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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 >> LS & Anor v R [2002] EWCA Crim 1327 (31 May 2002) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2002/1327.html Cite as: [2002] EWCA Crim 1327

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SHEFFIELD CROWN COURT
(Mr Recorder Brodwell)

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st May 2002

Lord Justice Potter :

1. At about 9.25am on 7th February 2000 a robbery occurred at the RSVP Club in Sheffield when the manageress, Gayle Stephens, was dispossessed by two men of the Club's weekend takings of £10,870. It has never been in question that such a robbery took place; the issue has always been the identity of the robbers.
2. On the 19th February 2001 at the Crown Court at Sheffield before Mr Recorder Brodwell LS and OW were each convicted of that robbery ( LS by a majority of 11-1). LS was sentenced to five years imprisonment and OW to six years imprisonment consecutive to a sentence of six years and five months imprisonment recently imposed on him by the Crown Court at Manchester also for an offence of robbery. Each appeals against conviction by leave of the single judge who referred to the full court the applications for leave to appeal against sentence. At the hearing of this appeal Counsel for the appellants signified their consent to the hearing being treated as the hearing of the appeal against sentence in the event of leave being granted. The court reserved judgment on all matters.
3. The substance of the case against each appellant was different, but relatively straightforward. In respect of LS it was alleged that he was identified by a tutor at his college, Miss H, from two still photographs taken from video footage of the premises during the robbery. The stills were far from clear but Miss Hy, who had known LS for seven months by then, said that she recognised him. An expert in facial mapping, Caroline Wilkinson, could not reach positive conclusions. In interview with the police LS acknowledged that he was the man in one of the stills and this admission was relied on by the prosecution as an admission of his presence in the Club at the time of the robbery.
4. Apart from the manageress, at least two other members of staff witnessed the robbery, one describing one robber as having a 'north-west accent' and one, Craig Orton, purporting to identify OW. It was the Crown's case that, about an hour and a half later, the two robbers were buying new clothes in 'Boatworld', a clothes shop, and changing into them on the premises. OW admitted that he was one of the men but said he was not with LS. LS (a man of mixed race) denied it. The shop assistant, Stephen Copley, not only failed to pick out LS at an identification parade but positively identified a white volunteer; indeed, Mr Copley had always maintained that it was a white male who was with OW. On the other hand, he described that man as wearing a dark grey Russian-style hat with ear flaps which was the sort of hat shown on the still photographs as being worn by the man identified as LS. OW in interview denied being one of the robbers but did not mention, until he gave evidence at the trial, an alibi to the effect that he was at the time in the company of a man called Curtis (a man with many convictions) who OW said was the man with him at 'Boatworld' after the robbery.
5. What appeared at first sight to be a relatively simple factual matter gave rise in the trial to a number of significant problems which confronted the Recorder. First he had to deal with the issue of LS's interview which the defence sought to have excluded on grounds that he was a young man of very restricted intellectual function and educational difficulties. In the end the Recorder ruled that his interview was admissible subject to the excision of LS' s specific admission that he was the man on the video stills. The Recorder also had to deal with Galbraith submissions at the close of the prosecution case. When he came to his summing-up he had to deal with LS's intellectual impairment, and in the case of each defendant with questions of identification, and of the adverse inferences which might be drawn from lies and/or a false alibi, as well as the adverse inference which might be drawn from OW's first mention of Curtis at trial.
6. In admirably succinct and cogent submissions on the hearing of this appeal, counsel have substantially refined the issues required to be determined by this court. On behalf of LS it is contended that the real vice in the trial lay in the admission of his interview. Once it was in, for reasons we elaborate below, it was inevitable that, despite the exclusion of LS' s admission that he was the man in the video stills, it would be used by the jury to support the identification; and, if it were wrongly admitted, its admission necessarily renders the conviction unsafe. On behalf of OW it was contended that the Recorder failed to give a direction in relation to any lies told (or found by the jury to have been told) by OW and further that he did not give a full direction as to the adverse inferences capable of being drawn under section 34 of the Criminal Justice and Public Order Act 1994.
7. The prosecution case in respect of LS is that the interview was properly allowed in (subject to the exclusion directed by the Recorder) and that, in any event, even excluding the interview, the conviction is safe. The same contention is advanced in respect of OW, albeit counsel for the Crown recognises that the two specific omissions from the Recorder's summing-up cannot be gainsaid. We confine our judgment in the appeals to those issues.
8. The Recorder was asked to rule the whole of LS's interview inadmissible. It was a matter which he approached with great care. He heard the evidence of an experienced clinical psychologist Mrs Elizabeth Watson. As a result he made the following findings. LS was a young man with an IQ of 65 and with moderate learning difficulties; he was someone with an intellectual capacity in the bottom 3% of the population. He had a high degree of suggestibility. He would, however, have strategies which would camouflage his learning difficulties (the Recorder found that the interviewing officers had no grounds to suspect their existence) but his thinking would be concrete and very limited. He would not be willing to indicate that he could not understand questions and would be very vulnerable without the presence of 'an appropriate adult'; he may well not have linked his admission to being the man on the still with that of being the robber. The Recorder, correctly in our view, treated that admission as a confession and so addressed himself to section 76 of the Police and Criminal Evidence Act 1984. Moreover, since he concluded that 'an appropriate adult' should have been present and thus there was a breach of Code C, he also had in mind Section 78 of the same Act. The Recorder then formulated the issue as follows:

