No. 1999/06664/W2
BAILII Citation Number: [2000] EWCA Crim 102
IN  THE  COURT  OF  APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London WC2

Tuesday  24  October  2000
B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(The Lord Woolf of Barnes)

MR  JUSTICE  ALLIOTT
and
MR  JUSTICE  BELL
 - - - - - - - - - - - - -

REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION

UNDER  SECTION  9  OF

THE  CRIMINAL  JUSTICE  ACT  1995

R E G I N A

- v -

HAROLD  ROBERT  JOHNSON

- - - - - - - - - - - - -

Computer Aided Transcription by
Smith Bernal, 180 Fleet Street, London EC4A
Telephone No: 0171-421 4040
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - -

MR S FIELD appeared on behalf of THE APPELLANT
MR B HOULDER QC and MR G PATTERSON appeared on behalf of THE CROWN
- - - - - - - - - - - - -

J U D G M E N T
Tuesday  24  October  2000
1.	THE LORD CHIEF JUSTICE:  On 27 May 1968, at the Central Criminal Court, the appellant, Harold Robert Johnson, was convicted of robbery with aggravation and sentenced to eight years’ imprisonment. At trial the appellant represented himself, although he could have had legal representation if he had wished to do so. Leave to appeal against conviction and sentence was refused by the single judge on 27 August 1968. His renewed application for leave was refused by the full court on 5 November 1968. His application for legal aid was also refused. The full court (presided over by Lord Widgery CJ) gave a detailed judgment relating not only to the appellant, but to other co-appellants who had been convicted of the same offence. The case has been referred to us by the Criminal Cases Review Commission under the Criminal Appeal Act 1995. 
2.	The case for the prosecution at the trial was that the appellant was one of three men (the others being Mr Keegan and Mr Basie) who had committed armed robbery at a post office in Burnley Road, Willesden, at around 5pm on 5 January 1968. Two men had entered the premises as stock‑taking was being carried out. While one kept an assistant covered with a gun, the other raided the office, filling a holdall with post office property and a sum of £350. A third man was waiting outside in a Jaguar motor car. When his accomplices returned to the vehicle, they sped away from the scene. The case for the prosecution was that the third man who had been waiting in the motor car was the appellant.
3.	The appellant’s conviction was almost entirely based upon the identification evidence of Mrs Pintus, a resident in Burnley Road. She identified the appellant as the man who had been sitting waiting in the Jaguar car. The prosecution also relied on the evidence of two police officers who subsequently stopped a different car from the Jaguar, in which the appellant was a passenger. In that car was found property belonging to the post office which had clearly been obtained during the robbery.
4.	The appellant’s case can be summarised shortly: the identification evidence was mistaken and of doubtful quality; although the stolen property had been found in the car in which he had been travelling, it was not on his person and there was no reason to link that property with him; he had merely been a passenger in the vehicle. Further, he gave evidence at the trial that at the material time he had been speaking on the telephone with his sister, Mrs Richardson (now Mrs Warnes) telling her the outcome of a visit which he had made earlier that day to a solicitor on her behalf. He referred in his evidence to a letter which was written by the solicitors, which would enable the day of that conversation to be established. However, at the trial he did not produce that letter. Nor did he call Mrs Richardson to give evidence. This may be but one example of the problems that he had in representing himself. If necessary, it would have been open to us to hear evidence from that lady and to see the letter written by the solicitor.
5.	On his appeal to the Court of Appeal on the first occasion, the appellant relied on a number of detailed grounds which revolved mainly around the question of identification. One of the grounds related to an identification parade. The appellant alleged that after two nights in police custody he was placed on a parade where he was identified by Mrs Pintus. However, he contended that he stood out because of his unshaven appearance and that the others on the parade were of a different age.
6.	Further, he claimed that he was not able to drive and therefore could not have been the driver of the get‑away vehicle. When he gave evidence to that effect at his trial, the Crown called an officer who said that on one occasion he had seen the appellant getting into a vehicle, which he described. That evidence was linked (although the jury were not aware of this) to a conviction which the appellant had of taking and driving away a motor vehicle. However, no one has so far checked whether the appellant was correct in saying that he had no driving licence to drive a car and that his only licence enabled him to drive a small scooter‑type vehicle.
7.	The Criminal Cases Review Commission now makes an application to this court which is in similar terms to the grounds previously raised by the appellant. They also raise the position with regard to Mrs Pintus’ evidence. Mrs Pintus had made a number of statements. She had attended at the identification parade. There is some conflict (and possibly confusion) as to when the appellant first had copies of Mrs Pintus’ statements. Had it been necessary, the Crown could have called before this court one of the officers involved in the case to give evidence as to the serving of statements on the appellant. However, it appears clear from the transcripts of the trial that the appellant did not have the detail of those statements in mind and was therefore not able to deploy the material contained in them in a way in which a trained advocate would have done.
8.	The grounds of appeal relied on by the Commission set out with clarity the chronology of Mrs Mr Pintus’ identification. It will be sufficient for present purposes to refer only to those parts of her statements which are highlighted in those grounds of appeal. In her first statement made on 5 January 1968, Mrs Pintus said:
