R v Kris Ronald Flynn
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gage |
| Judgment Date | 02 May 2008 |
| Neutral Citation | [2008] EWCA Crim 970 |
| Docket Number | Case Nos: 200700129C4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 02 May 2008 |
[2008] EWCA Crim 970
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT READING
His Honour Judge Risius
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Gage
Mr Justice Hedley and
Sir Christopher Holland
Case Nos: 200700129C4
200700130C4
Mr Stephen Batten QC and Mr Nicholas Yeo (instructed by Hughmans, Solicitors) for the Appellant Flynn
Mr Richard Griffiths (instructed by Swain, Solicitors) for the Appellant St John
Mr Neil Patrick Moore (instructed by the Crown Prosecution Service) for the Respondent
Hearing date : 10 April 2008
On 7 December 2006 at Reading Crown Court the appellants, Kris Flynn and Joe Phillip St John, were convicted of conspiracy to commit robbery. On 8 December 2006 each was sentenced to 13 years' imprisonment less the appropriate days spent on remand. There were two other co-accused. Mark Bannister pleaded guilty and was sentenced to 12 years' imprisonment. On 4 December the full court quashed his sentence and substituted for it a sentence of 10 years' imprisonment. Frank Sines was acquitted of conspiracy and discharged. The appellants appeal with leave of the full court.
These appeals raise issues relating to identification by voice recognition. The evidence was as follows. On 29 April 2006 at about 7.50 am, Samia Taourit, an employee of Elonex Computers plc, arrived for work at the company premises situated at Cricklewood, London. The company acted as a distribution warehouse for IBM computers and stored on its premises expensive computer equipment. The premises had in the past been a target for criminal activity as a result of which a strong room had been placed on the premises as a security measure.
The evidence
Mr Taourit was the first employee to arrive at the premises on that day. He unlocked the main gates to the premises and drove his car into the car park. As he was walking into the main building he noticed a white Mercedes Sprinter van which had driven through the open gates. Believing the driver to be lost, Mr Taourit approached the van and spoke to the passenger. A number of hooded masked men then jumped out of the rear of the van and pushed a double-barrelled shotgun into Mr Taourit's stomach. He was pushed into the premises and told to de-activate the alarm. This he did in order to prevent the robbers harming him. All of the men were wearing masks or balaclavas and some had crowbars with them. The robbers took personal documents from Mr Taourit before taking him to a reception room where his feet and hands were bound with red parcel tape and cable ties.
At some point during the course of the robbery, the robbers panicked on hearing a noise outside. They left the premises, having been unable to penetrate the steel walls of the strong room. In fact the strong room contained approximately £10,000 worth of computer chips. After the robbers had left in the white van Mr Taourit was found by colleagues in a very distressed condition. It was not in dispute that between 19 March 2006 and 29 April 2006 there existed a criminal conspiracy to rob Elonex Computers plc. The issue for the jury was whether or not these two appellants were parties to the conspiracy.
In support of its case against each of these two appellants the prosecution relied on evidence of a number of circumstantial facts, together with some forensic evidence. In addition, the prosecution relied upon evidence of police officers who purported to recognise the voice of each appellant taken from recordings of conversations covertly obtained from a microphone in the Sprinter van just before it entered the premises.
The van used in the attempted robbery had been stolen on 20 March 200On 29 March 2006 it was seen parked at an address in Slough bearing registration plates with the number VN04WFW. These registration plates were false, since that registration number belonged to another Sprinter van owned by a different company which was at the time locked up in the owner's compound. Whilst the van was being watched on 29 March the appellant, Flynn, and the co-accused, Sines, arrived in a silver Subaru which belonged to Flynn. They went into the premises where the van was. In the following days before 28 April 2006 covert surveillance cameras tracked the Sprinter van in different locations and recorded visits to it by Flynn and other men. On 28 April 2006, the night before the attempted robbery, the Sprinter van was moved by Bannister and Flynn to Heron Close in Ascot, close to Flynn's father's home. At some stage before 29 April 2006 police officers fitted a secret listening and transmitting device in the van. On 29 April at 05.10am, Flynn and Sines appeared together and were seen to spend three or four minutes with the bonnet of the van open. They were apparently using jump leads to start it. Flynn was wearing gloves; Sines was not. The van then was then driven out of view. The van was next seen by Mr Towritt when it entered the premises of Elonex Computers plc.
