Neutral Citation Number: [2017] EWCA Crim 1851 
Case No. 2017/01263/C1
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Friday3rd November 2017

B e f o r e:
LORD  JUSTICE  SIMON

MR  JUSTICE  DOVE

and

THE  RECORDER  OF  PRESTON
(His Honour Judge Brown)
(Sitting as a Judge of the Court of Appeal Criminal Division)
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R E G I N A
 
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DANIEL  GLEN  HAY
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Mr P Arnold appeared on behalf of the Appellant 

Mr M Barnes appeared on behalf of the Crown
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J U D G M E N T

LORD JUSTICE SIMON:  
1.  On 17th February 2017, in the Crown Court at Warwick before Mr Recorder Lowe and a jury, the appellant was convicted of a single count of robbery (count 3 on the indictment).  On 10th May 2017, he was sentenced to a term of 5 years' imprisonment.

2.  A co-defendant, Matthew Baines, had earlier pleaded guilty to two counts of robbery (counts 1 and 3); and he been sentenced to a total of 6 years and 8 months' imprisonment.

3.  The appellant appeals against his conviction on count 3 with the leave of the single judge.

4.  On 9th August 2016, at about 4.45pm, the post office in Bishops Itchington was robbed by three men.  They had arrived by car.  All three were masked.  One man (Baines) attacked the shopkeeper and forced him to hand over more than £1,000 in cash.  A second man (referred to as "robber 2") guarded the door, and a third was the driver of the car.  Baines was left behind when the other two drove away and had to make his escape on foot.  He was caught on the outskirts of the village.  A new axe and a pair of gloves were recovered nearby.

5.  The post office was covered by CCTV and images were recorded.  These and further police enquiries led the investigation to a hardware store, Homebase, where, approximately three hours before the robbery, the appellant and Baines could be seen on CCTV buying industrial gloves.  Baines also bought an axe from the same store shortly afterwards.

6.  The appellant was arrested on 15th August.  A bandana was recovered from his home.

7.  In his police interview he denied being involved in the robbery, but was unable to provide details of where he was at time it had occurred (6 days earlier).

8.  The prosecution case was that the appellant was robber 2.  Eyewitness and police evidence was largely agreed.  The prosecution relied on the following circumstantial and expert evidence to prove its case against the appellant: 

1.  The CCTV footage of the robbery and the purchase of equipment in Homebase, in particular the CCTV recordings of the appellant and Baines arriving together at Homebase before the robbery and the appellant visiting a particular aisle in which axes were for sale.

2.  Evidence that the appellant bought gloves of the exact make and type used by robber 2, using cash passed to him by Baines, and that shortly afterwards Baines bought the axe used in the robbery.

3.  The appellant's largely "no comment" interview, but his lie when he denied that he had been in Homebase. 

4.  The guilty plea of Baines, who accepted that he was the man who had wielded the axe and assaulted the shopkeeper.

5.  The expert evidence of image analysis.  The prosecution relied on the evidence of William Platts.  He had analysed the CCTV footage of the two men in Homebase, in the post office, and of the appellant later in the police station.  He had also been provided with the bandana found at the appellant's home and a pair of gloves of the type purchased at Homebase.  He concluded that there were six similarities and no differences between the physical characteristics of the men shown in the footage: the build, the skin tone, the nose, the eyes and the height were the same in all three.  There were similarities in the clothing worn in the images taken in Homebase and in the post office, between the gloves purchased by the appellant, and the gloves worn by robber 2, and the face covering that was worn in the robbery and the bandana found in the appellant's home.

6.  The bandana scarf was available to the jury.  It had been found at the appellant's home.  The prosecution invited the jury to conclude that it matched the one seen in the CCTV footage of the robbery.

7.  The fact that the appellant had provided an alibi in his defence statement, having refused in his interview to say where he had been at the time of the robbery.  The prosecution was able to undermine the statement made by the appellant's girlfriend by evidence that showed she was at a bank in Coventry at 4.30 pm on the day of the robbery.

8.  The longstanding friendship between the appellant and Baines, whose driving licence had been found in the car linked to the appellant.