"I have to determine, it seems to me, the question: was the Defendant aware of what he was being asked? Was he answering it in a state of proper awareness of the implications of the question? It seems to me that the presence of an appropriate adult generally at interview is irrelevant in relation to the reliability of the answers having regard to that question, because the questions were clearly put. I have heard the tape of the interview. Mrs Watson agrees that there is nothing from that which would suggest that the Appellant did not understand what was being asked, although that, of course, is not the question."

He concluded that the reference to the photographs and LS' s admission that he was depicted in one of them should not be admitted, but he added:

"However, I am of the view that the other matters which are raised in the interview, including his presence in the building at that time and his reason for being there and the circumstances relating to it, are perfectly admissible."

9. The fundamental complaint made is that in essence the Recorder asked himself the wrong question by simply asking whether LS's answers were reliable or not. Counsel invited our attention to the cases of Cox [1991] CrimLR 276, Kenny [1994] CrimLR 284 and Haroon Ali [1998] EWCA Crim 4530 where the earlier authorities are cited. In Kenny the court makes clear the correct question: Whether the confession, true or not, was obtained in consequence of anything done which was liable to render any confession unreliable, the burden being on the prosecution to prove beyond reasonable doubt that it was not so obtained. It is contended here that the answer which the Recorder gave to the question he asked himself was not, on the evidence, the correct answer to the question which he ought to have asked himself. The prosecution had not therefore demonstrated that which was required of it.
10. We have read and considered with care the records of interviews in relation to LS which together total about one hour. In ordinary circumstances the questioning would be unexceptionaable but it is persistent and in some parts suggestive. It contains two admissions highly material to the trial. The first is the actual admission that LS was the man in the photographs, which the Recorder excluded. However, the second relates to the admission (which the police thereafter assumed and treated LS as making) that he was in the premises on the day of the robbery. In that connection, however, LS stated that his reason for being at the premises was that he regularly went to use the toilet in the club on those days when he went to college nearby, because he did not care for the ones at his college. So far as that explanation was concerned, it is clear that he only went to college on Wednesday, Thursday and Friday; thus because the robbery was on a Monday, insofar as he was admitting being at the premises, it was not, as the police (and later in cross-examination prosecuting counsel) interpreted it, an admission of being at the scene on the day of the robbery; more an assertion to the contrary. The misunderstanding which, with hindsight, it is clear developed and pervaded the police interview, was of such a kind as would have been likely to have been avoided by the presence of an appropriate adult.
11. This court is reluctant to differ from the ruling of an experienced Recorder which was made with great care and a conspicuous concern to do justice to both sides. Nevertheless when we read the course of the interview and consider the impression that it has created in us, and we add to that the findings made about LS on the basis of the psychological evidence, coupled with the absence of an appropriate adult, we find ourselves bound to conclude that the prosecution has not demonstrated beyond reasonable doubt that the confession (for that is what overall it appeared to be) was not obtained in consequence of anything likely to render it unreliable. It follows that, in our view, the learned Recorder should have ruled the whole interview inadmissible.
12. Does that mean that this conviction is unsafe? The prosecution contends that the identification of LS from the stills by the college tutor remains compelling. He submits (and we agree) that this cannot be compared with a 'fleeting glimpse' type of case. It is also argued (and we also agree) that the summing-up was otherwise full and fair in respect of LS. Nonetheless, it is plain that the Recorder, in a careful direction, allowed the jury to use the apparent admission, and any subsequent lies which they inferred had been told as a result, as supporting evidence of guilt. It is impossible for us to say that it was not that support which proved decisive in the jury's mind. We thus feel bound to conclude that the conviction is unsafe and must be quashed,
