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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Malashev, R. v [1997] EWCA Crim 471 (14 February 1997) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1997/471.html Cite as: [1997] EWCA Crim 471

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		14th February 1997

LORD JUSTICE AULD: On 21st February 1996, before His Honour Judge Coombe, sitting in the Central Criminal Court, the appellant was convicted of the offence of affray, Count 2 on the indictment. On 29th March 1996 he was ordered to undertake 20 hours community service. He was acquitted on 21st February on another offence charged in the same indictment in count 1, of having an imitation firearm with intent to cause a person to believe that unlawful violence would be used against him or another person. He appeals against conviction of the offence of affray by leave of the single judge.

The background to the matter is as follows. On 14th July 1995 in the evening, some of the occupants of Burgen Square in London became aware that stones were being thrown in the square. They saw a man enter the square brandishing what looked like a small handgun; he seemed to be drunk. There were a group of children outside in the square at the time. Later on a man was seen in a public house not far away called the Ship and York. The police were called to Burgen Square as a result of what some of the occupants had seen there, and they drove around the area looking for a man of the description given. They found the appellant just outside the Ship and York public house shortly afterwards. They drove him back to Burgen Square where a number of witnesses of the earlier incident were waiting, some of them angry. Three of them identified the appellant, sitting in the back of the police car, as the man concerned. He denied that he was the man concerned or that he had a gun. He maintained that he had been with friends that evening and that he had gone to a different public house from the Ship and York. Apparently there is another public house called the Ship and Whale where he said he spent the relevant part of the evening. So his defence was one of denial and alibi.

In more detail the prosecution case was as follows on the evidence given to the jury. Mrs Angela Whitmore, who was one of the occupants of Burgen Square, saw stones coming towards her window at about 10.00 pm on this July evening. She noticed, as she looked out, some children in the play area and as she watched she saw a man come up the stairs to the play area. He turned and faced her and as he did so he pointed a handgun at her. He also pointed it at the children. She screamed at the children to come into the house and they all ran towards her front door. She let most of them in but inadvertently locked two outside. The two outside were Mark Isaac and Corinne Feldbacher. Mrs Whitmore telephoned the police. She went back into the kitchen and looked out again. She saw the same man still there pointing the handgun towards her window. He was quite close to the house; she put his distance at only feet away. She then saw him walking away out of the square.

Her description of the man to the police when they attended was that he was dressed in black with a colourful motif on the front of his black T-shirt. She also described him as being plump, scruffy, aged about 35, five feet nine or five feet ten with quite long scruffy hair. She said that she saw his face quite clearly, and indeed she seems to have had a good opportunity to do so as he approached so closely to the house. In her evidence she described later going out into Burgen Square when the police brought the appellant back in the police car. They asked her to look at him to see if he was the man that she had seen earlier. She looked at him and immediately identified him as that man. She said that she recognised his round face, and his clothes, she said, were exactly the same.

One of the two children inadvertently locked outside her door while she was telephoning the police was, as we have said, Mark Isaac. He too in evidence described seeing stones being thrown and a man coming up the stairs towards the play area. He said that the man walked over to the play area and pointed a handgun at him. He said that while he and Corinne Feldbacher were outside Mrs Whitmore's house, the man pointed the gun again at them. He described Mrs Whitmore eventually opening the front door and letting them in. They too looked out of the kitchen window and Mark said that the man was still outside and was still pointing the gun towards them. He saw him leave by the stairs. His description of the man was that he was an angry looking man with wide open eyes, as if he were on drugs or in a trance or drinking. He too described his hair as scruffy. He said he was about 34, five foot seven, chubby and with dark scruffy hair. And he too described his clothing as being black, black jeans and a black T-shirt with, as he described it, a picture and writing on it. He was in the square when the police car returned shortly afterwards, ten to fifteen minutes later he thought. He looked in the car to see if the police had got the man who had been in the square and he too identified him as the same man, the appellant, remarking that he had the same face and the same clothes.

