Neutral Citation Number: [2011] EWCA Crim 2987
Case No: 20106875/C1 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Thursday, 24 March 2011
 
B e f o r e:

LORD JUSTICE RIX 

MR JUSTICE RODERICK EVANS 
 
THE RECORDER OF REDBRIDGE 
(His Honour Judge Radford)
(Sitting as a Judge of the Court of Appeal Criminal Division) 
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 R E G I N A 

v 

GEORGE DANIEL FREDERICK NETHERCOTT 
 
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Mr D Gibson‑Lee appeared on behalf of the Appellant 

Miss H Shimmen appeared on behalf of the Crown 
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Judgment

1.	MR JUSTICE RODERICK EVANS:  This case came before us on 15 March 2011 as a renewed application for leave to appeal against conviction and sentence following refusal on the papers by the single judge.  We granted leave in respect of both conviction and sentence and the appeals are now before us.
2.	The appellant, George Daniel Frederick Nethercott, is a young man who is now aged 19.  He was born on 17 August 1991 and prior to the convictions which are the subject matter of this appeal he was a young man of previous good character.
3.	He appeared in November last year at the Crown Court at Bournemouth and following a trial he was convicted by the jury on 29 November of affray (count 1) and having an article with a blade or point contrary to section 139 of the Criminal Justice Act 1998 (count 2).  The matter was adjourned for reports.  On 23 December he was brought back before the court and he was sentenced to concurrent terms of 18 months' detention on each count.  That was detention, of course, in a young offender institution.
4.	The incident which gave rise to both those charges occurred on the evening of Thursday 30 July 2009 at a public house called the Dorset Soldier in a village called Corfe Mullen in Dorset.  At about quarter to nine that evening the landlord, Mr Geoffrey Mockford, spoke to a group of young people who were drinking outside the public bar, and who he believed to be under age, and he asked them to leave.  
5.	Shortly after that a young man from that group went into the bar and challenged Mr Mockford.  The subject of his challenge was his age.  That young man, whom the prosecution said was this appellant, produced a driving licence which Mr Mockford said showed a date of birth of 31 August 1991.  Mr Mockford believed that the driving licence was false and he asked the young man to leave.
6.	Two matters are worth noting about that driving licence.  First of all, the driving licence produced by this young man showed a date of birth which made him younger than the true date of birth of this appellant.  The second matter to note is that when this appellant was arrested within the hour he had upon him his genuine driving licence.  No other driving licence showing the date of birth which was reported by Mr Mockford was ever found.
7.	When he was asked to leave, the young man who produced the driving licence became aggressive and was unwilling to leave.  He then withdrew a knife from his sock and he brandished it at Mr Mockford, threatening him and threatening to stab other customers.  This was a knife of some size.  It had a blade which was said to be about 7 or 8 inches in length.  In the event, this young man was forced out of the public house by a number of other men who had been in the bar.  
8.	Shortly afterwards the police arrived and they spoke to the landlord and a number of other potential witnesses.  A police community support officer, Mr Rooke, viewed the CCTV recording at the public house.  That recording showed some of the incident.  After Mr Rooke had looked at the recording he thought that the young man concerned was either this appellant or a man called Alex Smith, both of whom he said he knew.
9.	He relayed that information to other police officers over his police radio in the presence of Mr Mockford.  Therefore, Mr Mockford was present when Mr Rooke announced the two names.  No other witness said that they overheard Mr Rooke's radio message.  After the police constable had relayed the message Mr Mockford said that the name on the driving licence was Nethercott.
10.	Mr Rooke then seized the CCTV recording, put it in a plastic evidence bag and handed it to the officer in the case.  Later, when that recording was examined by a member of the police technical unit, it was discovered to be blank.  There was never any explanation available as to how that had come about.
11.	Mr Mockford provided a first description to the police that same evening, as did a number of other witnesses.  One witness was Shaun Owen.  The first descriptions given by other witnesses, however, were not recorded by the police at the time they were given.  It is also worthy of note that Alex Smith, the second person identified by the community support officer as a potential name of the person on the CCTV recording, was never spoken to or interviewed by the police.  That is a fact relied upon by this appellant to which we shall return in due course.
12.	Identification procedures were conducted and the appellant was identified by Mr Mockford one week after the incident and by two other eye witnesses, Shaun Owen and Liam Albige, several months later.
13.	When Mr Mockford attended his identification procedure the appellant's legal representatives were present but they were not informed that Mr Mockford had viewed the CCTV with PC Rooke on the evening of the incident.  Mr Mockford was not asked if the person on the driving licence photograph and on the CCTV was the same person who had the knife.  He did say, however, that the photograph looked like the person he had refused to serve and that he had picked out the person who came at him with the knife.  The applicant is one of three brothers.  He has twin brothers, who, it is said, were of similar appearance to this appellant.  
14.	Only some of the witnesses at the public house who made statements to the police were asked to attend identification parades.  One witness, a Bridget Teuber, refused to attend an identification procedure.  Christopher Heckford, Craig Davison, David Halfhide and Roger French were not invited to attend identification procedures.  Two other witnesses, Christopher Dale and Guy Tate, did attend identification procedures but did not identify the appellant.
