King v Mark Reynolds and Niall Reynolds and Robert Rooney and Gavin McKenna
| Jurisdiction | Northern Ireland |
| Judge | Her Honour Judge Smyth |
| Judgment Date | 16 June 2023 |
| Neutral Citation | [2023] NICC 18 |
| Date | 16 June 2023 |
| Court | Crown Court (Northern Ireland) |
1
Neutral Citation No: [2023] NICC 18
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: [2023] NICC 18
ICOS No: 21/62064
Delivered: 16/06/2023
IN THE CROWN COURT OF NORTHERN IRELAND
SITTING AT BELFAST
__________
THE KING
v
Mark Reynolds
Niall Reynolds
Robert Rooney
Gavin McKenna
Her Honour J Smyth
Introduction
[1] This is a defence application at the conclusion of the prosecution case that none
of the four defendants have a case to answer. In determining this application, I am
required to rule on the admissibility of recognition evidence by police officers in the
course of controlled viewings.
[2] The charges arise out of an incident of civil disturbance in the Kilwilke estate in
Lurgan on Sunday 23 August 2020. Police had been in the area dealing with a
suspect device which had been abandoned. A number of neighbourhood officers on
foot and in vehicles were tasked to engage with the local community and explain the
police presence. A hostile crowd began to form and within a short period of time
there were four petrol bomb attacks on police. Fortunately, there were no injuries.
[3] The petrol bombers were masked. The prosecution relies on a combination of
evidence, namely recognition evidence at the point when the suspects are not
masked and are identified by police officers in controlled viewings, coupled with the
evidence from footage from a camera on top of a landrover (EGT), bodyworn
footage, aerial footage (ASU) and social media footage. The prosecution relies in
particular on the evidence of Constable Nick Gray regarding the tracking of the
suspects in terms of time and place on the footage and the identification of clothing.
The recovery of items of clothing footwear and accessories from police searches is
relied on as supporting evidence.
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[4] The court admitted the evidence of Constable Gray on the basis of A-G
Reference (No 2 of 2002) [2002] EWCA Crim 2373,where the English Court of Appeal,
relying on R v Clarke and Peach [1995] 2 Cr App R 333 , held that a witness, who did
not know the defendant, acquired special knowledge that a tribunal of fact did not
have by spending time viewing and analysing photographic images from the scene.
On that basis the witness could give evidence of identification based on a
comparison between those images and a reasonably contemporary photograph of
the defendant, provided that the images and the contemporary photograph were
available for the tribunal of fact.
[5] Constable Gray’s evidence was that he had viewed the footage and the images for
around 150 hours. He was permitted to draw the court’s attention to relevant
features on the footage and from stills taken from the footage but he was not
permitted to give a commentary that he had prepared or to give evidence relating to
his conclusions.
[6] I remind myself that while the court is entitled to have regard to this evidence
and to the comparisons made by Constable Gray as an expert on the basis of the
special knowledge acquired, when coming to its conclusions, having given the
matter careful consideration it does not have to accept his evidence, nor does it have
to act upon it. It must remember that the expert evidence relates only to part of the
case and while it may be of assistance it must reach its verdict only after the totality
of the evidence is considered. In any event, even if evidence is admissible, the court
must decide the weight that should be attached to it.
[7] Since this case concerns identification evidence I remind myself of the principles
in R v Turnbull [1977] QB 224 that there is a special need for caution before
convicting a defendant in reliance on the evidence of identification. That is because it
is possible for an honest witness to make a mistaken identification and there have
been wrongful convictions in the past as a result of such mistakes. I remind myself in
particular that an apparently convincing witness can be mistaken as can a number of
apparently convincing witnesses. The circumstances in which the identification by
each witness was made must be carefully examined and any specific weaknesses
must be considered.
[8] Since this is a case that depends on circumstantial evidence, I also remind myself
that such evidence needs to be examined with great care for a number of reasons.
First of all, such evidence can be fabricated. Secondly, to see whether or not there
exists one or more circumstances which are not merely neutral in character but are
inconsistent with any other conclusion than that the defendant is guilty. The
standard direction given to juries reminds jurors that this is particularly important
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