“I am willing to help but I don’t think I would know him again.”  
9.	She also referred to the fact that he was about 40 years of age and had a round face and she described what he was wearing. 
10.	The next matter to which it is necessary to refer is what happened on 2 March 1968 at Harlesden Police Station. At the identification parade, Mrs Pintus, having pointed Mr Johnson out, said, “I’m not quite sure”. Johnson then said, “Shall I speak?”  The officer said to Mrs Pintus, “Do you want to hear him speak?”  She replied, “I only saw the driver and he was similar”. Mrs Pintus then left the room.
11.	In her statement dated 6 March 1968, Mrs Pintus said:
“I picked out a man who I think (our emphasis) was the driver of the Jaguar car which was involved in the robbery on 5 January 1968. I am quite certain that the man I picked out was the man I saw on 5 January 1968.”  
12.	Two police officers, recounting what Mrs Pintus said, recorded in their statements dated 6 March 1968:  
“Mrs .... Pintus identified Johnson as similar in appearance to a man she had seen at the robbery....”  
13.	According to the officers, she went on to give a similar description as before. 
14.	Next, Mrs Pintus made a deposition dated 29 March 1968. In old‑style committal proceedings, she gave evidence and was cross‑ examined by Mr Johnson. In the deposition she said:
“It was dark at the time and street lighting was on. There was a Jaguar parked a short distance away from the Post Office on the same side of the road. The inside light was on, there was someone in the driver’s seat. The car was parked right outside my front door. I recognise the defendant Johnson [in the dock in the magistrates’ court] as the driver of that car. .... I stared at the driver and he stared back at me.”  
15.	Mrs Pintus gave evidence at the defendant’s trial. She was asked:  
“Q. Will you look around, Mrs Pintus, and tell us if you can see that man [the driver] here today?  
A. Yes. 
Q. Just point to him will you?  
A. In the middle. 
Q. That is Johnson [was the response]”. 
16.	Therefore her identification at the trial and at the magistrates’ court was in firmer terms than previously. 
17.	The fact that Mrs Pintus over a period of time was more positive in her identification, particularly both at the magistrates’ court and at the trial, is not a matter of surprise. It is common experience that a witness who is perfectly honest can become more positive in their identification as time passes, when it is well known that identification becomes more difficult after a lapse of time. In particular, if someone is seen in the dock of a court and is identified, or if the person is identified on an identification parade, it is very easy subsequently not to be identifying the person originally observed at the scene of the crime, but the person seen in the circumstances just described. For that reason the practice of identification at court is now frowned upon. Dock identifications are not normally to be permitted in the course of proceedings.
18.	The approach of the courts to identification has become much stricter than it was in 1968. In particular, juries now have to be carefully warned as to the proper approach to identification evidence. The more strict approach is associated with the decision of this court in R v Turnbull [1977] QB 224. That case laid down guidelines which judges are required to follow in cases involving disputed identification evidence. The judge conducting this trial in 1968 was not required to give those warnings. However, over the intervening years prior to the Turnbull decision, it has been the courts’ experience that identification evidence should be subject to particularly careful scrutiny. The reason for that is because a perfectly honest witness could believe, and become increasingly convinced that they were right in so believing, that they had identified the right person when subsequently it could be shown in other ways that they had in fact made a mistake and identified the wrong person. Today if a judge were to fail to give a jury the Turnbull direction, then normally a conviction would be regarded as being unsafe if identification was in issue. That is clearly established by R v Beckford (1993) 97 Cr App R 409; R v Bowden [1993] Crim LR 379; and R v Farquarson (1993) 98 Cr App R 398.
19.	Had the appellant been represented, he would have had the advantage of counsel pointing out to the jury the way in which Mrs Pintus’ evidence had over a period of time become stronger and stronger. Counsel would no doubt not have suggested that she was dishonest in any way, but would have pointed out that it showed that her evidence was to be treated with caution. She had not initially been sure; her initial reactions to the identification were more likely to be reliable than her subsequent reactions; and this meant that the only evidence against the appellant was not as reliable as it should have been to establish his guilt.
20.	In summing‑up the evidence, the judge was dealing with a case which involved with three co‑accused. He dealt with the evidence against each one separately and drew attention to the importance of the identification evidence. But he did not draw attention to the changes in the evidence of Mrs Pintus in the manner which would be thought necessary today.
21.	The appellant has throughout denied his responsibility for this offence. He has sought on every opportunity to have the matter reopened so that he could establish that his conviction was unsafe and one which therefore should be set aside.
22.	There are other matters on which he relies, but in the judgment of this court it is not necessary to go into them. Having had the opportunity of looking at the whole of the material which is before us today, we are satisfied that this conviction is unsafe. In deciding whether the conviction is safe or unsafe we have to apply the standards which are considered appropriate today. Neither the judge nor those who conducted the prosecution can be criticised for not applying those standards. With the passage of time, the court’s experience causes it to improve on its approach to difficult issues such as identification. The approach therefore that this court must adopt when a case is referred back to it after this period of time is that which we now apply. This matter was considered in R v Bentley (CA 30.7.98). In giving the judgment of the court, allowing the appeal, Lord Bingham CJ said:
