Case No: 98/05896/Y5
98/05795/Y5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
(HIS HONOUR JUDGE PAGETT QC)

Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday 19th April 2000

B e f o r e :

LORD JUSTICE HENRY
MRS JUSTICE RAFFERTY
and 
THE RECORDER OF LEEDS
(sitting as a Judge of the Court of Appeal, Criminal Division)

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

	REGINA		
	- and -		
	MICHAEL ANTHONY HICKEY
JONATHAN ROY HAYWARD		

- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040,  Fax No:  0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Miss F. Wiley 	(instructed for the Appellant Hickey)
Ian Leist Esq 	(instructed for the Appellant Hayward)
Richard Horwell Esq	(instructed for the Respondent)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Henry:
1.		This is the judgment of the Court.  On 20th August 1998, the appellants, Michael Anthony Hickey and Jonathan Roy Hayward, were convicted at the Central Criminal Court on the first indictment of one count of conspiracy to rob (Count 1) and two counts of having a firearm with intent to commit an indictable offence, namely robbery (Counts 4 and 5).  The appellant Hickey was also convicted on one count of robbery (Count 2) and one count of causing grievous bodily harm with intent (Count 3).
2.		The appellants pleaded not guilty to two counts on a second indictment of possessing a firearm when prohibited (Counts 1 and 2) and these counts were ordered to remain on the file on the usual terms.
3.		The appellant Hickey was sentenced to 18 years’ imprisonment on each of Counts 1, 2, 3, 4 and 5, concurrent with each other.  The appellant Hayward was sentenced to 16 years’ imprisonment on each of Counts 1, 4 and 5, concurrent with each other.  An outstanding combination order in his case was revoked.
4.		They both now appeal against conviction with the leave of the Full Court.  In granting leave in Hickey’s case the Full Court said this:
“A short point on which it seems to us that Hickey is entitled to leave arises as follows.  Hickey was running an alibi in his defence in relation to Counts 2 and 3.  Nowhere in the summing-up, as it appears did the learned judge direct the jury that the burden of proof remained on the Crown to disprove the alibi, nor, it seems, did he direct the jury that the false alibi did not necessarily indicate guilt on the part of the accused who ran it, or was necessarily capable of amounting to evidence corroborating identification evidence.  It is a feature of the case, says Miss Bradley for Hickey, that the identification evidence relating to Hickey, and Counts 2 and 3, was weak.  We pass no judgment upon that.  It is true there was only one identifying witness who attended identification parades more than once.
The point taken by Miss Bradley is that if the identification evidence was weak, then it was all the more important for the learned trial judge to give clear and proper directions as to how the jury should approach the applicant’s case on alibi.  Those directions were not given.  It is enough to say that in those circumstances there is an arguable appeal on Counts 2 and 3.
Were the Full Court to conclude that the convictions on Counts 2 & 3 were unsafe, it is possible that they might further conclude that the convictions on Counts 1, 4 and 5 were infected.  Accordingly we will give leave to appeal on all five counts.  We make it clear we express no view as to the final merits or likely outcome.”
5.		Counsel for Mr Hayward therefore applied to us for leave to appeal against conviction and to do so out of time.  We granted both applications on the basis of the ground of appeal:
“The learned judge misdirected the jury upon alibi evidence called on behalf of Hickey regarding the events of 14th May 1997.  The events of 14th May 1997 formed part of the Crown’s case upon Count 1 as well as Count 2.  The association of Hickey, Porritt on 28th May 1997 and the alleged joint possession of the robbers’ kit, lay at the heart of the jury’s deliberations.  If the jury, wrongly directed, found not only Porritt but also Hickey had been the robbers identified on 14th May 1997 at Clacton, the Crown’s allegations that the three defendants, together on 28th May had been in Maldon for the purpose of carrying out a robbery, was significantly strengthened, and Hayward’s case that he was not present with Porritt and Hickey for an unlawful purpose, or as part of the alleged conspiracy, was weakened.  The appellant contends Hickey’s wrongful conviction upon Count 2 had a significant and prejudicial effect on his case, which it is submitted was limited to the events of 28th May, rendering his own conviction upon Count 1 unsafe.”
