No. 2015/03527/B1
Neutral Citation Number: [2016] EWCA Crim 13
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Wednesday   13th  January  2016

B e f o r e

LORD  JUSTICE  TREACY

MR  JUSTICE  HADDON-CAVE

and

MR  JUSTICE  GARNHAM

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R E G I N A
 
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IAN  EDWARD  TUCKER

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Mr L Bruce appeared on behalf of the Appellant

Mr J Edwards appeared on behalf of the Crown

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J U D G M E N T
Wednesday  13th  January  2016

LORD JUSTICE TREACY:  
1.  On 29th June 2015 in the Crown Court at Cambridge the appellant was convicted of three offences, namely, affray, having an offensive weapon and assault by beating.  To our surprise he has not yet been sentenced.  We are told by counsel that the judge directed that sentence should be postponed to await the outcome of two summary trials of a similar nature in the magistrates' court which are due to take place on 14th January and 4th February 2016.  

2.  The appellant appeals against his conviction in relation to the count concerning having an offensive weapon.  The single judge granted leave in relation to that matter, but refused leave on other grounds.  The ground of appeal is that the judge should have allowed a submission of no case to answer in relation to the offensive weapon matter.  A renewed application is made in relation to a separate ground asserting that the judge erred in allowing the Crown to adduce identification evidence from two police officers.

3.  The facts show that an affray broke out at about 2.30am on 2nd March 2014 on the High Street in Soham.  The evidence showed that a dozen or so people were involved.  The incident was captured on CCTV.  During the incident an individual appeared, apparently from premises about 30 metres away from the affray.  He was wielding a red cricket bat with which he struck a man by the name of Jaworski who was on the ground.

4.  The Crown's case was that the appellant, who lived nearby at 6 High Street, had been angered by the disturbance and left his flat, approached the scene of the affray and attacked Mr Jaworski with the cricket bat.

5.  Two police officers, Police Constable Bonilla and Police Constable Gilby, had viewed the CCTV footage separately on 2nd and 3rd March.  Neither of them made any identification of the man with the bat at that point.  They were officers with extensive local knowledge who had been asked to look at the footage to see if they could identify anyone involved.

6.  In the period following the incident many of those involved in the affray had been identified, found and cautioned for their part in it.  However, the man wielding the cricket bat had not been identified.  Accordingly, on 17th March, some two weeks or so later, the two officers were tasked with carrying out door-to-door enquiries at the premises close to the scene of the affray.

7.  PC Bonilla gave evidence of going to the appellant's door, a first floor flat at number 6.  He spoke to the appellant for about five minutes.  As he did so, he formed a growing impression that the appellant was the man with the cricket bat on the CCTV footage.  He concluded that he was one and the same person based on his manner, build and facial features, as compared with the CCTV footage which he had seen.  He made a witness statement the following day describing those matters. 

8.  Whilst PC Bonilla was with the appellant, PC Gilby was seeing a neighbour in the ground floor flat.  After speaking to that neighbour, PC Gilby arrived outside the appellant's flat with the information that the neighbour had heard the front door slamming at the time of the affray and then heard feet going upstairs to the first floor flat, where the appellant lived with two other men.  PC Gilby gave evidence that when he saw the appellant, he too formed the impression that he was the man with the cricket bat.

9.  The appellant was arrested.  A distinctive black T-shirt bearing a logo on the front, accepted by the appellant to be his and to be identical to that worn by the man with the bat, was then recovered from his flat.  PC Gilby made a witness statement on 17th April describing the man on the CCTV and his recognition of the appellant as such.  No cricket bat was ever found; nor was it possible to compare blood found on the T-shirt with that of Mr Jaworski because he had returned to Poland.

10.  The CCTV provides a reasonably good view of the man's face, jaw-line and gait.

11.  There was also evidence from a witness who had been driving past and who had seen a short male running very fast past him, holding a cricket bat.  He had then charged at the group involved in the affray and begun lashing out with the bat.