The other child, Corinne Feldbacher, gave a very similar account of seeing stones being thrown and of the man arriving in the square and pointing the gun at her. She too described him as about five foot seven, in his 30s with staring eyes, chubby face, and again dressed in black with a motif on the front of his T-shirt. She too said that she recognised the appellant as that man when he was brought back to the square in the police car.

There was evidence from a number of other people who had been in or about the square at the time when the man was first seen. Mr McCormack, who lived opposite to Mrs Whitmore, said that he saw a man throwing stones and that later when he went out something whistled past his head. He thought it could have been, he was not sure, from an air rifle or an air gun.

Moving on to the evidence about the public houses. Mr Gadilhe was sitting at a table in the Ship and York public house. He put it at about 9.30 to 9.45 p.m. He said that a man came in and sat at the table. He described him as being of average height with fairly gaunt features and dark clothes, late 20s or early 30s. He said that the man appeared to have been drinking, that in conversation the man said to him "I'm Russian and I've got a gun in my pocket" and that he left the public house at about 10.30 to 10.45 p.m.

The licensee of that public house, spoke about a person who can only have been the same man. He thought he came in at about 10.15 or 10.30 p.m.; times were not very precise in the evidence in this case. He thought he left at sometime before 11.00 pm. He described the man as aged 30 to 40, five foot eight to five foot ten, plump with a plumpish face and wearing a T-shirt with a motif. He said that the man had clearly had a drink or two but he was able to walk. He studied the man carefully but saw no weapon on him. However, the man became a bit of a nuisance and eventually the licensee had to ask him to leave, which he did. Five or ten minutes later a police officer came in and asked him if he had seen a Russian man with a gun. Shortly after that the licensee saw the appellant, as it was, the same man whom he had spoken of earlier, getting into the police car. He had no doubt that it was the same man.

Finally, the police officers gave evidence. They spoke of stopping the appellant outside the Ship and York public house. He was dressed as Mrs Whitmore and the children had described; his black T-shirt having a most distinctive and large motif on the front; we have photographs of it. The officers said that the appellant appeared to be very drunk. He said that he had been to a public house. They asked him what he had been doing and he said that he had been with his friends, and he mentioned Burgen Square. He said that he had been in Burgen Square looking for a place called Norway Gate. They asked him if he had been the man with the gun whom witnesses had spoken of in Burgen Square. He replied "I'm Russian. I want you to contact my Embassy". The officers searched him and they found no gun on him. They found no gun anywhere which could be related to him. As they searched him he shouted "I didn't mean any harm"> They arrested him for suspected possession of a firearm, hand-cuffed him and, as we have mentioned, drove him in their police car back to Burgen Square. There were, according to the police evidence, a number of people there. As the police car stopped they surrounded the car; they were annoyed and they were shouting and swearing and banging on the windows. The officers told the crowd to stand back and then Mrs Whitmore, among others, said "You've got him. That's the man" or words to that effect.

The police interviewed the appellant later through an interpreter. The appellant gave an account of arranging a party that evening with two women friends and of being joined by a man friend. He spoke of his movements earlier on in the evening and then indicated that at about ten or sometime after ten, they went to a public house which he said was not the Ship and York but the Ship and Whale. He said that they stayed drinking there until nearly 11.00 pm and that when they left he was arrested by the police just outside the Ship and Whale public house. He confirmed his request to be put in contact with the Embassy when the police arrested him. He maintained that he was moderately drunk but not drunk by Russian standards. He said that he had not been the man who had caused the trouble in Burgen Square earlier on that evening.

Two of the persons with whom he claimed to have spent most of the evening were called to give evidence on his behalf. The man, Igor Getmanski, spoke about them being in the Ship and Whale public house at about the time the disturbance was being caused in Burgen Square. One of the women friends of whom he had spoken gave similar evidence, although her timings were not quite the same as those of either the appellant or Mr Getmanski.

