R v Long
| Jurisdiction | England & Wales |
| Judge | To,LORD JUSTICE LAWTON |
| Judgment Date | 03 July 1973 |
| Judgment citation (vLex) | [1973] EWCA Crim J0703-5 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 21/C/72 |
| Date | 03 July 1973 |
[1973] EWCA Crim J0703-5
Lord Justice Lawton
Lord Justice Scarman
and
Mr. Justice Ackner
No. 21/C/72
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. P. J. COX, Q.C. and MR. A. W. PALMER appeared for the Appellant.
MR. I. C. R. McCULLOUGH, Q.C. and MR. D. R. F. COX appeared for the Crown.
This Appellant, together with a man named Baldwin, was convicted at Birmingham Assizes after a trial before Mr. Commissioner Mynett, Q.C. and a jury, of robbery and was sentenced to ten years' imprisonment. He now appeals against his conviction by leave of the full Court. Baldwin's application to appeal against his conviction was refused by the full Court.
The appeal raises this question: was the learned Commissioner's direction to the jury on the issue of identification adequate? Before answering this question the Court has had to consider the broader question as to how juries should be directed when the issue at a trial is whether one or more witnesses who did not know the accused before the incident out of which the trial arises have made a correct identification.
The facts of this case are of an all too common kind. At about 4.30 p.m. on the 20th August, 1971 a van which was used by the Coventry and District Co-operative Society to collect cash takings from its branches stopped outside a branch at Walsgrave Road, Coventry. After cash had been collected, the van started to drive away. Its path was then blocked by a Ford Cortina which had earlier been stolen and which bore false registration plates CLX 360G. Three masked men got out of the Cortina. The driver of the van was clubbed. The robbers seized the bag containing that afternoon's cash takings, £4,830.10, and drove off. A lorry driver tried to stop the Cortina whereupon a shot was fired at his windscreen, if not at him. The Cortina then took a somewhat zigzag route through side streets and got away from the area.
The Police had reason to believe that the Appellant and Baldwin might be two of the robbers and started to look for them soon after the robbery. Neither was to be found at their homes in Birmingham; and when at last the Police were able to interview them, Baldwin on the 26th August, 1971, and the Appellant on the 2nd September, 1971, it was in the presence of a solicitor. The Appelant was brought to the Police Station by his solicitor. When asked at this first interview what he had been doing at the time of the robbery he gave an account of his movements which amounted to an alibi. He was then put on an identification parade and picked out by a Mr. Garner and a Mr. James. A Mr. Makepeace did not point out the Appellant before leaving the parade, but very shortly afterwards he told the Police that he had noticed on the parade a man whom he had seen in the Cortina motor car (which was clearly the one used by the robbers) shortly after the robbery. He was able to tell the Police where this man had stood on the parade: he was referring to the Appellant. His explanation for not pointing to the Appellant on the parade was that he had felt nervous and frightened.
After the parade Long was arrested on suspicion of being concerned in the robbery. The next morning, the Appellant produced to a Detective Inspector a piece of paper, exhibit B, which had on it the names and addresses of five people whom he claimed to have seen during the late afternoon of the 20th August, 1971. Two of these five were called at the trial to support his alibi, together with others whose names were not on exhibit B. Shortly before handing this piece of paper to the Police Officer, he said: "Look, I can help you if I can get out and find those who did the job." After some conversation about his own movements the Appellant said: "They are laughing at you "in Birmingham, them that's done it."
The trial lasted eight days. The Appellant gave evidence and said that on the 21st August, 1971 he had left his home in Birmingham with his family to go down to Devon on holiday. Whilst away he heard that the Police were looking for him. He returned to Birmingham on the 29th August, 1971 but did not go to his home because he wanted to consult his solicitor before seeing the Police.
On these facts there was one issue for the jury to consider, namely was the evidence of the three identifying witnesses reliable? They claimed to have seen the Appellant in different places and at different times. None of them had known the Appellant before the robbery and they did not know each other. Mr. Garner had much the best view. He claimed to have seen the Appellant and another man coming out of a passageway leading to the back of some premises of the Co-operative Society near which the robbery had taken place. He was suspicious because members of the public did not use this passageway so he looked at then as they got into a Ford motor car which was parked in front of it. When they did so, there were already two men in it. He noticed the colour of the registration plates and that there was an 'O' in the registration number. There were two weaknesses in Mr. Garner's identification of the Appellant. First, when he had attended an earlier parade at which Baldwin, not the Appellant, had been present he had picked out Baldwin and another man, who was not a suspect. Secondly, when giving evidence to the Magistrates' Court he had said in relation to the first identification parade: "I picked out two people but they are not in Court today." He explained this by saying that he had made a mistake because when asked in cross examination to look around the Court he had not turned round far enough and that he had appreciated almost immediately afterwards that he had made a mistake and spoke to a Police Officer about his error.
Mr. Garner was claiming to have seen the Appellant shortly before the robbery. Mr. Makepeace was the first of the two witnesses whom the Prosecution alleged had seen him soon after it. Mr. Makepeace was sitting in his motor car in Harefield Road which runs into Walsgrave Road where the robbery took place. He heard a noise which sounded to him like an accident. It was in fact the noise of the robbery. He got out of his motor car and walked up the road towards what he thought was the accident. He then saw a Ford Cortina come round the corner at the top of the road at a fast speed. There were four men in it. He said that he recognised the Appellant as the front passenger. This man was pulling off what seemed to be a mask. It is obvious that Mr. Makepeace's opportunity for looking at the occupants of the Ford Cortina was limited in point of time; but as against this, the way in which it was being driven and the conduct of the front passenger was such as to attract attention.
The weaknesses in Mr. Makepeace's evidence were the limited time he had for seeing and his behaviour at the identification parade to which I have already referred.
The last of the witnesses to identify the Appellant was a Mr. James. He was driving his motor car up Dove Road. A Ford Cortina came up behind him, drew level with him, increased speed, drew away and turned left at the top of the road. He followed. The Ford...
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