No: 200400543 D2 
Neutral Citation Number: [2005] EWCA Crim 692
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Friday, 11th March 2005

B E F O R E:

LORD JUSTICE KEENE 

MR JUSTICE TUGENDHAT 
 
MRS JUSTICE GLOSTER DBE 

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R E G I N A 

-v- 

SHANE MIDDLETON
 
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MR M HEYWOOD appeared on behalf of the APPELLANT
MR B M LINNEMANN appeared on behalf of the CROWN
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J U D G M E N T
1.	LORD JUSTICE KEENE:  On 12th December 2003, in the Crown Court at Wolverhampton before His Honour Judge Wood, this appellant was convicted of robbery, possession of a firearm when committing a Schedule 1 offence and attempted robbery.  In due course he was sentenced to life imprisonment, with a recommended minimum of seven years three months.  He now appeals against his conviction on two grounds by leave of the single judge, with his application for leave on a third ground being referred to this court by the single judge.
2.	The three offences to which we have referred were connected.  On 8th November 2002, just before 1.30 in the afternoon, a lone masked man entered the National Westminster Bank in Warley.  He produced a gun, which he held to a customer's head while demanding cash from the staff.  He in due course left the bank with about £7,000 and was seen, without his mask, fleeing into a silver Ford Sierra, registration number H191 JMO.  As he got into that car, a red dye pack which had been placed by the bank staff in with the stolen money exploded, and as a result the man left some of the money on the road and drove away in the Sierra, crashing it a few streets away.  He then attempted to rob a man of his car by holding a knife to his throat, but he was prevented by getting away by other motorists blocking him in.  The man then escaped in a white Ford Escort cabriolet.  Again the registration number was noted: it was D882 CVG.  That car was driven by an unknown person.  
3.	The Sierra was in due course recovered.  A black handgun and £4,000 in cash were found in the passenger footwell.  That car had been sold to the appellant some time before the robbery.  The police then found keys fitting the Ford Escort cabriolet in the flat where the appellant was arrested.
4.	It was the prosecution case that the appellant was the man who had carried out the bank robbery and had committed the other offences.  They relied on his links to the vehicles which had been used, the fact that he had been picked out from a video identification procedure by a witness, and they also hoped to rely on evidence from the appellant's brother's girlfriend, a Miss Young, who said that the appellant and his girlfriend had come to her flat with a bag of red dyed money.  Reliance was also placed by the Crown on evidence that the appellant had told his girlfriend's brother, a man called Gerald Preece, to hide him when he heard that his girlfriend had been arrested.
5.	It was the defence case that the appellant had loaned the two cars to his drug dealer as part of a potential sale and that they had been used by other people, unknown to him, in the bank robbery and the other offences.
6.	There were a number of witnesses who were able to give some sort of description of the robber, despite the mask, which seems to have consisted of black netting or some material of that kind.  These descriptions indicated that the man was pale-skinned, probably white, generally around 5 foot 6 or thereabouts in height and in his late teens or twenties.  
7.	The positive identification of the appellant to which we have referred came from a witness called Paul Cresswell.  He was a man who ran a charity shop nearby to the bank.  He gave evidence that he had heard someone say that there had been a bank robbery and he then went outside.  He said he looked towards the bank and saw a man leaving it, walking quickly.  The man walked past him while looking directly at him and then turned into an adjoining road.  Mr Cresswell said that he followed the man to the corner.  The man would at one stage have been no more than a metre from him.  He could see most of the man's face, though not his hair because the man was wearing a hood.  He too described the man as being white and having a pale complexion.  According to Mr Cresswell's evidence, the man went to a Ford Sierra and got into the car, but before he drove away there was an explosion of red dye from the bag and so the bag and some money were left in the road.  Mr Cresswell gave evidence that he had, after these events, attended a video identification parade and picked out the appellant.
8.	At trial the defence objected to the admission of the evidence about the identification procedure involving Mr Cresswell.  It was contended, and indeed admitted by the Crown, that there had been a breach of Code D of the PACE Codes in that, contrary to Annex A paragraph D7, neither the appellant, nor his solicitor, had been shown the set of video images before they were shown to any witness.  It was not submitted that the breach by the police was deliberate, but it was said that to admit the evidence would prevent a fair trial.
9.	The judge ruled against the defence on this application.  He took the view that the purpose of the provision in paragraph D7 was to enable the suspect or his solicitor to object if it was thought that any of the images were inappropriate, in the sense that they were not broadly similar to the appearance of the suspect.  Although the defence had criticised some of those selected, the judge saw the video images and he concluded that they were an appropriate selection.  He also made reference to the fact that the set of images had been shown to another witness called Ackroyd, a man who made no identification, but that this process had been carried out in the presence of the suspect's solicitor, who had raised no objection to the selection of video images.