15.	The appellant was arrested at about 9.20 that evening.  He was found at a friend's house, hiding under a bed.  When he was arrested, he said, "It's about the knife."
16.	The appellant was subsequently interviewed on 31 July.  His account was that he had returned home from work that evening, had a meal, looked after his sister's baby and then had gone out with his brother, Louis, shortly after 9 o'clock.  He had been told about the incident with the knife by his brother and when the police arrived at his friend's house he was frightened and he hid under the bed.  
17.	What has emerged before us today during submissions, is that also under the bed with this appellant was his brother.  That fact is relied upon on behalf of the appellant as explaining his comment and his knowledge of the incident relating to the knife.  
18.	After the identification procedures had taken place, he was further interviewed by police but he made no comment.
19.	We need to deal briefly with one element of the evidence which emerged during the course of the case.  The prosecution called David Halfhide as a witness.  Initially he refused to attend court and a witness summons was served.  He was brought to court following the issue of that summons.  The appellant knew Mr Halfhide as the appellant had helped Mr Halfhide in his garden when he, the appellant, was much younger.  When Mr Halfhide gave evidence he said that he had not recognised the man with the knife.  He was asked by the Crown about that and he said words to the effect that he did not recognise him "as a man." 
20.	The jury were asked to leave and that matter was explored.  What emerged was this.  Between the incident and the trial Mr Halfhide had learned from rumours in the village the identity of the person who had been arrested and what he had meant when he made that remark in front of the jury, was that he did not recognise him now that he had grown to be a man.  Ultimately, no further questions were asked of Mr Halfhide and the matter was left in that way.
21.	The issue at trial, of course, was identification.  The prosecution alleged that it was the appellant who was the man with the knife.  The appellant denied that.  
22.	There had been according to the evidence as it emerged at trial, and this was the submission of Mr Gibson‑Lee on behalf of the appellant, a number of breaches of the Codes of Conduct relating to the police handling of the identification evidence and identification procedures.  First, no record had been kept of any first descriptions given by witnesses, save that of the landlord, who had, as we have mentioned, been told by the police whom the police officer believed the suspects to be.  No copy of that first description was given to the defence and the defence were not told before the identification by the landlord that he had seen a photo ID, had watched the CCTV footage and had been told of the possible identity of the suspects by the police at the time.
23.	Furthermore, Mr Gibson‑Lee relied upon the delays that had occurred between the incident and the holding of the identification procedures in relation to the witnesses Owen and Albige.  Mr Owen had attended a procedure on 12 November and Mr Albige some three weeks later, on 7 December.
24.	Furthermore, Mr Gibson‑Lee relied upon the loss of the CCTV footage and the fact that the disc when played was blank.  That, he said, put the defence at a considerable disadvantage.
25.	Furthermore, the case had not been properly investigated in breach of the Codes of Conduct laid down by PACE.  No action had been taken by the police to trace, investigate or interview Alex Smith and when police officers went back to the public house in order to make enquiries about the CCTV footage, none of their further enquiries were properly recorded in police notebooks.
26.	Counsel on behalf of the appellant submitted to the judge that the fact of these breaches and the loss of the CCTV recording was so serious that the judge should stop the case.  This was particularly so when another suspect had not been the subject of police enquiries.  The judge refused to do so and the first ground of appeal against conviction is that he was wrong in that decision.  
27.	We are grateful not only to Mr Gibson‑Lee for his submissions both today and on the earlier occasion, but also to Miss Shimmen, who appears on behalf of the prosecution.  She makes the point, first of all, in relation to the twin brothers of this appellant that they did not look similar in one important respect at least to this appellant.  During the course of the evidence a photograph had been produced by the appellant's mother showing these three brothers and one of the features which distinguished this appellant from the other two brothers was that the appellant did not have ginger hair, whereas the twins did.  Furthermore, she submits, it was never the appellant's case that the man with the knife was one of the twin brothers.  There is obvious force in that submission, but one of the problems with it is that we do not know what the initial descriptions were of the man with the knife as they were never properly recorded.
28.	As far as the absence of the CCTV footage is concerned, Miss Shimmen submits that the police acted properly in seizing the disc and in the way that they subsequently dealt with it.  It is very unfortunate, she concedes, that the disc was blank when it was examined.  But there is no suggestion in relation to the loss of the CCTV footage, or, indeed, of any of the other breaches of the Codes that they were the result of bad faith on the part of the police.  Mr Gibson‑Lee simply says that the loss of the CCTV footage was unfortunate and the other breaches were the result of incompetence not malice.  The result is, he says, that the absence of the footage, disadvantaged the defence.  Miss Shimmen also says that it disadvantaged the prosecution.
29.	As to the failure to record further enquiries made by the police at the public house, Miss Shimmen says that these never featured in the trial to any great extent, that the enquiries were limited to initially trying to obtain a signature on an exhibit label to attach to the plastic bag into which the disc was placed and later, when the disc was found to be blank, whether a copy was available.  We do not think that anything really turns on the absence of any record of those further enquiries.
