Neutral Citation Number:
[2017] EWCA Crim 1134
Case No:
201700226 B3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday 13 July 2017
B e f o r e
:
LADY JUSTICE RAFFERTY DBE
MR JUSTICE SWEENEY
HIS HONOUR JUDGE ZEIDMAN QC
(Sitting as a Judge of the CACD)
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R E G I N A
MARCIN DARIUSZ PURLIS
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Mr R Jenkins
appeared on behalf of the
Appellant
Miss R Beckett
appeared on behalf of the
Crown
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J U D G M E N T (Approved)
1.
LADY JUSTICE RAFFERTY: On 16th December 2016 in the Crown Court sitting at Lewes Marcin Dariusz Purlis, 36, was convicted of robbery and sentenced to 12 years' imprisonment. By leave of the single judge he challenges the safety of his conviction.
2.
On 9th July 2015 at about 10 am an armed robbery outside a branch of HSBC in Eastbourne saw the security guard Mr Jackman robbed of a cash box by a man who used a hammer repeatedly to strike him to his torso and his legs. The robber took the empty cash box from Mr Jackman's security van to a getaway vehicle and a nearby dashboard camera, popularly called a "dashcam", captured the robber departing the scene in the car. The Crown's case was that he was the appellant. It led agreed evidence about the circumstances of the robbery and the layout of the scene, images of the robber on the dashcam, that the appellant's home was 0.9 mile from the bank; that the getaway Volkswagen Golf bore false number plates and had been stolen, that it and the empty cash box were found abandoned a few streets from the appellant's home; and that the appellant raised an alibi during his second police interview relying upon a plasterer, Steven Beard whom it called so as to controvert the alibi.
3.
Finally it led evidence from facial mapping expert Clive Evans. He told the jury that by comparing images from the dashcam with photographs of the appellant he could identify features which taken together lent powerful support to the contention that the images were of the same man and which did not exclude the appellant
4.
The defence was alibi. The appellant told the jury that at the time of the robbery he was at home with by Beard. He suggested the facial mapping evidence was mistaken and relied on the absence of science to link him to the van,Golf or cash box, and that Beard had made a mistake about his own timings. He relied on his good character.
5.
Mr Jackman told the jury he reached the bank at about 09.32 and made six or seven trips in and out. The dashcam showed the robber leaving with his booty at 1006. Mr Beard's evidence was that he had gone to the appellant's address nearby at 0800 and was let in by a woman. At 0815 a man in dark clothing arrived and Mr Beard himself quit the address at 0945. He agreed he had told the police initially that he departed at 0955 but he explained that that had been an error. 0955 was the timing of a mobile telephone call to his next customer whilst he sat outside the appellant's address which, he repeated, he had quit at 0945.
6.
Mr Evans recounted his more than 27 years experience of imagery analysis, and that images from the dashcam were of good quality. The lighting was natural and the robber (referred to as "Man X") close to the camera. There were 30 frames per second. Over some 16 hours his analysis took in facial landmarks of Man X - for example eyes, lips, ears - which did not permit him to exclude the appellant. He reviewed similarities between Man X and an image of the appellant. Both had visible dark tone marks around the face, the face was medium sized, the nose had a slight upward tilt, rounded tip and slightly flared left alae, the chin had a darker tone effect and was cleft, there was a cupid's bow, the left ear had a similar lobe, outer rim and folded helix, similar detail in shape and form of the tragus and antetragus. His conclusion was that imagery lent powerful support to the contention that Man X and the appellant were the same and on the scale of support used by experts such as himself powerful was the uppermost. He could not discount the possibility that someone not the appellant but who nevertheless bore striking resemblance to the appellant could be Man X. He agreed the comparison was as good as the quality of the images. He conceded he was working on only one side of the face, not square on; that the facial comparison of the imagery overall was fair to good and that there exists no national database of physical features and that it was impossible for him to help the jury with statistical analysis of probability of imagery matching. Finally, he also accepted that his opinion, albeit as an acknowledged expert and based upon experience, was necessarily a subjective assessment.
7.
The appellant told the jury he had no convictions for violence or for any similar offence, that at the time of the robbery he was at home, Beard with him until 11 that morning. He was not the robber and he left his house no earlier than one o’clock in the afternoon.
8.
Leave was given by the single judge in respect of the judge's directions to the jury on its approach to the evidence of the facial mapping, the complaint being that they were inadequate. The appellant renews his application for leave to argue others.
9.