9.  The appellant's previous conviction for robbery.

9.  This last element of the prosecution case was in evidence following an application to adduce it under the bad character provisions of Part 11, Chapter 1 of the Criminal Justice Act 2003.  The Recorder ruled in favour of its admission.  It is this ruling and the Recorder's summing up in relation to the previous conviction that gives rise to the two issues on this appeal.  

10.  The issue for the jury was whether the man at the door of the post office ("robber 2") was the appellant.  The defence accepted that he had been in Homebase 4 hours earlier with Baines, but denied that he had been with him when he bought the axe, or that had been involved in the robbery.  The evidence of the prosecution imaging expert, Mr Platts, was subject to challenge on the basis that the clothing worn by the men who were recorded on the CCTV images was clothing that was commonly worn and that any similarities in build and height were not so significant that of themselves they could produce any degree of certainty that the men were the same.  The appellant also relied on alibi evidence.

11.  The appellant gave evidence in his defence.  He told the jury that he had lived in the village for about twelve months and had used the post office many times.  He worked full-time as an electrician.  He had worn glasses for about eleven years and wore them all the time.  He accepted that he had pleaded guilty to robbery in 2003.  He said that he had known Baines for four or five years and that on the day of the robbery Baines had come to his house at about 11.15 am.  They went to Homebase, arriving at about 12.30 pm.  He said that he went to buy gloves for Baines and then got a lift back home with a friend.  He said that by the time Baines bought the axe, he would have been back home.

12.  His evidence was that, after he arrived home, he went to visit the person who lived in the flat below his until between 2.30 and 3.00 pm.  He then went to Cubbington Village and on to Budleigh Hall, where he arrived a couple of minutes before 5 pm.  At the time of the robbery, he was in Cubbington.  He explained that, when the police arrived, he was hiding because he was scared.  He denied that the bandana was his.  He said that it was his girlfriend's and that he did not know it was in the house.

13.  In cross-examination he accepted that he needed glasses for reading and not for distance.  He played football and boxed without them.  He said that he could not remember when Baines had left the driving licence in his car.  It could have been anything up to a month before it was found.  He told the jury that he did not know why Baines wanted gloves, nor why he did not choose them for himself.  He denied that they were bought to prevent him leaving fingerprints at the robbery.  He remembered stopping briefly by the display showing the axes.  He said that when he told the police that he was with Baines at 2.30 pm, he had mistaken the time for the day before.  He said that he was back in his flat by 12.35 pm.  He agreed that he had denied visiting Homebase in his interview.  His explanation was that by that stage he had realised that Baines had been involved in the robbery.  He was asked about his evidence that he was visiting a friend in Cubbington at the time of the robbery and asked why this had not been mentioned either to the police or in the defence statement.  He said that he could not explain that.  He had told his solicitors, but had not wanted to drag others into it.  He was unable to explain why he had not mentioned his alibi witnesses in his police interview, but maintained that he told his legal team.

14.  As we have already noted, there were two alibi witnesses who also gave evidence as to their recollection of events on 9th August 2016.

15.  We return to the prosecution application to rely on bad character evidence under the gateway in section 101(1)(d) and section 103 of the Criminal Justice Act 2003 (commonly referred to as the "propensity provisions", although this is not always an accurate description).  The appellant had pleaded guilty to an offence of robbery on 3rd March 2003 in the Crown Court at Manchester.  The offence had taken place on 8th April, when he and another man had threatened a security guard and stolen a cash box containing £14,500.  The robbers had been masked, armed with a sword, and they had made off in a waiting car.  

16.  In his Ruling admitting the evidence, the Recorder referred to a passage in Blackstone's Criminal Practice at F13.38 and the decision of this court in R v Jordan [2009] EWCA Crim 953.  He ruled that the conviction was relevant and admissible in circumstances where a defendant was asserting an innocent association with a co-accused (who had pleaded guilty to the robbery) at a store in which the axe had been obtained for use in the robbery some 3 hours before the crime had been committed.  The jury should know that in the past the appellant had committed an offence of robbery.  The jury would be addressed by experienced counsel and would be properly directed as to the reliance they could place on the conviction.