6.		Four men were tried in all, the appellants and two other men.  Stephen Leonard Porritt was convicted on Counts 1 - 5 and sentenced to 18 years’ imprisonment on each count concurrent with each other.  He has not sought leave to appeal against conviction or sentence.  Stephen John Stone was found not guilty on Count 1 and was discharged.
7.		That is the background against which we turn to consider Hickey’s appeal against his conviction on Counts 2 and 3, the Clacton robbery for which he and Porritt were convicted.  We take the facts from the Crown’s summary of them, which was not challenged before us.
8.		At about 11.00am on 14th May 1997 an elderly security guard, Mr Walker, was robbed by two unmasked men while he delivered cash to Safeway’s supermarket.  In the course of the robbery he was shot in the leg by a hand-gun and £30,000 was stolen from him.  The two robbers drove to and from the scene in a Citroen Xantia N884 KPV.  The defendant Porritt was identified as the gunman and first robber by Carolyn Waltham and Lyn Rix.  The appellant was identified as the second robber and passenger in the getaway car by Antoinette Coombes.
9.		The defence of both Porritt and the appellant Hickey was alibi.  Porritt gave evidence and said although he could not remember where he was on 14th May 1997 he was not at Clacton.  The appellant also gave evidence and he advanced a positive alibi in that he said that on 14th May 1997 he was at home with his wife and baby son at the time of the robbery and that he later went shopping with them and another child from 4.00pm to 7.00pm.  In support of this alibi Mrs Hickey gave evidence and Denise O’Sullivan was called to support the later shopping expedition at 4.00pm.  The events between 4.00pm and 7.00pm did not provide the appellant with an alibi but were put forward as showing conduct inconsistent with a man who had just participated in an armed robbery.
10.		No complaint is made as to the judge’s summing-up on the topic of identification.  Mrs Coombes was the only witness who identified the appellant Hickey.  She was a shopper in the car park.  She saw both robbers run to the car, get in and drive away.  The passenger stared at her before he got in and she got a full frontal view of him at a range of about 20 feet for a few seconds (which seemed like five minutes).  She said that overall she had had the man in her sight “... for about three minutes, perhaps a minute in all”.  She gave a description of the robber which described him as being broad shouldered and stocky, which the appellant was not.  She explained this mistake by emphasising that she had concentrated on the passenger, and in particular had concentrated on the passenger’s face.  She maintained that the appellant was the robber she saw getting into the passenger seat of the getaway car.  The judge gave the jury a special warning about identifications, and the dangers of mistaken identification.  He said:
“You may think none of the identifying witnesses had more than seconds, perhaps as long as a minute or so, in circumstances which were wholly unexpected.  It must have been frightening and potentially confusing which may explain why, for instance, Mrs Rix has the car the wrong way round.  On the other hand, they did have, each of them, good reason for those seconds to look at one or other or both of the men.”
	He then made it clear that:
“if there had been a single identifying witness and nothing more, you may think it plainly would not be safe to convict.”
11.		The Crown submit that that was a generous direction, indicative of the overall fairness of this summing-up.  The judge advised the jury that they should look for supporting evidence.