Mr Jenkins, who also appeared below, argues that the case depended entirely upon the evidence of facial mapping. He has no complaint about the judge's standard direction as to expertise but a good many complaints about how the judge elaborated upon the relevance, importance and status of the expertise.
10.
The judge had in mind
Atkins
[2009] EWCA Crim. 1876
where Hughes LJ in paragraphs 23 and 30 said the court accepted the caution with which any expressed conclusion based on evidence of this kind needs to be approached. It is not based upon a statistical database and that must be made crystal clear to the jury. He added:
Without attempting to ordain a form of summing up which can fit every case, we observe that in some instances it may help the jury for the judge to explain that the forms of expression are labels applied by the witness to his opinion of the significance of his findings and different experts may not attach the same label to the same degree of comparability."
11.
Mr Jenkins argues that the
Atkins
approach is absolutely necessary in the index case. Additionally the Crown Court Compendium at 10.3 paragraph 13 reads:
"It may be necessary to incorporate one or more of the [Atkins] directions:
...
(c) In a case where an expert expresses an opinion in relative terms, a direction in accordance with Atkins ... "
12.
The complaint is that the judge failed to make it sufficiently clear to the jury that there was a need for caution and failed to spell out in crystal clear terms the limitations and the weaknesses of the expert evidence. Mr Jenkins concedes that the judge spent some 20 minutes detailing the evidence of Mr Evans but he is criticised for failing to conduct a dispassionate review of the deficiencies that arose as a consequence of the limitations of the expertise. Mr Jenkins concedes that the judge was entitled to review the evidence in chief in detail but his complaint is that that made it all the more important that the judge made clear the limitations.
13.
The difficulty Mr Jenkins faces is that the judge did. Having set the scene for the expert evidence he said (26A to 27C) that Mr Evans recognised he could not discount the possibility that someone strikingly resembling the appellant could be Man X; that the comparison was as good as the quality of the images; that he was working on but one side of the face, not square on; that the facial imagery comparison was fair to good; that the images of Man X were slightly tilted so not in exactly the same position as the photographs of the appellant; that there is no national database; a statistical probability to assist the jury is not possible; and his opinion was subjective rather than based on scientific analysis. This is plainly what Hughes LJ had in mind in
Atkins
when pointing out that one expert might take a different view on the same set of facts.
14.
The judge continued:
"Bringing these threads together, it is important that you approach the evidence of facial mapping ... with caution. That does not mean that you cannot rely on the expert evidence ... Simply that it needs to be considered ... with care. Mr Evans considers that the imagery evidence lends powerful support to the contention that Man X and Mr Purlis are the same man. But you should remember this, that, as Mr Evans conceded, there is no database ... his opinion is based on his experience and his expertise over many years. Because there is no national database ... or any mathematical formulae, as is the case with fingerprints, or statistics as to the probability of occurrence of particular facial characteristics in the population at large, as in the case of DNA evidence, you cannot gauge the results of an expert's analysis of imagery in the same way as fingerprint or DNA evidence. The fact that there is no statistical database ... is something you should clearly have in mind. But that does not mean that the absence of such a database means that no opinion can be expressed by Mr Evans beyond stating his examination of the images ... An expert who spends many years studying this kind of evidence ... can properly form a judgment as to the significance of what he has found ... It is a judgment based on his experience. It is for you to decide whether to accept the evidence."
15.
We struggle to identify any deficiency in that full and fair approach.
16.
Mr Jenkins also complained that the judge did not explain or underline to the jury that there is a difference between imagery establishing the positive and imagery capable of excluding. We suggest that the quotation through which we have just gone demonstrates that that is a complaint without substance.
17.
The next complaint is as to the way the judge approached the evidence of Mr Beard. The Crown called him. The defence to an extent relied on what he said since the defence was and always remained alibi. To explain his evidence that he quit the house at 0945, which would have allowed the appellant time to reach the scene of the robbery, the defendant told the jury that Beard had to be mistaken as to his timings.
18.
The judge was criticised for this passage:
"As the prosecution have to prove the defendant's guilt, so that you are sure of it, Mr Purlis does not have to prove he was elsewhere at the time. On the contrary, the Crown must disprove any alibi evidence and satisfy you, so that you are sure, that the alibi relied on by the defendant is wrong. In this case the prosecution have sought to do that by calling Mr Beard who said he left [the address] at 9.45 am. Even if you consider that Mr Purlis is wrong or may be wrong on his timings, or that Mr Beard may be wrong as to when he left ... that does not by itself entitle you to convict the defendant. It is a matter which you may take into account. But you should only convict the defendant if the prosecution have satisfied you, so that you are sure, he was at the HSBC branch, at the bank, at the time the robbery took place and that he committed this crime."