17.  As we have previously indicated, this Ruling gives rise to the first ground of appeal.  Mr Arnold, who appears on behalf of the appellant, submits that the Recorder erred in admitting the bad character evidence.  He failed to focus on the real issue in the case, which was whether the jury could be sure that the appellant was "robber 2".  The facts of the instant case were significantly different from those in Jordan, and the single conviction was so long ago and of such limited similarity that its use in refuting the account of innocent association did not conform with the provisions of the Criminal Justice Act 2003 and was otherwise unfair.  In oral argument, Mr Arnold pointed to the differences between the present case and Jordan and identified the real issue here as being proximity.  There was a difference in timing and there was a difference in proximity, both of which should have been the focus of the Recorder's Ruling.  He accepted in general that coincidence can be rebutted under the provisions of Chapter 11, but submitted that this was not a proper case for so doing.

18.  Mr Barnes, who appears on behalf of the prosecution, submitted that the previous conviction was properly admitted as relevant to the central issue of whether the appellant was "robber 2" under section 101(1)(d) of the 2003 Act.  Specifically, the appellant's previous conviction was relevant to rebut his assertion that there was an innocent explanation for a number of features of the prosecution evidence that were relied on in support of its case that he was "robber 2": first, he was accompanying his long-term friend (the co-accused Baines) at the hardware store a short time before the axe used in the robbery was purchased; second, his browsing with Baines in the axe section of the store; and third, himself buying a pair of gloves of the exact make and type worn by "robber 2".  Mr Barnes submitted that the line of reasoning adopted by the court in Jordan should be applied and that the conviction was particularly probative and relevant as tending to prove the improbability of coincidence.

19.  In our view, the evidence of the appellant's previous conviction was properly admitted under section 101(1)(d) in the present case.  It was evidence that was relevant to an important matter in issue between the defence and the prosecution.  It was evidence used to rebut an innocent explanation of, or an explanation of coincidence in relation to, evidence which was relied on by the prosecution.  As this court said in R v Cambridge [2011] EWCA Crim 2009 at [9]:

"The common law has long accepted that evidence may be admitted at the behest of the Crown to rebut a defence of mistake, accident or innocent association.  The relevant line of authority includes such well-known cases as Makin v Attorney General for New South Wales [1894] AC 57 and DPP v Boardman [1975] AC 421.  It is clear moreover that bad character evidence may be admitted under section 101(1)(d) for a similar purpose.  …"

20.  The court in Cambridge then referred to the earlier decision of this court in Jordan, which was referred to by the Recorder in his Ruling.  In Jordan, the court addressed a submission by Mr Fell (counsel for the appellant Jordan) that section 101(1)(d) and section 103(1) only permitted bad character evidence to show propensity.  The court said this:

"20.  In general terms, to our mind, Mr Fell's arguments overlooked one very significant matter.  Section 103(1) states that 'matters in in issue' between the defendant and the prosecution for the purposes of section 101 include the question whether the defendant has a propensity.  'Matters in issue' are not limited to questions of propensity.  One important matter in issue here was whether or not the appellant knew there was a firearm in the car.  It was to rebut his claim that he just happened to find himself sitting above the firearm, in other words to rebut his claim of innocent association or coincidence, that the Crown in reality sought to adduce evidence of his previous convictions.  The admissibility of evidence to rebut coincidence or innocent association was recognised by this court in Groves [1998] Cr LR 2000, but also more recently in Chopra [2007] 1 Cr App R 16, whereby this court acknowledged that coincidence or unlikelihood of coincidence continued to be relevant under the provisions of the Criminal Justice Act 2003.

21.  Further, we note that the possession of firearms in this country to commit an armed robbery, although by no means unique, is still mercifully a comparatively rare offence, certainly when compared to the huge number of offences of street robberies.  It was therefore a perfectly legitimate argument, in our judgment, that the appellant, who claimed to be sitting in a car which was going to be used in an armed robbery as a result of unhappy chance, had previously committed an offence of possessing a gun and had previously committed an offence of robbery.  …"

21.  The Recorder referred to the latter point in the course of his Ruling, but, in our view, it is the point made in [20] that is material to the present appeal.  "Matters in issue" are not limited to propensity.  A "matter in issue" can arise when a defendant seeks to explain potentially incriminating evidence of association with someone involved in a crime as "innocent association" or to rebut coincidence.  Whether or not an association is innocent or coincidental may be an important matter in issue between the defendant and the prosecution within the meaning of section 101(1)(d).