12.		In our judgment the supporting evidence was truly compelling.  First, the appellant was a good friend of Porritt, who was convicted of being the gunman, and who has not appealed his conviction.  Second, the appellant admitted that the Citroen Xantia getaway car had been stolen by him some two weeks before the robbery from a location near to Clacton.  Before the robbery the Xantia had been fitted with false registration plates which matched the plates of a similar Xantia that was on the road in the Clacton area - thus suggesting that it had been stolen for the specific purpose of being used in the Clacton robbery.  Third, the Citroen Xantia had been abandoned in a street called Chantry Close under the eyes of a witness, Mrs Derrick.  She saw it arrive, she saw two men leave it, she saw them get into another vehicle of which she could remember part of the number, M394.  Fourth, in the abandoned Xantia was found a scanner which had been programmed to received certain police frequencies.  When the appellant was arrested 14 days after the Clacton robbery, he had in his jacket pocket an identical scanner which was similarly (though not identically) programmed.  There was evidence for the jury to conclude that the two scanners must have been programmed by the same person.  Fifthly, when the appellant was arrested, he was in a Vauxhall Omega estate, M394 BRL.  In the van he was then driving was a bag containing the very same firearm with which the Clacton security guard was shot.  With that supporting evidence, we reject the criticism of Ground 2 of the Perfected Grounds of Appeal that the identification evidence was so weak as to render the verdicts unsafe.  We return to the judge’s direction as to the alibi defence.
13.		But as the judge was to remind the jury in his summing-up:
“Obviously, if Mr Hickey was baby-sitting at the time he cannot have been in Clacton.”
14.		The complaints as to the summing-up on Counts 2 and 3 as to which leave was granted are threefold:  first, that no specific direction was given that the burden of proof remained upon the Crown to disprove the alibi;  second the fact that a defendant advances a false alibi is not in itself evidence of guilt;  and third a false alibi does not necessarily confirm identification evidence.  It is agreed by the Crown that none of those directions were given.
15.		It is convenient to deal with the first two points together.  The Judicial Studies Board Specimen Direction in relation to alibis is:
“The defence is 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 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 consider 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.”
16.		Those Specimen Directions do not have, nor aspire to have, the force of law.  As the Lord Chief Justice made clear in his introduction to the May 1999 Directions when he said:  
“... legal principles are decided by the Court of Appeal Criminal Division and, on occasions the House of Lords.  The specific directions found in this work become authority only when and to the extent that they have been expressly approved or adopted”.
17.		We deal first with the criticism that no direction on the burden of proof specific to the alibi was given.  The Notes to the Alibi Direction urge the judge to be sure to spell out that the Prosecution must disprove the alibi, even in a short summing-up, in addition to giving the general direction on the burden of proof.  That undoubtedly reflects good practice.  But in the case of R -v- Wood [1967] 52 Cr App R 74, it was submitted on behalf of the appellant that:
“It is a rule of law that when an alibi is raised a particular direction should be given to the jury in regard to the burden of proof, and that in every case when an alibi is raised the judge should tell the jury, quite apart from the general direction of the burden and standard of proof, that it is for the Prosecution to negative the alibi.”
18.		There a very strong Court, presided over by Lord Parker CJ held that there was no such general rule of law, adding:
“Quite clearly if there is any danger of the jury thinking that an alibi, because it is called a defence, raises some burden on the defence to establish it, then clearly it is the duty of the judge to give a specific direction to the jury in regard to how they should approach the alibi.”
19.		Preece [1993] 96 Cr App R 264 was an example where there was such a danger.  At 268 the Court said:
“Whether or not an alibi direction is required in all cases - and we would wish to cast no doubt on the general practice of giving one in all cases - once the judge or Recorder has embarked on the effect of evidence [as had been done there, namely suggesting that the jury had to be sure as to the alibi evidence] it is, we consider, essential, to get it right.”
	There the words used in the summing-up suggested that the burden of proof was on the defendant to prove his alibi.  Once that had been said, the judge had to correct it, and he did not.  All turned on the words used.
20.		This case is therefore distinguishable from Preece.  Here, the judge said:
“In this country it is not for any defendant to prove his or her innocence, it is for the Prosecution (who bring the case against a defendant) to prove guilt.  The Prosecution have made these charges, and they must prove them.  The defendants need prove nothing.  The Prosecution must prove the charges, furthermore to a high standard.  They must make each one of you feel sure of guilt beyond any reasonable doubt.  Nothing less than that will do.  If, at the end of your consideration of all the evidence for and against the defendants you are sure of guilt, well then you must convict.  If you are less than sure of guilt, then equally, you must acquit.”
