Ley, R. v

Where a renewed application for leave to appeal raises an arguable and apparently unresolved question about the directions required in a recognition-evidence case, leave should be granted so that the issue can be fully argued.

The court did not decide whether a trial judge who regards recognition evidence as insufficient without independent support must expressly direct the jury that it cannot convict unless it finds such support. That question was identified as the principal issue for the substantive appeal.

The applicant was convicted at the Central Criminal Court of aggravated burglary after a majority verdict. He was sentenced to seven years’ imprisonment. The prosecution case depended heavily on identification evidence from a witness who said that she recognised him during the burglary.

At trial, the defence submitted that there was no case to answer because the recognition was based on a fleeting observation in adverse conditions. The application was refused. After the Single Judge refused leave, the applicant renewed his application to the Court of Appeal.

The central issue identified for the proposed appeal was whether, where a judge considers recognition evidence incapable of safely supporting a conviction without independent support, the judge must direct the jury expressly not to convict unless it finds such reliable independent support.

1. Leave to appeal against conviction was granted. The court did not limit the grounds of leave, but indicated that the principal argument should concern the proposed direction on supporting evidence for the recognition.
2. The court was not minded to grant leave merely to challenge the refusal of the submission of no case to answer. The trial judge had characterised the observation underpinning the recognition as a fleeting glance made in unfavourable conditions, but the court did not determine whether the evidence should therefore have been withdrawn from the jury.
3. The court considered that the renewed application raised an issue not apparently clearly decided: whether a judge who has concluded that identification evidence would not safely support conviction unless supported by other independent evidence must go beyond directing the jury to examine available support. The proposed issue was whether the judge must also give a positive direction that, absent reliable independent support, the jury must not convict.
4. That question was left for determination on the substantive appeal. No conclusion was reached on the safety of the conviction.

• Court of Appeal (Criminal Division): Granted the renewed application for leave to appeal against conviction: [2006] EWCA Crim 1605.
• Single Judge: Refused leave to appeal against conviction.
• Central Criminal Court: The applicant was convicted of aggravated burglary and sentenced to seven years’ imprisonment.