R v Penman
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROBERT GOFF,MR. JUSTICE HUTCHISON |
| Judgment Date | 21 June 1985 |
| Judgment citation (vLex) | [1985] EWCA Crim J0621-8 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 580/B3/85 |
| Date | 21 June 1985 |
[1985] EWCA Crim J0621-8
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Robert Goff
Mr. Justice Beldam
and
Mr. Justice Hutchison
No. 580/B3/85
MR. C. SALMON appeared on behalf of the Appellant.
MR. S. MASKERY appeared on behalf of the Crown.
Mr. Justice Hutchison will give the judgment of the court.
The Appellant, James Penman, appeals by leave of the single judge against his conviction on 18th January 1985 at the Peterborough Crown Court, before His Honour Judge Young and a jury, on an indictment which charged him and three other men with burglary. The premises concerned were a television rental shop in Oundle Road, Peterborough. Of the other men charged in the indictment one, the appellant's brother, Glen Penman, pleaded guilty and two, Goldsmith and Hood, were tried with and convicted at the same time as the appellant. At the conclusion of the hearing we reserved our judgment and we now give reasons which, as will be seen, lead us to dismiss the appeal.
The material facts can be summarised as follows. At about 2.15 a.m. on the morning of 14th June 1984 Mr. Osborne, the licensee of a nearby public house, was awakened by the sound of breaking glass. On looking out of his bedroom window he saw two men carrying boxes across the road. They were dressed in track suits, were wearing hoods and had on their feet what looked to him like sports shoes or trainers. He saw two other men similarly dressed, wearing similar footwear and taking items out of Cotton's window. His wife telephoned the police who were quickly on the scene with tracker dogs. One of the dogs took up the scent and led the police to a shed in the garden of a nearby house, 36, Palmerston Road. In that shed the police found three video recorders that had been stolen from Cottons. They found the appellant's brother Glen and the other two defendants in bed. They all said that they had been asleep. On searching the house and the dustbin at the back, the police discovered three masks, some gloves, various items of clothing and three pairs of shoes, two of which were trainers and all of which were size 9. Forensic evidence later established that the patterns left by shoes in Cottons had been made by the two pairs of trainer shoes which were also found to have fragments of glass on them, while on the other pair of shoes, which were not capable of leaving an identifiable pattern, there was found a small fragment of glass which had a refractive index similar to that of the broken glass from Cotton's window. The forensic scientist who gave evidence in relation to the glass, Mr. Elliott, said that the forensic science laboratory kept records of all glass submitted for analysis and that the refractive index of the glass in Cotton's window was found in only 1% of the glass examined in those laboratories.
On the way to the house the tracker dog had given an indication that the scent also led into the car park of the Palmerston Arms, and on searching there later the police found a number of stolen videos hidden under a car.
Number 36, Palmerston Road, is a house in which the appellant and his brother Glen Penman live. While the police officers were making the discoveries to which we have just referred (which led them to arrest the other three defendants and take them to the police station) the appellant was not there. However, at about 5.20 a police officer returned to the house and found the appellant there. He later told the police that he had arrived home at about 5 a.m. He was arrested on suspicion of the burglary and cautioned. He responded by saying that the officers must be joking. Both then and subsequently, he consistently denied that he had been involved in the burglary in any way.
At the time of his arrest the appellant was wearing trainers and these also were submitted, together with his socks, for forensic examination. We shall return to describe the results of that examination shortly.
Following his arrest the appellant was twice interviewed by the police and questioned about his movements the previous night. The first interview occurred just before midday on 14th June and he said that he had gone out at about 8 or 8.30 to see a girlfriend at Bretton. He refused to name the girlfriend, saying on more than one occasion that he did not want the police to go round there upsetting; her and although pressed to name her, in his own interests, he resolutely refused, saying at the conclusion of the interview that he did not want her involved. He said that he had spent the night with her and had arrived home at about 5 a.m.
In the second interview, at about 3.30 the same afternoon, he described how he had walked to and from Bretton, a walk of about an hour, because he was short of petrol and did not, therefore, wish to use his car. He was asked whether he had walked past Cottons on his way home and he replied that he had and had seen the broken window. He was asked if he had walked on the pavement outside the shop and he replied that he had crossed the road before getting to the shop and had noticed a glass-fitter's van outside the shop. He said that there was not glass all over the road because it had already been swept up by the time he passed. Questioned about the girl, he maintained his refusal to name her, saying: "She's one of my mates' birds, I can't tell you." The officers again pressed him, pointing out that it was in his own interest to identify her but he still refused, saying that the mate referred to was a nutter and would put a shotgun to his head.
The forensic examination of the appellant's socks and shoes established the following matters; first, that the shoes were size 6 or 7, and that none of the marks on the premises could be identified as having been made by those shoes. There were, however, three minute particles of glass on the left shoe, the refractive index of one of which was the same as the refractive index of the glass from Cotton's window. On one of the socks there were four minute glass fragments, the refractive index of two of which was similar to the Cotton's glass. In cross-examination of Mr. Elliott, the forensic scientist who gave evidence of these matters, Mr. Salmon elicited a number of answers on which, at the trial and in argument before this court, he has placed great reliance. They were, first, that the glass fragments were so small that they could not be seen by the naked eye, being only a little larger and a little heavier than most dust particles; second, that they were small and light enough to be moved by a fairly strong wind - for example, if they were lying in the road by the disturbance created by a passing vehicle; third, that the four glass fragments which were dissimilar to the Cotton's glass came from at least three different sources; and, fourth, that if shoes that have been in use are subjected to forensic examination they will generally be found to have one or more glass particles adherent to them. Mr. Blliott, whose evidence was that the refractive index of the glass in Cotton's window was unusual and that the three small fragments of glass on the shoes and socks that had a similar refractive index could have come from Cotton's window, also agreed that he could not be sure that they had done so. As a scientist he was, of course, bound to make this admission, bearing in mind his evidence that 1% of glass examined in the forensic science laboratories had a similar refractive index.
At the close of the prosecution's evidence Mr. Salmon, on behalf of the appellant, made a submission of no case, and his first ground of appeal in this court is that the...
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R v Lesley
...them on the issue of identification. The Recorder never made this clear to the jury." 45 And so the conviction was quashed. 46 In the case of Penman [1986] 82 Cr.App.R 44, the submission was advanced: "…that wherever an alibi was relied on and there was a possibility that in rejecting the a......
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Henfield et Al v Commissioner of Police
...other than that of the witness who is to be corroborated. That principle has recently been affirmed, and any extension of it resisted, in R v. Penman (1986) 82 Cr App R 44 at 50, R v. Francis [1991] 1 All E.R. 225 at 231, [1990] 1 W.L.R. 1264 at 1271 and R v. Sharp [1993] 3 All E.R. 225 at......
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Henfield et Al v Commissioner of Police
...than that of the witness who is to be corroborated. 119 That principle has recently been affirmed, and any extension of it resisted, in R v. Penman (1986) 82 Cr App R 44 at 50, R v. Francis [1991] 1 All E.R. 225 at 231, [1990] 1 W.L.R. 126 at 1271 and R v. Sharp [1993] 3 All E.R. 225 at 230......
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...other than that of the witness who is to be corroborated. 28 That principle has recently been affirmed, and any extension of it resisted, in Penman, 82 Cr App R 44 at page 50, Francis, 91 Cr App R 271 at page 277, and Sharp (Judgment 29 January 1993, at page 7 of the transcript). 29 In the......