“Rarely has the court been required to review the safety of a conviction recorded over 45 years earlier. In undertaking that task we conclude:  
(1) We must apply the substantive law of murder as applicable at the time, disregarding the abolition of constructive malice and introduction of the defence of diminished responsibility by the Homicide Act 1957. 
(2) The liability of a party to a joint enterprise must be determined according to the common law as now understood. 
(3) The conduct of the trial and the direction of the jury must be judged according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act. 
(4) We must judge the safety of the conviction according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act. 
Where, between conviction and appeal, there have been significant changes in the common law (as opposed to changes effected by statute) or in standards of fairness, the approach indicated requires the court to apply legal rules and procedural criteria which were not and could not reasonably have been applied at the time. This could cause difficulty in some cases but not, we conclude, in this. Where, however, this court exercises its power to receive new evidence, it inevitably reviews a case different from that presented to the judge and the jury at the trial.”  
23.	In R v Gerald (CA 3.11.98) the Vice‑President said:  
“On behalf of the appellant, Mr Thomas submits that any Crown Court judge, called upon to deal with the facts of this case, would have excluded from the jury’s consideration the terms of the appellant’s interviews. If he had failed to do so, the Court of Appeal would have quashed any consequential conviction. He submits, and we accept, that the approach of this Court to this matter should be that enunciated by Glidewell LJ in R v Ward (1993) 96 Cr App R 1, at page 23:  
‘In deciding whether a verdict is “safe and satisfactory” for the purposes of s.2(1)(a), or whether there has been a miscarriage of justice for the purposes of the proviso, we must clearly take account of all of the knowledge and experience which is available to us in 1992 [the date when that case was before the court]. But in order to determine whether there were material irregularities in the course of the appellant’s trial in 1974 we must, as it seems to us, apply as best we can the standards of what was considered to be proper and regular at that time.’  
Allowing for the amendments which have subsequently been made to section 2 of the Act by the Criminal Appeal Act 1995 that, as it seems to us, is an appropriate approach when determining, as now we must, whether the appellant’s conviction is properly to be regarded as safe.”  
24.	The decision of this court in Bentley was commented upon by a distinguished academic who suggested that if the approach indicated by Lord Bingham CJ was followed, then this court could be swamped with applications from many years past suggesting that convictions were unsafe when at the time they were perfectly proper. We consider that those comments were unnecessarily pessimistic. There has been no such flood of cases before this court. 
25.	We do not regard the approach of this court in Gerald as watering down what was said by Lord Bingham CJ in Bentley. The Act makes it clear that today we are only concerned with the question of whether a conviction is safe or not. However, in determining whether a conviction is safe, regard has to be had to the procedures which were followed at the trial and to irregularities which took place at the trial. Account has to be taken of whether there has been a proper direction to the jury on the law and on the evidence and the court has to take into account the consequences of any unfairness which may have occurred.
26.	The test which this court is required to apply is to approach the issues in the round. In doing so, it can only apply the standards which this court adopts today. No one can be criticised for applying standards which were current at the time of any trial. If, however, as a consequence of doing that the trial is properly regarded by this court as unsafe, this court must intervene. That is the approach which we see Bentley laying down. We do not find that Gerald is inconsistent with that approach. That is the approach which we adopt to this appeal. We regard the appellant’s conviction as unsafe. Although his trial took place a long time ago, and although he served the sentence which was imposed upon him, we feel that we have no alternative but to quash his conviction.
27.	It is obviously a matter of very real regret to this court that it has taken so long for this result to be achieved. It is indeed unfortunate that by the standards which were then applicable, this court took a different view when the appeal came before it on a previous occasion. However, judged by our standards today, the appellant has been the subject of injustice. It is perhaps unfortunate that he chose to represent himself. We consider that the fact he chose not to take advantage of legal aid put him in a different position from that in which he would have been had he been represented. Courts always try to compensate for the problems that arise if someone is not represented. The appellant’s attitude at the time was: “I am not guilty, therefore I have nothing to worry about”. He made that clear when he was interviewed. However, he was faced with a very serious charge and he should have taken advantage of the help which was available. That is a matter which we cannot put right, as we cannot put right what has happened since his conviction. But we can at least take the action which he earnestly sought to be obtained, namely holding that this conviction is unsafe and must be quashed.