R v Richardson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SACHS |
| Judgment Date | 16 February 1971 |
| Judgment citation (vLex) | [1971] EWCA Crim J0216-7 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 6434/B/70 |
| Date | 16 February 1971 |
[1971] EWCA Crim J0216-7
Lord Justice Sachs
Lord Justice Fenton Atkinson
Mr. Justice Mars-Jones
No. 6434/B/70
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. B. SEDGEMORE appeared as Counsel for the Appellant.
MR. M. WARRINGTON appeared as Counsel for the Crown.
On 25th November at South- East London Quarter Sessions before the Deputy Chairman the appellant, aged 29, was convicted on two counts of burglary, one being charged as on the 23rd April and the other on the 9th May, 1969. He was sentenced to 12 months' imprisonment concurrent on each count.
The circumstances leading to the convictions were that on the afternoon of 23rd April, 1969, someone broke into a flat in Stepney and stole £50 and a number of premium bonds: that was the offence charged in count 1. Then on 9th May about 12:15 p.m. another flat in Hackney was burgled: that was the offence charged in count 2.
In each case the sole issue was one of identity. As regards the first of those counts, relating to 23rd April, the effective evidence for the Prosecution was that of one Mr. Norman Kenley. He had come home to the flat where he lived with his parents and as he arrived he met a man leaving. Having shouted to his mother, who did not happen to be in, he chased the man but could not catch him. On 24th June, 1969, he attended an identification parade. There without hesitation he identified the appellant as the man in question. So far as is material he likewise identified the appellant in the dock but that was quite subsidiary.
He was very properly cross-examined with some vigour and he agreed that he had only seen the man for a matter of seconds: but when it came to the ultimate test at the end of the cross-examination and it was suggested to him that he had made a mistake, the answer came, "If I had any doubt at all that this man was not the person who came out of my house I would say so." He was then put the stock but perhaps irrelevant questions as to whether he knew that other people had made mistakes in the past and it was again suggested to him that that was here the case, and he answered, "You may be suggesting it but it still will not alter the fact of what I saw." A more positive identification does not often occur in the witness box.
The other witness called relating to count 1 was a Mrs. Morgan who occupied another flat in the block. She however got a much less clear view of the burglar. She was unable to identify the appellant and her evidence was of no great assistance.
Turning to 9th May, 1969, the salient evidence was given by Mr. Martin Fahy. He, assisted by Mr. Black, was working in a fifth-floor flat in Hackney. They heard banging from another flat. Mr. Fahy went out and saw that the door of another flat was open and a man was standing in the doorway with his hand on a meter box. They stood for a few moments face to face full on. After a short conversation in that position, during which Mr. Fahy continued to have a full and unobstructed view, the man ran away downstairs. Mr. Fahy with very proper determination followed. In order to catch him he slid down the banisters and overtook him and again he had what he described as being a very clear view. Later, on 2nd June, Mr. Fahy identified the appellant on an identification parade with no less certainty than Mr. Kenley did later: and was completely unshaken in the witness box.
As regards Mr. Black, Mr. Fahy's workmate, he too failed to identify the appellant and was accordingly a witness of but little assistance to the court.
It is to be observed at this stage that whereas the trial started on 23rd November, 1970, the second of the two offences took place on 9th May, 1969, over eighteen months earlier. For a case of this type that represents a mammoth delay in the operation of the law and is quite lamentable. It is relevant just to mention the sequence of what happened. The case was first listed at London Sessions for 23rd February, 1970 - a sufficient delay in all conscience of itself. On that occasion Mrs. Morgan was ill and the witness Black had not answered when called, so accordingly the case was adjourned. Then one goes for as long an interval as six months: that is the time which elapsed before 12th August, 1970, when the case was re-listed - this time at South- East London Sessions. It is difficult to refrain from comment criticizing the first court for having failed to re-list it earlier, whatever the pressure of other cases.
On 12th August Mrs. Morgan did not appear though Mr. Black did. The Defence insisted that they wanted the presence of Mrs. Morgan, useless witness though she turned out to be: the case was once more adjourned and a bench warrant issued for the attendance of Mrs. Morgan. Then it was re-listed on 28th October, 1970, at the same Sessions. This time Mrs. Morgan was sick and again the Defence insisted that the case should not go on without her presence. So accordingly once more it was adjourned, this time till 23rd November, when at last it came on for trial.
Much though the court arrangements after 23rd February may be the subject of criticism, it was no fault of the Prosecution that these delays occurred after that date. As regards the Defence, something of what happened may be laid at their door: their attitude may have been excusable but it was somewhat unrealistic.
Now it is for the Court to turn to the matters upon which the trial Judge gave the certificate that the case was fit for appeal. In the circumstances it seems best to read it in full. "Each of the 5 civilian witnesses called for the prosecution refreshed their memories by reading the statements which they had respectively made to the Police in July 1969. They did this shortly before being called to give evidence at the trial. This fact came to light during the course of the trial and objection to what had occurred was taken immediately by the Defence. In the course of argument I was referred to Home Office Circular No. 82/1969 ('Supplies of Copies of Witnesses' Statements') dated 9 April 1969. This circular expresses the view that 'notwithstanding that criminal proceedings may be pending or contemplated, the chief officer of police should normally provide a person, on request, with a copy of his statement to the police.' In the present case, however, it appeared that the Prosecution had taken the initiative in telling each of the witnesses concerned that they might refresh their memories, if they wished, by reading their respective statements. Each of the witnesses did this.
I ruled that in view of all the circumstances that this was not objectionable and that the Defence had not been prejudiced by what had occurred. In reaching this view, I took into consideration (i) the exceptional length of time which had elapsed before the case came on for trial, and (ii) that evidence of positive identification at two identification parades...
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