13. The issues in relation to OW are somewhat starker. It is common ground that the Recorder's summing-up did not include the usual full direction under section 34 (above) and did not contain a Lucas direction specific to OW. Mr Singh acknowledges frankly that he failed to draw those shortcomings to the attention of the Recorder, but he is not thereby prevented from submitting that they are fatal to OW's conviction. The prosecution submits that notwithstanding those failures, on a fair reading of the whole summing-up, and taking into account the Lucas direction which was given in respect of LS, the jury would have been well aware of the issues which they had to keep in mind and that, even had those directions been given, the jury's verdict would inevitably have been the same.
14. We acknowledge the groundswell of concern amongst many trial judges in the Crown Court at what is seen as the ever-increasing number of warnings that have to be given to juries even in factually straightforward cases. It is not simply that room for error consequently increases but rather that, in a comparatively short case, the necessity for, say, a self defence direction, a Lucas direction and a Section 34 direction may be misread by a jury as a simple invitation to acquit. The summing-up in a strong case may thus become unbalanced, and succinct and lucid exposition of the real issues becomes ever more difficult. That is a concern which we fully understand. On the other hand it has to be balanced by the necessity for the jury to receive from the judge an exposition of the principles which they are to apply as a safeguard against faulty reasomng.
15. We have accordingly re-read with care the summing-up of the Recorder and sought to hear it as the jury might have heard it. Certainly it was scrupulously fair and it contained a lucid and balanced summary of the evidence. It also gave a full and fair direction on the issues of identification. However, the only Lucas direction given was given early in the summing-up and solely in relation to LS's evidence. At no stage was such a direction given in respect of OW's case, which was dealt with by the judge much later in the summing-up. Moreover, the Section 34 direction in respect of Walcott was manifestly defective in its omission of the final part. The omission there was compounded by the Recorder's direction that failure to advance his alibi earlier could support the identification of OW, as could his lies. We have in mind the emphasis that this court has placed on the giving of a full direction in circumstances such as these - see e.g. Ghilwan Ab Doulah [1998] EWCA Crim 3455. Once again, it is not possible to be sure that these matters were not decisive in the jury's verdict and it follows that the conviction of OW must also be quashed.
16. We wish to express our considerable sympathy with the Recorder, in a case which he approached with care but which turned out to be of some complication. He did not, in the aftermath of his summing-up, receive the assistance from counsel to which he was entitled, as counsel has candidly acknowledged. Nonetheless for the reasons we have given, the appeal must be allowed.
17. Given the basis for our decision to quash their convictions, we are of the opinion that justice dictates that there should be a retrial of both appellants. The evidence will not have weakened with the passage of time given the nature and circumstances of the identification relied on. There is no reason why the appellants should not be required to face a retrial of this serious charge notwithstanding that the case against LS will be considerably less powerful. The case should be reheard at a location to be decided by the Presiding Judge as soon as possible. OW is in any event serving a sentence on another conviction. LS should remain in custody with liberty to apply for bail if any substantial delay is likely to occur. In the event, the applications for permission to appeal against sentence do not require further consideration.
18. In sum therefore, we allow the appeal and quash the convictions of both appellants. We direct that a fresh indictment be preferred, the appellants to be re-arraigned on the fresh indictment within two month, both of the appellants being held in custody meanwhile. We also direct that legal aid be granted for the retrial in each case.