R v Turner (Paul)

Thursday 6 October 1994

THE LORD CHIEF JUSTICEOn 17 September 1993, in the Crown Court at Lincoln, the appellant was convicted and sentenced as follows: for having an imitation firearm with intent to commit an indictable offence (count 1), three years imprisonment; for robbery (count 2), eight years imprisonment, those two sentences to run concurrently. He appeals against conviction by leave of the single judge.

The facts are as follows. At about 5.50 p.m. on 7 December 1992, a man armed with what appeared to be a gun committed a robbery at the Scampton Way Stores, a corner shop in Gainsborough. He stole about £200 in cash. Several witnesses described the robber. There were slight differences in those descriptions, particularly of his clothing, but it was generally agreed that he was wearing a black or navy donkey jacket, jeans, a flying hat with flaps, and a scarf or large handkerchief covering his lower face. It follows from that that no one at the scene was able to see his full face. Clothing and a gun were found by the police following a tip-off by an informer, who was not named in the proceedings. Those items were found a day or two after the robbery in fields about one-and-a-half miles from the scene. They were found on two separate occasions, the clothes on one and the gun on another. It was common ground that the clothing found had belonged to the appellant. Indeed, his fingerprint was on an article in the pocket of one of the items of clothing.

The appellant was arrested on 16 December. To the police he said that he had left the Nodding Donkey public house at 4.30 on the relevant afternoon and gone home. He had stayed at home until 5.30 p.m. He had then set out for a public house. On the way, he had called at the home of a friend of his partner to see whether his partner was there, but she was not. He went on to see another man, and then to the Nodding Donkey. At about 6.00 p.m., he said he saw Police Constable Burgess on a street corner. That assertion was confirmed in a statement which Police Constable Burgess made, the confirmation being put before the jury by agreement, since Police Constable Burgess was not called.

The prosecution contended that the appellant was wearing the clothing which he conceded was his, that he had committed the robbery, and that he was lying to the police about his whereabouts at the time of the robbery and also about the clothing.

As to the clothing, he told the police, when first interviewed, that it had nothing to do with him, and that he had never lent any clothing to anyone. He said, at that first interview, that he was being set up.

The defence case was that the appellant was elsewhere at the time, that since he and Police Constable Burgess agreed that at six o'clock he was seen on a street corner some distance away from the premises where the robbery took place, it would have been extremely difficult, if not impossible, for him to have committed the robbery and then got to the place where the policeman saw him at the time stated.

The appellant gave evidence on his own behalf. He accepted that the clothes found by the police were his; they were old clothes he had used when drain-laying. He had discarded them several months before his arrest; he had put them in bags, which he kept in a shed. On the day of the robbery, he said he had been in a public house and met an acquaintance called Mitch who said he was going to sort out someone who had been "knocking off" his girlfriend. The appellant offered to get him a cheap gun. They went to another friend of the appellant, Mr Dargen. There the appellant bought the gun from Dargen whilst Mitch waited outside. The appellant sold the gun on to Mitch, making £5 on the deal. He also provided the old clothes for £5 to Mitch, because Mitch was wearing bright-coloured and readily recognisable clothes at the time. After the transaction, the appellant went home. He still contended that he had an alibi for the relevant period.

He conceded, in cross-examination, that he had lied to the police, giving them the impression that he had not left his house until 5.40. He did not mention Mitch to the police. He had lied and abstained from mentioning Mitch because he was scared, and he was frightened about being charged with something he had not done. He called evidence to support his alibi.

The prosecution did not wish to disclose the details of the informant who had alerted the police. The day before the trial, they applied ex parte to the learned judge to rule that they were not under any duty to do so according to the principles laid down in R v Ward96 Cr App R 1, and in accordance with the procedure laid down in R v Davis and...