	We, of course, accept that a great deal of clothing is covering the man in the photographs said to be the appellant.  On the other hand, some features are visible. One can see part of the face, one can see the hairline, one can also see the height.  Mr Masters submitted that the height cannot be gauged because there is no reference point.  We do not accept that submission.  We can see the man standing in the surroundings with the wall of the house and other features such as the eaves of the house in view.  It is possible to gain a impression of that individual's height.  Mr Masters said, well, one cannot gauge mannerisms from those photographs because they are stills.  That is true, but one can see in a series of photographs the way that man is standing, his gait, the hunch of his shoulders and so forth.  
34.	We accept that this is not a straightforward case.  The photographs are not as revealing as they might be.  On the other hand, we think that the photographs were of such a quality that it was appropriate for the judge to allow them to go before the jury so that the jury could form their own view as to whether they accepted the recognition evidence given by PC Cummings.  Defence counsel, Mr Masters, cross‑examined the officer very thoroughly. He challenged the officer to point at particular features of the photographs individually on screen and the jury had every opportunity to form their own balanced conclusion as to whether they accepted the recognition evidence or not.
35.	When it comes to the admission of bad character evidence, the position is that there was before the jury the recognition evidence to which we have referred.  There was also the fact that the appellant was in the property at 18 Medbourne Gardens, where all of the items referred to in counts 1, 2 and 3 of the indictment were found.  On top of that, there was the defendant's admission that he owned the bracelet and the charms, those items having been stolen from the properties referred to in counts 2 and 3 of the indictment.  This was certainly not a case of bad character evidence going in to bolster a weak case.
36.	In the circumstances, we have come to the conclusion that the judge properly admitted the evidence to which the defence took objection.  Thereafter the judge delivered a very fair summing‑up.  Mr Masters, who has been conspicuously fair in his submissions today, does not criticise the summing‑up. It contained appropriate warnings as to the dangers of identification and recognition evidence, and indeed appropriate guidance as to the other matters such as the relevance of previous convictions.
37.	In the result, we cannot accept the grounds of appeal put forward and we dismiss this appeal.