In the course of the prosecution case counsel for the appellant asked the judge to exclude the evidence of identification given by Mrs Whitmore and the two children, Mark Isaac and Corinne Feldbacher. He did so on the ground that there should have been an identification parade in accordance with the relevant code (Code D) under the regime established by the Police and Criminal Evidence 1984. He submitted that it was wrong to arrange this impromptu and informal identification in Burgen Square. He argued that the sight of the appellant sitting in the back of the police car was likely to have suggested, to those who were asked to identify, that he was the man, which would not have occurred if all the safeguards of an identification parade had been undertaken. The judge ruled against that submission, as is plain from the summary that we have given of the evidence of the trial. He did so after considering a number of decisions of this court, about identification of this informal sort shortly after an alleged offence has occurred and close to the scene. They were R. v. Kelly in 1991 (unreported), R. v. Oscar [1991] Crim LR 788 CR, and R. v. Rogers [1992] Crim LR 187 CA.

There are two grounds of appeal which have been ably argued by Mr Raymond on behalf of the appellant.

The first is that there is an inconsistency, he submitted, between the verdict of guilty on the offence of affray and the verdict of not guilty on the firearms charge. Mr Raymond argued that even on a superficial examination of the evidence the verdicts appeared to be inconsistent. He submitted that they were logically unsustainable on the evidence because three prosecution witnesses had identified the appellant in the back of the car as the man they had seen frightening them with a firearm, and it was the pointing of the firearm at the people in the square, which included the identification witnesses, that constituted the affray. He said that if the jury's finding of not guilty on the firearms charge was on the basis that the witnesses were mistaken as to the gun, this necessarily undermined the credibility of their finding on the affray which was based on the same evidence of identification. How could the jury, he asked rhetorically, both reject the more serious case of the appellant threatening a number of people with a gun, yet convict him of the affray? If, on the other hand, he submitted, the jury's finding of not guilty on the firearms charge turned on the issue of intent, not the simple fact of possession of a handgun, it was not possible to deduce with any confidence that the jury must have found no intent due to drunkenness to explain the illogicality of the two verdicts. He suggested that though there was evidence of the appellant's drunkenness, it is hard to think that the jury could have considered it of such level as to have affected the man's intention at the time. The evidence of Mrs Whitmore and some of the other witnesses, he maintained, showed that the man in the square was one of some agility, fluidity of movement and determination at the time, not suggestive of a high level of intoxication. That was the first ground, inconsistency of verdicts.

The second ground is that judge was wrong in not excluding the identification evidence, that given by the witnesses who identified the appellant in the back of the police car as the man formerly in the square. Mr Raymond maintained that when the appellant was brought back to the square, the identifying witnesses must have expected to see the person whom they had seen earlier, and when they saw a man in the back of a police car hand-cuffed there was the danger that they would jump to the conclusion that he was the man concerned. It lacked all the obvious safeguards, as had been submitted to the judge at the trial, of the formal identification procedures provided for under the 1984 Act. As Mr Raymond put it, that circumstance of first seeing the appellant in the back of the police car was likely to contaminate their view and their expressed opinion identifying him as the man who had caused trouble.

As to the first ground of appeal, inconsistency of verdicts, Mr Raymond's submission, in our view, portrays a misunderstanding of the approach of this court to allegedly inconsistent verdicts. The test is not whether the jury must have taken a particular view of the case so as to explain the different verdicts, the test is that stated by the court in

R. v. Durante 56 Cr.App.R, 708, and other cases; whether the court is satisfied that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the different verdicts. That cannot be said here. As the judge carefully explained to the jury in his summing-up:

"The central issue on the charge of affray was one of identification whereas on the firearm charge that was only one of three issues. The other two were whether, if it was he, he had an imitation handgun or gun, and if, so whether he had the requisite specific intent to constitute the offence. The intent the prosecution had to prove was an intent to cause a person; namely any of the witnesses who claimed he pointed the gun at them, to believe that unlawful violence would be used against one of them or others. On such a matter of specific intent, the drunken state of the appellant, if it was he, was capable of affecting the jury's view of his guilt or innocence of the firearms charge in a way in which it would not have borne on his guilt of the affray if the jury were sure that it was he, since that offence does not require proof of any specific intent.