10.	Despite the breach of what the judge accepted was a mandatory requirement in the Code, he concluded that the breach did not create any risk of unfairness and for that reason he rejected the defence application.
11.	That ruling is now challenged in the first ground of appeal, which is the one referred to this court by the single judge.  Mr Heywood, who appears today on behalf of the appellant, as he did at trial, submits that there was a flagrant breach of the Code which severely diminished the fairness of the trial.  The appellant was deprived of the opportunity to object to the set of images shown.  It is contended that the judge was wrong to have attached weight to the fact that the appellant's solicitor was present at the video identification parade.  It is argued by Mr Heywood that the presence of the solicitor on that occasion was merely to ensure that the procedures at the parade were themselves properly carried out.  His presence there was not intended to enable him to object to the images in question.  By that stage of the process the breach of Code D had already occurred.  Moreover, Mr Heywood points out that some of those shown in the nine video images have differences in appearance from the appellant: some of them have ear-rings; some seem older than the appellant.  Moreover, it is said that Mr Ackroyd, who was the other witness who saw these images, failed to pick out anyone from the nine, even though he saw the robber from close to.  He had described the robber as being fair-haired.
12.	The court has seen the video images of the appellant and the other eight men.  Those other eight seem to us to comply with paragraph D2 of Annex A in that they do "resemble the suspect in age, height, general appearance and position in life".  It is not expected that the other eight apart from the suspect will be entirely identical to the suspect.  
13.	Of course, the fact that there was no breach of paragraph D2 of Annex A does not mean that there was no breach of paragraph D7, which is a separate provision.  There clearly was a breach of D7.  Nonetheless, the fact that there was no breach of paragraph D2 may be relevant to the issue of fairness on which the judge had to exercise his discretion.  Paragraph D7 of the Annex reads as follows:
"The suspect or their solicitor, friend, or appropriate adult must be given a reasonable opportunity to see the complete set of images before it is shown to any witness.  If the suspect has a reasonable objection to the set of images or any of the participants, the suspect shall be asked to state the reasons for the objection.  Steps shall, if practicable, be taken to remove the grounds for objection.  If this is not practicable, the suspect and/or their representative shall be told why their objections cannot be met and the objection, the reason given for it and why it cannot be met shall be recorded on forms provided for the purpose."
14.	The judge was undoubtedly right in saying that the purpose of this particular provision is to enable the suspect or his solicitor to raise any reasonable objection that may exist to the selection and, if practicable, to remove the grounds for that objection.  That being so, in the view of this court it must be relevant, when there has been a breach, to ask whether there could realistically have been a reasonable objection to the set of images.  The suspect or his solicitor has no unfettered or absolute right of objection.  
15.	In the present case, it seems to us that the judge was entitled to take the view that there could not have been any reasonable objection to the set of images once the judge had seen those images which were shown to the witnesses.  It is also to be noted that the appellant's solicitor sat through the whole of the video identification procedure involving the witness Ackroyd and saw the same nine images as were shown to the witness Cresswell before the procedure involving Cresswell took place.  The procedure involving Ackroyd took place immediately before that involving Cresswell, and yet no point was taken at any time and no comment made by the solicitor on behalf of the appellant to the effect that any of the images were inappropriate.  Now, while it is true that the function of the solicitor at that stage is as described by Mr Heywood, as we have summarised, the absence of any objection to the images selected seems to this court to be something which a judge can legitimately take into account when exercising his discretion.  There was, in reality, an opportunity to raise an objection before Cresswell saw the images.  We note that it is sufficient under the Code, paragraph D7, for the suspect's solicitor, rather than the suspect, to be allowed to see the images in advance.  
16.	None of this prevents there from being a breach of paragraph D7 in this case, which, as we have pointed out, the Crown conceded, but the fact of a breach is not the end of the matter.  What is crucial is to consider whether the admission of the evidence in such circumstances, where there has been a breach, would have such an adverse effect on the fairness of the proceedings that it ought not to be allowed: see section 78 of PACE.  This was not a deliberate breach of the Code but an inadvertent one.  There is no issue as to that.
17.	The function of this appellate court is to determine whether the trial judge exercised his discretion in a way which was not properly open to him.  When we put the compliance with paragraph D2 as to the resemblance of the images to that of the appellant along with the fact that his solicitor saw them before the witness Cresswell saw them and made his positive identification, we conclude that the judge was entitled to exercise his discretion in the way which he did.  No real unfairness resulted from his decision or from the breach of the Code to which we have referred.  We consequently see no merit in this first ground.