19.
Invited to explain where in that passage the judge fell into error, we think Mr Jenkins said the judge should have told the jury it had to be sure Beard was wrong on his timings and sure of the time at which the appellant left. As was pointed out in dialogue, within that passage is the classic standard direction of alibi. It had been preceded by the judge telling the jury that it was for the Crown to prove the defendant's guilt and that Mr Purlis did not have to prove he was elsewhere at the time. We are entirely unconvinced that the judge fell into any error. That passage, classic and well-expressed, gave the jury clear, accurate directions and is unimpugnable. Beard initially told police he was at the appellant's address at 09.55. It is worth reminding ourselves that in an earlier part of the summing-up the judge rehearsed the two timings Beard had explained. He described exactly what Beard had said about timing and that he told the jury that was wrong, he had been confused. It is difficult to see how much more help the jury could have had.
20.
Mr Jenkins seeks leave to renew his application in respect of the release into local media of an image of the robber. Circulation effectively limited it to the vicinity of the robbery. That, Mr Jenkins suggests, went to the absence of a wider database and to the possibility of a mistaken identification. It is impossible, he says, to know how many males nationwide would have resembled Man X. The judge did not remind the jury that the photograph was released only into the local media.
21.
We are not surprised. There was no need.
22.
Mr Jenkins next relies on insufficient drawing of the attention of the jury to the absence of supporting evidence tending to demonstrate guilt. Though science and other potential supporting evidence was mentioned in the summing-up, the judge is said to have failed adequately to draw to the jury's attention what was not there. That is, no science to link the defendant by fingerprints to the stolen money box. The judge is criticised for saying merely that there was "nothing to link the defendant on any one of [these items]". What the judge said is described by Mr Jenkins as neutral, whereas what was needed was a positive rehearsal of the compelling point that the DNA of three others (not including the appellant) was on the handle of the cash box.
23.
In our view the first difficulty is that such evidence is not compelling. Second, if there were a perceived omission counsel did not invite the judge to remedy it. There is nothing in the point.
24.
Next in the list of things insufficiently drawn to the attention of the jury is that there was no CCTV evidence showing the arrival of the stolen getaway car moments before the robbery, during a period when the Crown's case was that the appellant would have had the opportunity to leave home and arrive and that the judge failed to make clear that the Golf was not linked to the defendant.
25.
We make the same comments. The judge explained to the jury areas where it should concentrate. There is nothing in the point.
26.
Finally in his catalogue of omissions Mr Jenkins complained that when dealing with the evidence as to mobile phones the judge should have told the jury that there were no calls or messages of relevance found upon it.
27.
The judge told the jury that the evidence was that there was no CCTV outside the bank or anywhere else. DNA and forensic fingerprint analysis of the van, the Golf and the cash box did not link the defendant to the robbery. His house was searched again. No hammer, no baseball cap and no clothing was found to link him to the robbery. The Golf used in the robbery was found to be stolen and using false plates. It was stolen with its keys in a burglary in West London in June 2015 and had been seen to leave South London the evening before the robbery and was seen entering Sussex on the evening of 8th July 2015 (the day before the robbery at quarter to midnight. The real vehicle, the registration number, was in Liverpool. The defendant's mobile phone was seized to ascertain whether he had any phone calls or text messages about the vehicle at the time it was found.
28.
If we headed that extract "What there wasn't", it is a reasonable description of the trouble the judge took to make the jury aware of what the Crown could not lead.
29.
The judge, Mr Jenkins finally submits, should have reminded the jury much more forcefully than he did of the need for caution to avoid the risk of injustice, that an honest witness can be a mistaken witness and that a convincing witness can be a mistaken witness.
30.
Read from start to finish this summing-up contains every direction necessary. It is balanced and fair.
31.
We have not been persuaded there is any merit in any of those grounds so far considered.
32.
We turn finally to the complaint that the judge should have supplied to the jury written directions and a route to verdict.
33.
Most judges, we suggest, and probably in a majority of cases, either supply written directions or routes to verdict or at least contemplate so doing before deciding against it. The more serious the case, the more stratified the approach the jury will have to take, and the more helpful are written legal directions and an algorithmic approach to verdicts.
34.
This case was straightforward. There was one issue: identification. There was no need for a written route to verdict. The summing-up set out the jury's task lucidly, explicitly and unimpugnably.
35.
Consequently, for all the reasons we have given, where renewed leave was sought we reject it, and where leave was given this appeal against conviction is dismissed.