12.  The appellant's case was that the two officers were either mistaken or not telling the truth about their recognition of the appellant from the CCTV footage because the footage was insufficiently detailed to have enabled them to recognise him when they went to his flat.  The appellant claimed not to have left the premises that night.  Indeed, he said that he had not heard any disturbance.

13.  We deal first with the ground upon which the single judge gave leave, namely that which urges that a submission of no case should have been allowed in relation to the offensive weapon count.

14.  The judge rejected this submission.  He held that the overwhelming inference from the CCTV footage was that whoever was holding the bat had emerged from his private dwelling into the street, and, as he emerged, had had the intention to use the weapon offensively.  He had then taken the weapon to the scene of an ongoing disturbance a short distance away and used it upon Mr Jaworski.  The judge rejected a contention that the mischief at which section 1 of the Prevention of Crime Act 1953 was directed did not encompass a situation such as this.

15.  Mr Bruce, who appears for the appellant before us as he had before the judge, made the following submissions:

(1)  A cricket bat can only constitute an offensive weapon if carried with an intent to injure: section 1(4) of the 1953 Act and R v Simpson (1984) 78 Cr App R 115.  We accept that proposition, since a cricket bat is not an article made or adapted for causing injury to the person.

(2)  The purpose of the 1953 Act is to prohibit the carrying of weapons or otherwise innocuous articles being carried as weapons; the Act is concerned with having an offensive weapon, not with offensively using weapons for which offences against public order and offences against the person exist.

Reference was made to R v Jura (1954) 38 Cr App R 53.  That was a case where the appellant lawfully obtained an air rifle at a shooting gallery for the purpose of shooting at a target.  Whilst there, he turned on a woman companion and shot her in the hip.  His conviction under the 1953 Act was quashed.

It was held that the Act was intended to apply to persons who, with no excuse whatever, set out with offensive weapons.  The appellant had a reasonable excuse for carrying the weapon and his subsequent unlawful use of it did not bring him within the ambit of the Act.

Mr Bruce relied on this decision for the proposition that the offensive use of an otherwise lawfully held article cannot necessarily convert that article into an offensive weapon.

(3)   He submitted that in the case of an article which can only constitute an offensive weapon if possessed with an intent to injure, the carrier of the object must be proved to have formed the necessary intent before an occasion to use actual violence has arisen.

Mr Bruce referred to Ohlson v Hylton [1975] 1 WLR 724.  This is the well-known decision involving a carpenter on his way home with the tools of his trade who became involved in a dispute with another man while boarding a tube train.  The defendant immediately took from his briefcase a hammer and deliberately struck the other man with it on the head.  The conviction under the 1953 Act was quashed.

Reliance was placed on the observation of Lord Widgery CJ at page 728F:

"In the absence of authority I would hold that an offence under section 1 is not committed where a person arms himself with a weapon for instant attack upon his victim.  It seems to me that the section is concerned only with a man who, possessed of a weapon, forms the necessary intent before an occasion to use actual violence has arisen.  In other words, it is not the actual use of the weapon with which the section is concerned, but the carrying of the weapon with intent to use it if occasion arises."

Reference was also made to C v DPP [2002] Crim LR 322, a case where a dog owner used a lead to attack police officers whilst out walking her dog.  This decision was described as "borderline" by Professor John Smith in his commentary.

We note that Elias J (as he then was) commented that the nexus between the formation of the intention and the use of the article was a matter of fact and degree, bearing in mind the gap between forming an intention and carrying it out, and the context in which the events took place.

(4)  Thus, argued Mr Bruce, since the Crown's case was that the appellant came from his house with the bat and promptly engaged in violence with it, his carrying of the bat was part and parcel of a single transaction and it would be highly artificial to posit a point in time at which the appellant had the bat with him with an intent to injure prior to his offensive use of it.  In short, he submitted that this was an ordinary article used on the spur of the moment.  It should not be regarded as an offensive weapon if the intent to use it could not sensibly be separated from the violent use made of it.

