Appeal against conviction, on the ground of unsatisfactory identification evidence dismissed. Sentence of 18 months reduced to 12 months as the judge had taken insufficient account of the different antecedents of the co-accused.Appeal against conviction and sentence with leave of the single judge. The appellant ('O') was convicted of affray and sentenced to 18 months' imprisonment. He was acquitted on a second count of wounding with intent. O appealed against both conviction and sentence. O and a co-accused ('B'), had been involved in a fight and a subsequent attack on the victim ('V') at a pub. Both O and B had left the scene of the crime, but were later arrested by the police who took them back to the pub. They were identified by the witnesses through the windows of the pub as those who had been involved in the fight and the attack on V. They were at the time of the identification surrounded by the police. The identification was critical evidence against O, and was the subject of a submission at the trial of no case to answer. The grounds of appeal were that (i) the judge erred by failing to withdraw the case from the jury because of the weakness of the identification evidence; (ii) that the judge had erred in finding in law that there was independent evidence supporting the correctness of the identifications; and (iii) that the judge erred in law in finding that there had been no breach of Code D2.17 Police and Criminal Evidence Act 1984. O submitted that the weaknesses in the identifications were such that they failed the test laid out in R v Turnbull (1977) QB 224. He particularly relied on the following matters: (a) that the two witnesses both stated that they could have been mistaken, (b) that the period under observation was a maximum of five seconds; (c) that the lighting was not good and that the observation had been made through a door or window; (d) that the appearance of the appellant differed from the descriptions given by the three main prosecution witnesses (e) that a witness's identification was contaminated by her purported identification of both men; and (f) that identification was further contaminated by the police surrounding O as they brought him to the pub (a breach of Code D2.17). O submitted that the conviction for affray was unsafe because it was inconsistent with O's acquittal for wounding. O further submitted that the judge erred in principle in sentencing him for an offence on which the jury had acquitted him.HELD: (1) The judge made no error of law and reached a decision for valid reasons which were fairly within the area of her judgment and discretion. (2) The present case was totally unlike the classic fleeting glance identifications which the Turnbull (supra) had in mind. (3) In respect of the specific matters relied upon by the appellant (a); the answers of the witnesses were honest reflections of the possibilities of mistake (b); five seconds was all that was needed for the recognition process (c); the evidence was to the contrary: the street lighting was good (d); there were undoubtedly discrepancies, and these could all be placed before the jury; (e) there was no breach of Code D2.17 as there had been no time for an orderly process. (4) The judge could have gone further in listing independent support for the identification. However, the appellant had admitted being present at the scene of the incident both before and after it occurred. (5) The verdicts were logical and safe. The jury were sure that O had been involved in the affray, but they were not sure that he had been the man who inflicted the wounds. (6) O had no convictions other than two spent ones. He had never previously been the subject of a custodial sentence. The judge treated O as the leader of the violent behaviour. The judge did not sentence the appellant for an offence on which the jury had acquitted him. She was bound to take into account the injuries which had arisen out of the affray, even if the appellant was not guilty of himself inflicting them. Given his acquittal on the wounding charge, the court was uncertain that the judge was right to say that O was the leader of the violent behaviour that night. Her instinct that both co-accused should suffer the same penalty was the right one, but she should have taken account of the very different antecedents of each. (7) In these circumstances, the sentence of eighteen months was substituted for one of twelve months.Appeal against conviction dismissed. Sentence of 18 months reduced to 12 months

[2003] EWCA Crim 1370

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