The judge could not have put the differences between the two offences and the additional issues arising for the jury on the firearm charge more clearly than he did. He put to them that identification was an issue on each of the charges, but went on, at page 6, of the transcript of his summing-up to say this about the firearms charge;

"That it is great issue on Count 1 but it is not the only issue. The prosecution have to prove that he had an imitation firearm in is possession."

He continued by reminding the jury of the strength of the evidence that the man, whoever he was, had a gun in his possession, and then moved on to the third issue on that charge, intent. This is what he said, starting page 7, of the transcript:

"There is another element which has to be proved and that is the intention by means of the imitation firearm to cause another person to believe that unlawful violence would be used against them or another. That is the third element. The first is the overriding issue, was it this man? The second is are you satisfied so you are sure that the three eye witnesses correctly identified something which at least resembled a gun? The third matter is was the possessor of that gun, if that is what you find the position to be, having it with him with the intention to cause others to believe that unlawful violence would be used? Again that may not be such a difficult task as deciding whether it was this defendant who was the man at all because if somebody threatens others with a gun and points it at them for sometime it may be reasonable to infer, though it is a matter for you, that he intended the people whom he was poking the guns towards to believe that the gun would be used, in other words that unlawful violence would take place. There is a further aspect of this. It must be proved that the defendant (if it is him) intended that others should think that unlawful violence would be used against them or others. The defendant was to some extent (and this is common ground) the worse for drink. How does that affect this issue? If he was so far gone in drunkenness that he never appreciated what he was doing and intended to frighten others then although it would be unmeritorious it would be a perfectly good defence in law to Count 1 because the prosecution have to prove a specific intent that he did intend others to be frightened in this way. The law says this, first of all, the mere fact that a defendant's mind is affected by drink so that he acted in a way which he would not have done had he been sober does not assist him at all provided that the necessary intention remained. A drunken intention is nevertheless an intention and if you stop to think about it you will think that it is good commonsense as well as good law. Many a crime is committed by a man who has taken drink and lost his inhibition, and I hope in this slightly national case I shall not insult anybody if I remind you of a well-known term, Dutch courage. Subject to this, you must have regard to all the evidence, including that relating to drunkenness, to draw such inference as you think proper from the evidence and ask yourselves ultimately whether you feel sure that at the material time, the time he was poking the gun, he did have that intention. In other words, the drink had gone beyond making him behave in an uninhibited way and he really did not appreciate what he was doing at all so far as trying to frighten people."

As if that direction on the additional requirements necessary to establish the firearms charge were not sufficient he went on, when directing the jury about the offence of affray, to re-emphasise the difference between the two offences on the matter of intent. At page 10 of his summing-up he said this:

"The question of him being intoxicated is irrelevant in Count 2. It is only relevant in Count 1 if he is so intoxicated that you think it is unsafe to infer that he did intend violence but you do not have that consideration at all in the second count so even if he did have a gun but you were not satisfied he had the intention to another person that unlawful violence would be used against them or another, then Count 2 would apply on that basis because also there, there is no requirement for the Crown to prove an actual intention on his part."

It follows, in our view, that the jury on that proper direction and having regard to the evidence must have concluded that the appellant was the man who caused the affray, that he had an imitation gun or gun when he did it but that in his drunken state he did not intend to cause others to believe that he would use unlawful violence against them. They could have formed the view that he was just a drunken man behaving foolishly, as drunken men do, with little or no thought to the consequences of his behaviour on other people and so lacking the specific intent required to constitute the offence. Our view, therefore, is that the verdicts are not inconsistent. They are verdicts which meet the Durante test. verdicts which a reasonable jury applying their minds properly to the facts in the case could have reached.