16.  It seems to us that the situation in this case is different from the examples cited to us.  In the cases cited the defendant was in possession of the article quite lawfully in a public place before it was suddenly used in the heat of an altercation.  In the present case the appellant must have formed an intention to take hold of the cricket bat whilst within his flat. By the time he entered the street, a public place, there was ample evidence to infer that at that stage he had formed an intention to injure.  His actions, thereafter, are highly consistent with that intention.  

17.  This, therefore, is a case of a person introducing an article with an intent to injure into a public place prior to using it offensively there.  It seems to us that this is an important distinction, and on the facts it cannot be said that bringing the bat into a public place with the requisite intent was part and parcel of the incident involving its use upon Mr Jaworski.  Unlike the cases cited earlier, the cricket bat was not to hand in the heat of an altercation.

18.  In R v Dayle (1974) 58 Cr App R 100, this court stated:

"The terms of section 1(1) of the Prevention of Crime Act 1953 are apt to cover the case of a person who goes out with an offensive weapon without lawful authority or reasonable excuse and also the person who deliberately selects an article, such as the stone in Harrison v Thornton [1996] Crim LR 388, with the intention of using it as a weapon without such authority or excuse.  But, if an article (already possessed lawfully and for good reason) is used offensively to cause injury, such use does not necessarily prove the intent which the Crown must establish in respect of articles which are not offensive per se.  Each case must depend on its own facts."

Those observations were approved in Ohlson v Hylton.

19.  There will be cases where there is room for argument as to which side of the line the particular case falls.  In our judgment the judge was correct to conclude that this case fell within the ambit of the Act and to reject the submission of no case.  As the judge observed, this was not a case where the appellant happened by chance to be in the street at 2.30am carrying the cricket bat for an innocent purpose.  There was the clearest evidence that he had brought the bat from home into the street with an intention to use it to cause injury to those involved in the affray taking place nearby.

20.  We might equally pose the question as to whether it could properly be argued that, had the appellant picked up a carving knife from his kitchen instead of the cricket bat and gone out into the street with it, he was not in possession of an offensive weapon.

21.  For the reasons given, this ground of appeal is rejected.

22.  There was an allied, additional point upon which leave was not given asserting that the judge had misdirected the jury in relation to count 2.  Given our conclusion on the offensive weapon issue, this falls away.  

23. In any event, the judge made it clear on more than one occasion that the jury must be sure that the appellant had the bat with him having formed an intention to use it to injury. The defence advanced was not that the appellant had had the bat with him in the street for a lawful purpose immediately before its use.  Instead the defence was that he was not the man with the bat at all.  If the appellant was correctly identified, the evidence did not support the contention that the intention to use the bat to injure, and its use upon Mr Jaworski so coincided as to be part and parcel of the same incident.

24.  In truth, the only real issue for the jury was whether the appellant had been correctly identified.  In the circumstances we are unpersuaded that there is any tenable argument as to the terms in which the judge directed the jury.

25.  Mr Bruce has also sought to renew ground 1, relating to the identification evidence given by the two police officers.  The submission in this respect is that the officers were in breach of Code D3.34.

26.  This applies when, for the purposes of obtaining evidence of recognition, any person, including a police officer (a) views the image of an individual in a film, and (b) is asked whether they recognised that individual as someone who is known to them.  In those circumstances there are detailed provisions requiring the recording of the circumstances and conditions under which the viewing took place.

27.  There was no contemporaneous record of the viewing of the CCTV footage by the two officers concerned.  The first reference they made to the circumstances of their viewing was in their witness statements after the arrest of the appellant on the dates cited earlier.

28.  Mr Bruce argued that there was therefore no objective means of testing the accuracy and reliability of the officers' assertions as to recognition and that there could be no assurance that some form of confirmation bias might not be playing a part in their asserted recognition of the appellant.

29.  The judge rejected this submission.  He noted that neither officer had purported to identify anyone from the CCTV footage.  That was why the house-to-house enquiries had taken place.  He did not consider that paragraph D3.34 fitted comfortably with the circumstances of this case.

