B e f o r e :
LORD JUSTICE HENRY
MR JUSTICE GOLDRING
and
MR JUSTICE TOMLINSON
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| | REGINA
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| | Oluyomi Ogundipe
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(Transcript of the Handed Down Judgment of
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Ms Sharon Holloway (instructed for the Appellant)
Piers Wauchope Esq (instructed for the Respondent)
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HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
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Lord Justice Henry:
This is the judgment of the Court. On 21st September 2000 in the Crown Court at Snaresbrook before Mr Recorder Hay and a jury the appellant was convicted of an offence of obtaining property by deception. On the 19th October 2000 the appellant was sentenced by the same Judge to a Community Service Order for 200 hours. The appellant was also ordered to pay £400 compensation and £700 towards the cost of the prosecution.
He now appeals against conviction by leave of the Single Judge (on a limited basis – Grounds i & ii only. He renews his application on Ground iii and we grant that application.
The Grounds of Appeal read:
“i That the Learned Recorder erred in admitting identification evidence, namely an identification parade, when the identification parade was contaminated by comments and laughter in such a way as to make it manifestly unfair and unreliable. In particular, the Learned Recorder took the view that the interference with the parade complained of had not influenced the demeanour of the parade volunteers as far as he could see. ... The Learned Single Judge (and Court) is invited to inspect the said video, which does show the volunteers’ demeanour affected.
ii That the Learned Recorder misdirected the jury in failing to give a complete Turnbull direction concerning the approach to false alibis. See R -v- Lesley [1996] 1 Cr App R 39. ...
iii That the Learned Recorder failed to direct the jury in how to approach the issue of lies (if they rejected the alibi) in accordance with R -v- Lucas [1981] 73 Cr App R 159. See also R -v- Goodway [1994] 98 Cr App R 11.”
On 25th August 1999 a man (alleged to be the appellant) telephoned a company called Auto Manor and ordered a stereo system and a vehicle immobiliser. The goods were paid for using ‘cloned’ credit card details in the name of Anthony Thompson. Arrangements were made for delivery to take place on the 27th August 1999 to the appellant’s address. On that date an employee of Auto Manor, Paul Jarvis, arrived at the address and handed over the stereo system and an invoice to the man (alleged to be the appellant) who answered the door without checking who he was. It was not in dispute that Paul Jarvis spent the next 2½-3 hours fitting the immobiliser to the appellant’s car. The man was in his presence for a large part of that time.
On 21st February 2000, Paul Jarvis attended an identification parade and picked out the appellant as the man at the scene. That identification parade was to some extent disturbed by noises off and laughter from the volunteers in waiting. Those noises off constitute the first ground of appeal. The judge found that they did not interfere with the fairness of that parade, and so left the issue to the jury. They clearly agreed with him. But, on any showing, the identification parade was not as one would have wished it.
It was the defence case that the identification of the appellant was mistaken. The appellant denied that he had telephoned Auto Manor on 25th August or that he had accepted delivery of the goods on the 27th August. He did not have the stereo set and although the immobiliser had been fitted to his car, that had been arranged as a gift by a man he referred to as his brother, who was visiting from America at the time. He had no idea that false credit card particulars had been used. The appellant’s defence for the 27th August 1999 was one of alibi. He was said to be in Liverpool with two friends on that date, visiting his then girlfriend.
The essential issue for the jury was whether the appellant had been correctly identified by Paul Jarvis as the man at the scene when the immobiliser was fitted. The description Jarvis had given at the time was relatively non-specific (“... black, about 6 feet tall, with something of a moustache ...”) and where it referred to detail (a missing or twisted tooth), the appellant did not have any such visible characteristic.
There was undisputed evidence before the jury from a Mr Ginsborough of Auto Manor that the goods were ordered and paid for by telephone on the 25th August 1999 by a man purporting to be Anthony Thompson. A witness statement from Mr Gomez of the Royal Bank of Scotland was read to the jury to the effect that the credit card details used to pay for the goods were false. The prosecution case was that it was the appellant who made the phone call and who was present at the scene. That case depended to a very large extent on the correctness of Paul Jarvis’ positive identification of the appellant at the identification parade.