30.	We turn, therefore, to deal with the more significant failures on the part of the police: the first descriptions.  Miss Shimmen accepts, as did the police officers when they gave evidence, that first descriptions were given but never recorded.  The officers explained this failure by saying that they were faced with a number of witnesses in a busy, full public house; witnesses could have left at any moment and what they did was to prioritise their tasks.  The first task was to record the names and contact details of potential witnesses and therefore they did not record the descriptions additionally given by those witnesses.
31.	So far as Mr Owen was concerned, his first description had been given by way of a 999 call.  That was not disclosed to the defence when Mr Owen took part in the identification procedure and that was an acknowledged failure on the part of the police.  However, Miss Shimmen points out that was available to the defence when they came to cross‑examine Mr Owen about his evidence.
32.	As to Mr Mockford, it is right again, concedes Miss Shimmen, that the defence solicitors were not notified that Mr Mockford had seen the CCTV footage before the identification procedure.  It was Mr Mockford, they say, who played the footage to the officer on his arrival at the public house.  But this is not a failure on the part of the police which undermines the integrity of the identification procedure says Miss Shimmen.  This is not a case where a witness has been shown in the time between the incident and the identification procedure a photograph of a suspect who is then one of the people who takes part in the identification procedure.  Here, all Mr Mockford saw was the recording of the incident which he himself had been part of only moments earlier.  
33.	As to the delay in holding the identification procedure, that, again, is conceded by the prosecution at trial.  It is said, however, that Mr Owen was not a local man.  Mr Owen had said in evidence that his first visit to this public house had been on the night of the incident and he had never seen the person whom he identified as the person with the knife before that night.
34.	Mr Albige, on the other hand, said in his statement and in evidence that he recognised the male from the local Co‑operative shop where he worked, although he said he had not seen the person again in the village after the incident.  His evidence was that he had picked out the person he had seen in the village in the past and that was the person he saw in the pub with the knife.
35.	Again, in relation to the absence of any enquiries into Alex Smith, the respondents concede that none were ever undertaken and that no explanation was ever given for that during the course of the evidence in this case.  
36.	The competing submissions that we have heard were, of course, heard by the trial judge.  He considered the nature of the breaches of the Code and he concluded that they were not inspired by malice on the part of the police but were due to ignorance.  He recognised the breaches, but he decided that, although these were deficiencies in the prosecution's case, there were not such as would prejudice the fairness of the proceedings and he concluded that this was a classic jury case.  He said in his ruling that he would direct the jury in relation to all the breaches and shortcomings with detail and with care.  That is indeed what he did in what was a very careful and very fair summing‑up.  He identified the breaches, he explained the significance of the breaches and he carefully warned the jury about the need to bear the breaches in mind when they considered the evidence.
37.	We have looked with care at the competing submissions and at the detail of the evidence in this case and the admitted breaches of the Code and the shortcomings of the police investigation. 
38.	The matters which, on the face of the papers before us, initially provided some support for the prosecution's case, the driving licence and the appellant's response when arrested, have been dealt with in submissions in a way which means that they cannot now support the prosecution's case.
39.	Secondly, we have come to the conclusion that if we were to look at any one of these breaches or shortcomings in isolation they would not be enough to cast doubt on the safety of this appellant's conviction.  However, we are urged by Mr Gibson‑Lee to look at them cumulatively.  That we have done.  Looked at cumulatively, and against the background of the complete absence of any enquiry into the other man named by the police officer as a potential suspect, we have concerns about the safety of this conviction.
40.	Ultimately, the Codes of Conduct are there because they provide safeguards not only for defendants but also for police officers investigating cases.  If they are not followed, then there is a real danger that they can destabilise what might otherwise be a proper prosecution and a safe conviction.  
41.	In this case the effect of the failings and the breaches of Code make us feel that there must be a real doubt about the safety of this conviction.  Accordingly, despite the attractive arguments put orally and in writing by Miss Shimmen, we are satisfied that this is an appeal against conviction which must be allowed.  Therefore, the appeal is allowed and the conviction quashed.
42.	MR GIBSON-LEE:  My Lord, the family incurred costs, as I indicated to your Lordship, in relation to the renewed application.  I did the ex parte, single leave _pro bono_.  As I indicated, I am told by those instructing me that they are less than £1,000.  I wonder if your Lordships would order a defendant's cost order to cover fees between the expiration of the legal representation and the granting of a new one last week? 
43.	LORD JUSTICE RIX:  Out of central funds to be assessed.  Yes, by all means.
44.	MR GIBSON-LEE:  Thank you.  Someone has to notify the prison to get him out.  Can I assist your Lordships further? 
45.	LORD JUSTICE RIX:  I am sure that will be done.  Thank you Mr Gibson Lee, thank you Miss Shimmen, thank you for your assistance.