30.  The Crown submitted that D3.2 was relevant.  This deals with cases where the suspect's identity is not known, and permits a witness to be taken to a particular place to see whether they can identify a person seen on a previous occasion.  It sets out certain safeguards which must be observed.

31.  Again, the judge did not consider that this part of the Code fitted comfortably with the circumstances.  What had happened here was that the officers in looking at the CCTV footage had not been asked whether they recognised any particular individual depicted there as known to them.  They were asked to look at the film generally, and, since neither of them purported at that stage to identify anyone, there would have been precious little of which to make a record.  If D3.2 is to be taken as referring to the time when the identifications were made, no prior description could realistically have been made of a man the officers had not identified.  In any event, the CCTV footage itself was available at the trial.

32.  The judge held that even if, contrary to his view, the Code should be interpreted so as to indicate that the failure of the police officers to record what was going through their minds at the time they viewed the CCTV by recording a description of the man they subsequently identified as this appellant could be regarded as a breach of the Code, it was not of such a nature as would lead him to exclude the evidence pursuant to section 78.

33.  We agree with the judge that neither part of the Codes fits neatly with the situation present in this case.  The essential criticism is that because no record of their impression from the viewing of the CCTV footage had been made by the officers prior to their house-to-house enquiries, the appellant was disadvantaged in that there could be no proper testing of their assertion as to their recognition of him when they saw him.

34.  In refusing leave on this ground, the single judge said that he would proceed by assuming a breach of Code D, although he thought that D3.2 was applicable rather than D3.34.  This would require a record to be made of the suspect's description as first given by a potential witness.  In the circumstances of this case, the provision would need to be interpreted as requiring a note of the viewing procedure, notwithstanding that the officers were not being asked to focus on any particular individual.

35.  Moreover, D3.0 indicates that this part of the Code applies where an eyewitness has seen the offender committing the crime – a situation somewhat different from the present circumstances.  There are, therefore, in our judgment serious difficulties in the way of an assertion of a breach of Code D3.

36.  Even if a very broad interpretation is given to Code D3, we are satisfied that if there was any such breach, it was not one which in the circumstances should have led to the exclusion of the evidence under section 78.  The officers were carrying out properly directed door-to-door enquiries.  The jury was able to view the CCTV footage seen by the officers.  The jury was provided with photographs of the appellant and the other occupants of the premises taken by the police at the time of the house-to-house search.

37.  The judge was in a position to, and did give the jury a careful direction about the potential weaknesses and problems relating to recognition evidence of this sort.  In particular, he drew attention to the quality of the CCTV footage and posed the key question as to whether it was clear enough for the officers to have formed any sufficient impression of the person shown there which would enable them reliably to recognise or identify the accused later.

38.  The judge also raised the possibility that the neighbour's evidence and the finding of the T-shirt had led to the identification, as opposed to the officers' account that they had recognised the appellant independently of that.  He told the jury that they had to be sure that the recognitions by the two police officers were accurate and true before they could act upon them.

39.  It seems to us that these were important directions designed to safeguard the appellant's position and to require the jury to approach the matter with care.  They were relevant to the judge's conclusion that the trial could proceed fairly, even if there had been a breach of Code D3.  It also seems to us that any recording of details on viewing the video when the officers had failed to recognise anyone was in any event unlikely to have been of much assistance to the jury in evaluating their evidence.

40.  As this court observed in R v Moss [2011] EWCA Crim 252, where there has been recognition in an informal context, the same degree of formal record as would apply where more formal procedures have been adopted, cannot be expected.

41.  Further, it was open to the jury to view the neighbour's evidence and that of the finding of the T-shirt as supporting evidence if they regarded the officers' evidence as having integrity as well as reliability.

42.  In those circumstances we are not persuaded that the judge was incorrect in declining to exclude evidence of identification.  The consequence of this is that this ground cannot succeed and we refuse leave.

43.  Accordingly, the appeal against conviction is dismissed.