Following the aborted robbery the van was seen by police officers to leave the premises. It and an accompanying Volkwagen Golf motor vehicle, with two people in the front, both wearing balaclava helmets, were followed by police vehicles. Although police were unable to follow the Sprinter van and Volkswagen Golf to their ultimate destinations, the Sprinter van was subsequently located and removed for forensic examination. This examination revealed fingerprints attributable to both of the appellants.
In addition to the above evidence, the prosecution relied on voice recognition evidence given by four police officers. Their evidence was to the effect that they recognised the voices of Flynn and St John on the covert recording of voices in the sixty minutes before the Sprinter van entered the premises at Cricklewood. The evidence of the police officers was that, having spoken to the two appellants during and after their arrest, they were able to recognise their voices on the recording captured by the covert recording device. The officers had also obtained covertly a sample of each of the appellants' voices in conversations at the police station. Further, the jury had before them two transcripts of the recording taken from the van. One was produced by one of the police officers and the other by Dr Frederika Holmes, an independent forensic consultant. The latter had been instructed on behalf of the prosecution. At trial, counsel on behalf of both appellants objected to the introduction of the voice recognition evidence and the transcripts. The judge ruled both the evidence of the police officers and the transcripts admissible.
Shortly after the discovery of the Sprinter van Flynn was arrested. At interview he replied “No comment” to all questions asked of him. St. John left the United Kingdom on 11 May to get married abroad and returned on 26 May 2006. On that date he was arrested. He was interviewed twice on the same day but answered “No comment” to all questions put to him.
Each of the appellants gave evidence. Both denied taking part in the conspiracy. Flynn said that he had been helping Bannister to repair a Sprinter van because it had starting problems. He did not dispute the forensic evidence connecting him with the van. He denied that his voice was on the covert recording taken from the van.
St John said that he had spent the weekend during which the robbery occurred with his family. Both appellants relied on the evidence of first Dr Frederika Holmes and second, Professor John French, a speech recognition expert, in support of their case that it was not possible to recognise the voice of either of them on the covert listening recording. Much of Professor French's evidence was distilled into written admissions which were placed before the jury.
The grounds of appeal
There are two grounds of appeal. They are common to both appellants. First, the judge's decision to admit the voice recognition evidence of the four police officers in evidence is challenged. Secondly, it is submitted that the judge failed to give an appropriate direction in relation to this evidence. Before we turn to these grounds of appeal we must make some general comments about the background to voice recognition evidence.
Voice recognition evidence generally
There can be no doubt that the admission of voice recognition evidence is controversial, perhaps highly controversial. In this appeal we are concerned with two categories of such evidence. They are the agreed evidence given by two experts in voice identification and the evidence of the four police officers.
The first category, expert evidence, in this field can be of two types: firstly, auditory analysis and secondly acoustic/spectrographic analysis. The second category of evidence falls into a group described by the experts in this case as lay listener evidence. The latter requires that the witness possesses some special knowledge of the suspect that enables him or her to recognise the suspect's voice. The most common example of such evidence is the knowledge of a close relative or friend. However, there are other persons who may acquire sufficient special knowledge by their familiarity with the suspect's voice. For example, a person may acquire such familiarity by the frequency of his or her contact with the suspect. A yet further group may comprise those who acquire specialist knowledge by listening to a sample of the speech of a known person and comparing it with a recording of a disputed voice. The latter are referred to in some...
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Subject Index
...Flynn [1996] BCJ 2155; (1996) 111 CCC (3d)521 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298, 299R v Flynn and St John [2008] EWCA Crim 970. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348–349R vFoxley (1995) 2Cr App Rep523 . . . . . . . . . . 294R v Francis......
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Table of Cases
.... . . . . . .275R vFerguson (1970) 54Cr App R410 . . . . . . . . 317R vFinland (1997) 25EHRR 371 . . . . . . . . . . . . . 44R v Flynn [2008] EWCA Crim 970, [2008] 2 Cr AppR 20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50–57R vFunderburk [1990] 1WLR 587 . . . . . . . 46, ......
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The Reliability of Expert Evidence: Reflections on the Law Commission's Proposals for Reform
...to re-form, the Law Commission acknowledges that it is not the only option.40 [2003] 1 Cr App R 5 (p. 77).41 (1991) 93 Cr App R 161.42 [2008] EWCA Crim 970. See D. Warburton and T. Lewis, ‘Opinion Evidence:Admissibility of Ad Hoc Expert Voice Recognition: Rv Flynn’(2009) 13 E & P 50.43 Law ......
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Legal versus non-legal approaches to forensic science evidence
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