18.	We turn to the two grounds on which leave to appeal was granted by the single judge.  Both raise issues about hostile witnesses.
19.	The first relates to a woman called Jennifer Young, who was the girlfriend of the appellant's brother, Tyrone.  She had given two witness statements to the police in November 2002 shortly after the robbery.  The first was relatively innocuous, but the second gave vivid detail about the evening after the day of the robbery.  She described how the appellant and his girlfriend, Karen Rawlings, had come to her house, where Karen had produced a number of £20 notes stained heavily with red dye.  The appellant, according to this statement, had given Miss Young some of them and she could see a large amount of notes in Karen's handbag.  She also said in that statement that the appellant told her to tell anyone who asked that she had sold the white Ford cabriolet to two black men and a white girl.  That then was the significance of her second witness statement made shortly after these events and well before trial.  
20.	When called at trial, however, by the prosecution, Jennifer Young said that when the appellant and Karen came round that evening, they had a normal conversation - nothing was said about money, dyed or otherwise.  In these circumstances, the Crown applied to treat her as hostile and the judge granted that application.  No complaint is made in this appeal about that ruling.  However, it is submitted that the judge's directions subsequently to the jury on this were inadequate.  It is accepted that he directed them that her out of court witness statements were not evidence of the truth of their contents and that the only evidence was what she said from the witness box.  Indeed, we note that in dealing with Jennifer Young and with the witness called Preece, the judge said at page 4 of the transcript:
"Where they disputed what was in the witness statements, saying that it was wrong, you cannot prefer what was in the witness statements to what they said in court.  That is because, as I've just said, their evidence in court is what counts and the witness statements are only used so as to assist you in your assessment of the evidence they gave."
21.	What Mr Heywood on behalf of the appellant criticises, in his succinct and attractive argument this morning, is the absence of further directions to assist the jury in how to treat this evidence from Jennifer Young which was given in court.  It is submitted that the judge failed to remind the jury that she had been treated as a witness hostile to the prosecution and that any evidence which she gave adverse to the appellant had been elicited only as a result of cross-examination by the prosecution.  
22.	Reliance is placed on the decision of this court in Ugorji [1999] 9 Archbold News 3 as authority for the need for a jury to be told to treat such evidence by a hostile witness with caution.  We have been provided by the appellant with a transcript of that decision, which we have read.  Reliance in particular is placed by Mr Heywood on what the court there said at page 5:
"In our view common sense suggests that where evidence has only been given as a result of a witness being treated as hostile the jury should be reminded of this in clear terms and told to bear it in mind when considering what weight to attach to the evidence.  
Although the judge alluded in the passage to which we have referred to what happened by saying:
'... I did allow him [the witness] ... to be questioned in a particular way ...' 
we do not think he went far enough.  He should have explained that he had allowed the Crown to treat Mr Ramzan as a hostile witness and so cross examine him about his previous statement to the police and the jury should, therefore, bear this in mind when considering what weight to give to his evidence."
23.	Moreover, it is argued that the judge failed to direct the jury to consider whether this witness was creditworthy at all: see the well-known case of Maw [1994] Crim LR 841.
24.	It is to be borne in mind that what happens with a witness who has been held hostile will inevitably vary greatly from case to case, and the precise directions required of a judge will, to a certain degree, also vary as a consequence.  The most fundamental direction is the one given by the judge in this case more than once, namely that the out of court witness statement by the witness is not evidence unless accepted as true by the witness at trial in respect of any particular part of it.  The other direction which will almost invariably be required is one reminding the jury that if there is serious conflict between the witness' evidence in court and a previous witness statement, then they may reject the witness' evidence altogether.  Beyond those directions, what the judge says to the jury will depend upon the circumstances of the individual case.  
25.	Here, the judge gave both the directions to which we have referred.  The first we have already covered.  In respect of the second, we note that when dealing with this topic, again at page 4 of the summing-up, the judge said this:
"What they may have said earlier to the police is not evidence in the trial.  If they said something wholly different to the police from what they said in evidence, of course that may lead you to discount and regard as unreliable what they said from the witness box."