As to the second ground of appeal, relating to the identification of the appellant when he was brought back to the scene in the police car, the question is whether the judge should have excluded that evidence under section 78 of the Police and Criminal Evidence Act 1984, as unfair. The judge was undoubtedly exercised about the reliability of this identification evidence for obvious reasons. It lacked all the protection of the identification code D and in particular the stringent safeguards of an identification parade conducted in accordance with the requirements of that code. Witnesses of incidents occurring only shortly before might be predisposed to identify someone brought by the police to the scene sitting hand-cuffed in a police car. However, as we have mentioned, the judge considered the three cases to which we have referred before rejecting the submission that this evidence should be excluded. In brief, the cases were ones of informal identification of a similar sort, at or close to the scene of an offence and shortly after it had occurred. The judge, having looked at those cases, took the view that the admission of the evidence would be proper though its weight would be a matter for the jury. By the term "proper", the word that he used, this very experienced judge clearly must have meant not unfair.

As Mr Raymond has summarised the cases, they were all cases of scene or near scene identification and shortly after the crime. He suggested that their rationale seems to have been, at least in part, that to give witnesses of such circumstances an immediate opportunity, by confrontation or otherwise, to identify the perpetrator, is not necessarily unfair. In Oscar, Lord Lane, then Chief Justice, said that when a suspect is found within a short time of the crime in suspicious circumstances and close to the scene, it might be that formal identification under Code D was unnecessary and that the best course might be for the police to take the suspect to the witness to find out whether the witness identified him as the offender.

Whilst accepting that rationale, Mr Raymond has submitted that the three cases are distinguishable from the present one because in them the clothing of the perpetrator and of the accused was the sole or main distinguishing feature. That was certainly so in Kelly and Oscar but not in Rogers where the two witnesses identified the accused when he was differently dressed from the man whom they had seen committing the offence a short time before. In any event, clothing played an important part in the case before us, in particular the appellant's black T-shirt with the memorable and colourful motif on the front.

As Professor D J Birch observed in the editorial commentaries in Oscar and Rogers, and also more recently in another case cited to us by Mr Raymond, R. v. Hickey (1996) CLR, 584, it would be unfortunate if different rules applied to identification of clothing and identification of a person. The true distinction is between informal and formal identification, and the test in either case is whether admission of the evidence would be unfair. In cases such as this, important factors going to the fairness of the course adopted by the police are that identification is an integral part of the immediate investigation, that it takes place very shortly after the commission of the offence and that it takes place close to the scene of the offence. The judge must have had all these factors in mind as a result of the authorities cited to him. He clearly did not consider the evidence to be unfair otherwise he would have excluded it in the exercise of the discretion given to him under section 78 of the 1984 Act.

From the passage towards the end of the judge's ruling, at page 4F to page 5A, he used words which make plain that he viewed the treatment of the matter by the police in the circumstances as a sensible and practical manner of investigating the recent incident and of immediately determining whether they had got the right man or whether the true offender was still at large. In such a case, particularly as the quality of the identification evidence was good, he was, in our view, entitled to form the view that admission of the evidence would not be unfair. We should add that his directions to the jury on the identification evidence were comprehensive and more than fair to the appellant, and that there was much other evidence, which we have summarised, pointing inevitably to the appellant as the man with the gun in Burgen Square. Even if we had reservations about the judge's decision not to exclude this evidence, the totality of the evidence of the prosecution leaves us with no doubt as to safety of the conviction. Accordingly, this appeal is dismissed.

MR RAYMOND: Your Lordships are aware there seems to be this grey area (Inaudible) and indeed the Courts decisions which are referred to refers to the need for the code to clarify this informal procedure and I would invite your Lordships to consider whether this is a matter of public importance to grant leave to appeal on that aspect.

LORD JUSTICE AULD: Thank you, Mr Raymond. Is there anything you would like to sat about that?

MR AINA: I have no observations. I have seen no question drafted for me to cast my eye on. I therefore reserve my position until I see perhaps an appropriate question drafted.

LORD JUSTICE AULD: Mr. Raymond, we do not consider that this is a case for certification of a question for their Lordships.