The defence statement gave notice of an alibi. It referred to the appellant being either on his way to Liverpool or in Liverpool on the 27th August 1999 and stated
The names and addresses of alibi witnesses will be provided to the Crown as soon as reasonably practical”
No such information was given before the trial. At the trial the defence called one alibi witness, called Eitidu. He had previous convictions for deception and dishonesty. There was no reason why the appellant should not have provided the witness’s address earlier. He had not given his then girl-friend’s name and address because they were no longer seeing each other, and she would not have had a good word to say for him. He himself gave evidence in support of his alibi.
The judge summed up the identification evidence correctly, and also dealt accurately with the appellant’s failure to give timely particulars to support his alibi. But the judge did not give either part of the standard Judicial Studies Board specimen direction relating to alibis, and the linked question of lies told by the defendant. We are told that defence counsel requested the full Lucas (above) direction dealing with the “forbidden reasoning” that lies indicated guilt, but the judge agreed with Crown counsel that no such direction was needed.
It seems to us that this was a case where the full alibi direction should have been given.
The Judicial Studies Board specimen direction for alibi reads as follows:
“The defence was one of alibi. The defendant says that he was not at the scene of the crime when it was committed. As the prosecution has to prove his guilt so that you are sure of it, he does not have to prove he was elsewhere at the time. On the contrary, the prosecution must disprove the alibi.
Even if you conclude that the alibi was false, that does not by itself entitle you to convict the defendant. It is a matter which you may take into account, but you should bear in mind that an alibi is sometimes invented to bolster a genuine defence.”
Here, the judge omitted to direct the jury that it was for the Crown to disprove the alibi, and that an alibi was sometimes invented to bolster a genuine defence. In dealing with the alibi, the judge concentrated on the defendant’s failure to comply with his undertaking to provide the names and addresses of his alibi witnesses to the Crown as soon as possible. He did not do that until trial. The reason for requiring the defendant to make timely disclosure is to enable the police properly to investigate the alibi.
The judge directed the jury that they were entitled to disbelieve the defendant as to his alibi. The reasoning went:
a) the defendant could have given this information to the Crown;
b) as he should have given it and was able to give it, they could draw such inferences as they thought proper;
c) while failure to give it could not on its own prove guilt, it could be taken into account when deciding as to the truth of his evidence about his not being the man present when the immobiliser was fitted;
d) if they were sure that the alibi was made up to deceive them, then that supported Mr Jarvis’s identification of him - though the fact that his evidence was false would not prove he was the man who was there. It was just a factor.
Given that the Crown were to ask the jury to adopt that reasoning, it made it quite essential that the jury, as a necessary corrective, should be reminded that the onus of disproving the alibi remained with the prosecution.
The next point at issue is whether a Lucas lies direction (as found in the second paragraph of the JSB alibi direction) was necessary in this case.
Usually, such a direction is necessary in alibi cases (see for example, R -v- Lesley (above). That is particularly so where, as here, the case turns on visual identification. Now it is right that no such direction is required if the inevitable consequence of the jury having found that the defendant has lied is that he is guilty. But that is not this case, because it is not safe for the jury to conclude that a concocted alibi means guilt. Judge LJ vividly explained, in R -v- Middleton [2000] Cr LR 251, why that assumption was so dangerous:
“People do not always tell the truth. Laudable as it may be to do so, whatever the circumstances, they do not, or cannot, always bring themselves to face up to reality. Innocent people sometimes tell lies even when by doing so they create or reinforce the suspicion of guilt. In short, therefore, while lying is often resorted to by the guilty to hide and conceal the truth, the innocent can sometimes misguidedly react to a problem, or postpone facing up to it, or attempt to deflect ill-founded suspicion, or fortify their defence by telling lies.”
This is an occasion where the Lucas direction should have been given. In all the circumstances, the summing-up did not offer the appellant the protection it should have had.
We return to the first ground of appeal. As indicated in paragraph 5 of this judgment, the identification parade was less than perfect because of the inappropriate noise while it was being conducted. We are doubtful whether we would have set aside this conviction if that were the only ground of appeal. But in the circumstances, taking everything into account, it seems to us that this conviction must be quashed.