21.		But the recommended JSB Direction, that it is for the prosecution to disprove the alibi, was not added to that, then or later.  However, the trial judge got right that which the judge in Preece got wrong, in that he reminded the jury of the effect of the burden of proof when summarising the Clacton evidence, and concluded:
“What you have to ask, you may think is, can it simply be a coincidence that  Porritt and Hickey have both been identified as the robbers at Clacton when there are in fact these three links?  Is that too much of a coincidence or is it or may it be that those three witnesses are wrong and the link is explained by Dale?”
22.		The words “... may it be ...” rather than “... are you satisfied ...” show that the jury were properly directed, not only as to the general principle but also the practical effect of it.  These defendants were all represented by experienced Leading Counsel, and none of them invited the judge to give any further direction on the topic of alibi.  But in our judgment, it would have been better, for the avoidance of any doubt, that the first paragraph of the JSB Specimen Direction had been given.
23.		We turn to the second paragraph of the JSB Specimen Direction, which for convenience we repeat:
“Even if you consider 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.”
24.		This direction, commonly known as the “failed alibi direction” also was not given.  Miss Bradley, for the appellant Hickey, submits that this direction should have been given.  She relies on the following authorities listed in the order they were decided:
R -v- Goodway [1993] 98 Cr App R 11
R -v- Lesley [1994] 1996 1 Cr App R 39
R -v- Burge -v- Pegg [1995] 1996 1 Cr App R 163
R -v- Drake [1995] 1996 Crim LR 109.
25.		The starting point is Goodway, which deals with the necessity for giving a full “lies” direction (that the lie is deliberate, and relates to a material issue, that they - the jury - must be satisfied that there is no innocent motive for the lie, and that the lies must be proved or admitted by evidence extraneous to the witness relied on) whenever lies are either specifically relied on by the prosecution as evidence of guilt or might be used by the jury to support evidence of guilt.  The full direction is therefore necessary where “... lies constitute an important element in the chain of proof.”, but:
“We do not say that in every case in which lies are put forward in aid of the Crown case to reinforce the other direction it is always necessary for the trial judge to give any specific form of direction.  How far a direction is necessary will depend upon the circumstances.  There may be cases where the rejection of the explanation given by the accused almost necessarily leaves the jury with no choice but to convict as a matter of logic.” (per North P in Dehar [1969] NZLR 763 at 765, quoted in Goodway at 16)
26.		In Burge -v- Pegg (at 173D) this Court analysed where a Lucas direction was “usually required”, and concluded without further elaboration that one of those categories was “... where the defence relies on an alibi”.  The same problem had been approached in the case of Lesley where the Court analysed the decision in Goodway as follows:
“The Court then concluded that:
‘... a Lucas direction should be given ... wherever lies are, or may be, relied on as supporting evidence of the defendant’s guilt (p17).
	The only exception stated is where such a direction is ‘... otiose as indicated in Dehar’ namely:
‘... where the rejection of the explanation given by the accused almost necessarily leaves the jury with no choice but to convict as a matter of logic.’ [1969] N.Z.L.R. 763, 765
This is not a case within that exception.”
27.		The issue there was whether the accused was the gunman who had killed one man and wounded another at a public dance.  The accused’s defence was that he had not been at the dance.  But his fingerprint on a bottle of beer showed that he had been there.  That fingerprint meant that the alibi was disproved by independent evidence and the prosecution specifically relied on the falsity in order to support their own case.  Therefore a direction was necessary, the Court concluded:
“The failed alibi direction is short and simple.  It should routinely be given.  In our judgment, a failure to give such a direction does not automatically render the conviction unsafe”.
28.		Mr Horwell for the Crown does not quarrel with the statement that the failed alibi direction should routinely be given, but he does contend that it was not necessary in this case.
