Phillips, R. v

Where the prosecution relies on recognition evidence, the jury must receive a direction tailored to the particular means of recognition and its weaknesses. Recognition by voice, general appearance or eyes remains identification evidence. The jury must be warned that an honest and convincing witness may nevertheless be mistaken, including in a recognition case.

Where voice recognition is material, an equivalent warning is required. General directions framed for a fleeting visual identification will not suffice if they do not address the specific limitations of the evidence. Evidence merely consistent with guilt, but not probative of it, cannot cure a material inadequacy in the identification direction.

The appellant was convicted at the Crown Court at Inner London of aggravated burglary and sentenced to eight years’ imprisonment. The prosecution alleged that he was the masked intruder, identified by the two complainants principally through voice, general appearance and, in one case, his eyes. A footprint was consistent with the type and size of trainers he later wore.

On appeal, the appellant challenged the adequacy of the identification direction, the summing-up of evidence concerning another suspect, the admission of evidence of an earlier encounter, and late disclosure relating to that suspect’s separate trial. The central issue was whether the conviction was safe despite the directions given on disputed recognition evidence.

1. Appeal allowed. The conviction was unsafe and was quashed. The court had a clear sense of unease that the jury had not been sufficiently alerted to the dangers of the identification evidence.
2. The recorder’s direction was inadequate for this case. The evidence was not an ordinary fleeting visual identification. Neither complainant identified the appellant by his face. Their asserted recognition depended materially on voice, general appearance and, in one instance, eyes. A tailored Turnbull direction should have made clear that even convincing witnesses may be mistaken and that recognition itself may be mistaken.
3. The jury should also have been directed to the particular weaknesses in the evidence. Those included the complainants’ degree of familiarity with the appellant, their opportunity to assess the intruder’s build and appearance, the effect of the hood and bandana, and their familiarity with his voice. Since voice recognition was important, the jury required a warning equivalent to that required for identification, consistently with Hersey [1998] Crim LR 281. The footprint evidence was consistent with guilt but did not itself prove it and could not make the conviction safe.
4. The court considered that the judge should also have reminded the jury of the defence argument arising from evidence connecting Osman Banjura with the burglary. A judge need not rehearse every argument, but the omission of a significant defence point in a short summing-up risked suggesting that it had no significance.
5. The evidence of an earlier encounter between Mr Grant and the appellant was properly admitted. It was relevant to the source and strength of Mr Grant’s claimed knowledge of the appellant. The jury was correctly directed to use it only for that purpose and not as evidence of guilt.
6. The Crown’s failure to comply with disclosure orders was lamentable. Although the undisclosed material was not shown to have made a material difference, the judge should have allowed defence counsel more time to absorb the belated disclosure. Robust case management requires parties to comply with orders.
7. A retrial was ordered. The existing count was quashed, a fresh indictment was directed, and the appellant was remanded in custody pending the retrial, with liberty to apply to the Crown Court for bail.

• Court of Appeal (Criminal Division) In [2007] EWCA Crim 1042, allowed the appeal, quashed the conviction and ordered a retrial.
• Crown Court at Inner London The appellant was convicted of aggravated burglary on 12 May 2006 and was sentenced to eight years’ imprisonment on 4 October 2006.