22.  In the present case, the matters in issue arose from the appellant's explanation of innocent association with Baines at Homebase before the robbery, at a time when a number of potentially incriminating purchases were made by Baines who was involved in the robbery.  We would add that in this case, as in Jordan (see [22]), issues of propensity, coincidence and innocent association were closely associated and that the directions to the jury in relation to bad character would not be dissimilar to those that would be given if the evidence had been admitted as evidence of propensity.

23.  It is to the summing-up that we now return.  The Recorder dealt with the previous convictions at pages 12C to 13D.  He reminded the jury about the evidence of the appellant's conviction for robbery.  He warned them against prejudice and over-reliance on the evidence.  He also explained why they had heard it: 
"So, why have you heard about it [the previous conviction] at all?  Well, [the appellant] says that it is a complete coincidence that he was with Mr Baines hours before the robbery, that it is a complete coincidence that there are certain physical and clothing similarities between what he was wearing at Homebase before the robbery and what the robber was wearing at the post office and also, of course, that he was elsewhere.  And the prosecution say that when considering [the appellant's] account, bearing in mind, of course, that the burden of proof is on them, you should at least know about that previous offence."

The Recorder then added:
"It is not in itself evidence upon which you can say [the appellant] was guilty of this offence of armed robbery.  It is simply part of the background.  You are entitled to consider it and when judging the facts and considering [the appellant's] explanation and how much weight you attach to that previous conviction are decisions for you and you alone to make."

This passage, which conflated a number of issues, was, in our view, less helpful to the jury than it might have been.

24.  Mr Arnold submitted that the Recorder failed properly to direct the jury as to the relevance of the bad character evidence.  The issue was complicated by the Recorder reciting the general arguments of the prosecution and the defence.  He complained about a passage in the summing-up (at page 12D-G) when the Recorder referred to the defence closing speech:
"Mr Arnold in his address to you said that the prosecution were saying, 'Once a robber, always a robber', and, with all due respect, that probably is what the prosecution were saying.  If the prosecution were saying that, I would be saying in no uncertain terms, 'No, you simply cannot say that'."

25.  In our view, the word "not" has been missed out either by the Recorder himself or by the transcriber.  The context (with the reference "with all due respect") and his indication of what he would have said if the prosecution had said that makes it clear that the Recorder's intention was to say: "With all due respect [to defence counsel], that is probably not what the prosecution were saying".  

26.  More substantially, Mr Arnold complains that the Recorder failed properly to direct the jury as to the significance of previous convictions.  He should have identified the arguments for the relevance of the conviction and the arguments for and against bearing it in mind when considering the case against the appellant and for him.  The defence had said that he was with Baines 3 hours before the robbery; that he had not been involved in bringing the axe; and that he was miles away at the time of the robbery.

27.  Mr Barnes submitted that the direction on how to approach the previous conviction was sufficient and adequate.  Crucially, the jury was told that they could not and should not convict solely on the basis of the previous conviction, but that it was to be borne in mind when considering the improbability of multiple coincidences.  In any event, he submitted that the strength of the evidence was such that the conviction could properly be regarded as safe.

28.  The summing-up informed the jury of why they had heard the evidence of the appellant's previous conviction, warned them against prejudice and over-reliance, directed them that they were entitled to consider it when assessing the appellant's explanation and that it was for them to decide how much it assisted them.  It is true that the Recorder might have added those specific points relied on by Mr Arnold, but those appeared elsewhere in the summing-up – points that the appellant was entitled to make and that the jury should consider.  The reference to it being "simply part of the background" was confusing but, in our view, there was no material misdirection.

29.  The prosecution had a strong circumstantial case, and the appellant's equivocations in interview and his failure to mention matters later relied on cannot have assisted him in the eyes of the jury.  We do not regard this conviction as unsafe.  Accordingly, the appeal will be dismissed.

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