29.		He contends, consistently in our judgment with the authorities, that in an alibi case where there is no practical distinction between the issue of guilt and the issue of lies, no Lucas direction nor a failed alibi direction is required.  Such a direction is required where the falsity of the alibi is proved by evidence independent of the evidence of the issue of guilt and/or where the Crown has sought or might be understood to rely on those lies as themselves going to proof of guilt.  Neither requirement was present in this case.  He relies in particular on two recent authorities.
30.	First, R -v- Harron [1996] 2 Cr App R 457.  There this Court summarised the earlier case of Landon [1995] Crim LR 338 and the judgment of the Court given by Hobhouse LJ:
“He emphasised that a Lucas direction should be given where lies told by the defendant are relied on by the Crown or may be relied on by the jury as additional evidence of the guilt of the defendant, and that the need for the direction depended on the circumstances of the case.  Where there is no distinction between the issue of guilt and the issue of lies, it is unnecessary to enter upon the Lucas question at all.  The Lucas question only arises where, on some collateral matter and due to some change in evidence or account by the defendant, there is scope for drawing an inference of guilt from the fact that the defendant has on earlier occasions told lies or, on some other matter, told lies at trial.”
They dealt with Lesley as follows:
“One can well understand why the Court considered that in that case, if the Crown sought to rely upon the failure to support the alibi notice as an indication that its contents were untrue, the need for a warning to the jury was thought to be essential.”
But they contrasted that situation with what the Court had to consider in Harron, where:
“The reality for the jury was whether [the identifying witnesses] were lying or whether the appellant was lying ....  It was a case ... in which lies, as a specifically identifiable feature of the case, neither played any part in the way the prosecution put the matter, nor constituted a matter which the jury might have taken into account separate from their determination of the main issues in the case, which turned upon the truthfulness of the [identifying] witnesses.  ...  We do not think that this was a case in which the reduction of the appellant’s evidence would be likely to have been regarded by the jury as supporting evidence of the defendant’s guilt.  Further, we are not persuaded that had they been told that alibis are sometimes falsely put forward to bolster an honest defence it would have affected their decision.  Accordingly, the conviction is not unsafe and we dismiss the appeal.”
31.	To similar effect, Mr Horwell additionally relied on the case of Patrick, a decision of a constitution of this Court presided over by Lord Justice Roch (transcript 18th March 1999).  That decision simply reinforces what has already gone before.  We do not find it necessary to rehearse its facts here.  Consequently we agree with Mr Horwell’s summary of the law, and additionally agree with his analysis of the facts as set out in the Crown’s skeleton:
“The appellant’s alibi did not collapse and there is no extraneous independent evidence to disprove it other than that of Mrs Coombes.  Accordingly, this emphatically was not a case in which the Prosecution sought to rely on lies either admitted or independently proved to support the identification evidence.  Lies as a means of supporting the identification of or disproving the alibi did not feature as a submission in the closing speeches of either the Prosecution or the appellant.  Neither was such an argument advanced in the course of the summing-up.  It was, therefore, unnecessary for the trial judge to give a failed alibi direction and it is noted that, after a summing-up of impeccable brevity and clarity, Counsel for the appellant did not submit that either a failed alibi direction or burden of proof direction should have been given.”
32.		We do not think that it would have been appropriate to give a failed alibi direction in this case.  Indeed, such a direction could have been confusing when the issue was so clear.  In relation to the issue of misdirection, the only criticism of the judge that we would make is that it would have been better if the jury had been reminded that the burden of disproving the alibi lay on the Crown.  But, for reasons given in paragraphs 17 to 22, we do not think that that in any way imperils the safety of the conviction.
33.		As has been made clear, the prosecution never contended that Hickey’s alibi evidence had collapsed, or that the failed alibi in any way supported the evidence of identification.  The matters canvassed in paragraph 12 did, but not the failed alibi.  In these circumstances we reject the submission that the judge should have directed the jury on this issue.  As there was no need to, to do so would be confusing.