He later went through Miss Young's evidence in more detail.  He referred to her second witness statement and to her saying in court "I never said that to the police" about the red dyed money.  Later she said in her evidence in court: "I could have said it while I was on drugs".  She agreed in her evidence that she had said to the police that the appellant had told her to say that she had sold the Ford Escort to two black men, but that was not true.  She then denied another part of her witness statement and the judge commented as follows:
"... that part of the evidence, you may have thought, looked pretty unreliable all round, because she was giving different explanations for what was in the statement and it was entirely unsatisfactory, you may have thought.  
But fundamentally it cannot increase the Prosecution case to show that the witness has said confusing and unreliable things in a witness statement because that witness statement is not evidence in the case."
At the end of dealing with her evidence, the judge added:
"Members of the jury, that is my summary to you of the evidence she gave and I won't repeat the observation I made at the outset about the evidence from the witness box being that for you to assess as accurate and honest, or inaccurate and unreliable, what is in witness statements not being evidence in this trial."
26.	The question which we have to consider is whether those directions were sufficient or not.  It seems to us that it needs to be borne in mind that in the case of Ugorji relied on by the appellant, the witness who had been ruled hostile actually accepted under cross-examination by the Crown that his witness statement was true in respect of the crucial part of it.  In that situation this court took the view that the jury needed to be told to treat his evidence with caution.  
27.	The present case was very different.  The witness' evidence in court must have come across to the jury as confused and she never clearly accepted as true any part of her second witness statement which was really adverse to the appellant.  That is something Mr Heywood has accepted in the course of argument.  It follows that the jury must have realised that there was a very clear conflict between her evidence in court and the second witness statement which she had given to the police.  In those circumstances, the judge's direction at page 4 of the transcript, to which we have already referred, indicated that the jury might well regard her evidence as unreliable.  That was the sort of direction suggested by this court in the case of Maw.  Given the circumstances of the present case, this court does not regard the judge's directions about Jennifer Young's evidence as having been deficient.  They were sufficiently tailored to the factual circumstances of the case so as to give the jury proper guidance in their deliberations.
28.	The final ground concerns another witness ruled as hostile called Gerald Preece.  He was Karen Rawlings' brother.  In a witness statement he had described Karen and the appellant coming to his flat in North Devon.  She had then gone out a little later and after that Gerald Preece described in his witness statement getting a phone call saying that she had been arrested.  In the same statement he described the appellant then becoming very agitated and asking "How can I get out of here?  Is there a back way?".  Then the appellant, according to this statement, had asked to be locked into the next door flat to which Preece had a key.  That was what then happened.  However, in his evidence-in-chief at trial, Gerald Preece said that he could not remember what the appellant had said and that it was he, Preece, who had said that he would leave the appellant in the next door flat as his landlady might be visiting his own flat.  The judge, in those circumstances, acceded to a prosecution application to treat Preece as hostile.  
29.	That is now said to have been a wrongful exercise of discretion and that the Crown should not have been allowed to cross-examine him in the way that then ensued.  Mr Heywood, in his helpful written skeleton, describes Preece's departure from his witness statement as "minimal".  It is said that it made no practical difference whose idea it was that the appellant should be locked in the next door flat.  Moreover, he says, the judge gave inadequate directions to the jury as to how to treat Mr Preece's evidence.
30.	We need not deal further with that last point in that the conclusions we have reached in relation to the judge's directions on Jennifer Young apply with equal force to this witness.
31.	As to the suggestion that Preece's departure from his witness statement was minimal, we have to say that we profoundly disagree.  Preece's departures from that witness statement robbed his evidence of any value to the prosecution.  He may not have been a vital witness in the prosecution's case, but his witness statement did demonstrate a reaction on the appellant's part to the news of Karen's arrest, a reaction which could well have been treated by the jury as an indication of guilt.  It did matter whose idea it was that the appellant should be put into the next door flat.  On the witness' original out of court version of events, the appellant was seeking to hide there from the police.  On the version which he was giving in his evidence-in-chief at trial, the appellant was not.  We have no doubt at all as to the correctness of the trial judge's ruling on this particular issue.  It follows that we can see no force in this particular ground.  
32.	We make it clear that we have considered this ground and the other two on a cumulative basis as well as separately, but, even when we put all these matters together, we have no doubts as to the safety of these convictions.  The case against this appellant on these charges was a very strong one and this appeal is consequently dismissed.