34.		So far we have dealt with Grounds 1 and 2 of the Perfected Grounds of Appeal.  The Full Court, in giving leave to appeal on the adequacy of the directions on the alibi, recognised (as the grant of leave to Hayward showed) that if on the appeal the Court concluded that the convictions on Counts 2 and 3 were unsafe (Ground 1 and 2) then Counts 1, 4 and 5 (dealing with the remainder of the conspiracy apart from the Clacton robbery) might be infected.
35.		Miss Bradley in her original advice made clear that
“... on counts 1, 4 and 5 there are, regrettably, ... no grounds for appeal”
then, in a later advice dated 10th November 1998, she perfected the grounds of appeal adding Grounds 1 and 2 on that document.
36.		The convictions on Counts 2 and 3 are not in our judgment unsafe, for the reasons given, and therefore the linked appeals on Count 1, 4 and 5 - Grounds 2, 4, 5 and 6 of the Perfected Grounds - fall away.  However, Miss Bradley contended that leave had been given for those grounds.  We do not so read the transcript.  We heard her submissions on those grounds and do not think that this is a proper case for leave on any of them.  Our reasons follow.
37.		Ground 2 relates to fibres.  Forty-one fibres from the appellant’s jacket were found on the MAB handgun that had been used in the Clacton robbery.  On the appellant’s arrest, 14 days after the robbery, the bag containing the handgun was taken from the appellant’s van.  None of the other items in the holdall had fibres from the appellant’s jacket on them.  The forensic scientist was cross-examined as to this, it is said that she accepted that a possible explanation for the lack of these fibres on the other items in the holdall could have been because the fibres had been attached after the gun had been removed from the holdall.  This was one of many points advanced by the Crown and the defence respectively.  The trial judge could not have been expected to refer to each and every one of them.  The Crown equally could point to omissions.  No-one suggested to the trial judge at the time that it was an important omission.  The judge did not sum it up as an issue, but touched on the point as to the fibres from Mr Hickey’s pocket in his summing-up.  That omission does not prejudice the safety of this conviction.
38.		Ground 3, suggesting that the identification evidence was unsafe, we have dealt with in paragraphs 10 to 12.
39.		Ground 4 reads:
“Evidence called and said to be corroborative of the said identification was equally consistent with other types and degrees of involvement, namely membership of the team of robbers after the date of the Clacton robbery on the 14th May 1997, and was therefore not corroborative of the identification, with reference page 70B of the summing-up.”
40.		Page 70B of the summing-up deals with Omega M394 BRL.  This was the second getaway car, which the two robbers were seen to get into after the Clacton robbery, and so we do not understand what point is here being made.  But again, there was no request to have this point summed up further.
41.		The same can be said of Ground 5:
“In omitting to advance the possibility of alternative explanations such as that set out above, the learned judge erred in his duty to sum up the defence case.”
This was a long, full and careful summing-up.  The suggestion that the defence case was not summed up is groundless.  The transcript shows that the judge was receptive to suggestions as to omissions and corrections.
42.		Ground 6 is a “sweep-up” ground and need not be considered separately.
43.		In any event, as paragraph 4 of Mr Horwell’s skeleton makes clear, the convictions on Counts 2 and 3 would logically have been reached after consideration of the general “fit-up” defence run by all defendants, and so would have been extremely unlikely to have affected the verdicts on Counts 1, 4 and 5, which counts were based on strong evidence as summarised in Mr Horwell’s paragraph 4, and which, the question of contamination apart, it was accepted could not be challenged.
44.	Accordingly, for all those reasons, these appeals against conviction will be dismissed.
45.	There remain the appeals against sentence.  Because of the logistic difficulties of re-assembling the same constitution, we will adjourn these appeals against sentence to come on on the first convenient date before another constitution of this Court.