Shervington, R. v

In a case resting on visual identification, the trial judge must assess the quality of that evidence at the close of the prosecution case. If its quality is poor, the case must be withdrawn unless other evidence supports the identification. The judge should give reasons for allowing such a case to continue, although failure to do so does not itself require an acquittal.

A tailored identification direction should not be weakened by personal gloss or prejudicial language. The decisive question is whether the summing-up, read as a whole, gave a sufficiently clear direction and left the jury to determine the issue fairly.

The appellant was convicted at the Inner London Crown Court of attempted robbery and assault occasioning actual bodily harm. The prosecution case depended upon the complainant’s identification of him as the man who struck the complainant with a vodka bottle during a street attack. The appellant disputed the identification and relied on an alibi.

He appealed against conviction on the grounds that there was no case to answer and that the recorder’s summing-up diluted an otherwise standard identification direction. The central issues were whether the identification evidence should have been withdrawn from the jury and whether the conviction was safe despite inappropriate comments in the summing-up.

1. Appeal dismissed. Despite deficiencies in the recorder’s handling of both issues, the identification evidence was properly left to the jury and the conviction was safe.

2. The court reaffirmed the safeguard stated in Turnbull [1976] 63 Cr App R 132. A judge must scrutinise identification evidence at the close of the prosecution case. Where its quality is poor, the judge must withdraw the case unless other evidence supports the correctness of the identification. The judge had failed adequately to analyse the relevant matters or explain why he allowed the case to proceed. That was wrong, but the appellate court had to decide whether his ruling was nevertheless within the range reasonably open to him.

3. It was. The delay before the identification parade, the fact that the appellant was a stranger, and discrepancies in the description were significant. However, the complainant had observed the assailant at close range in lighting good enough to read by. The discrepancy about an accent carried little weight because the assailant had said only three words. The description inconsistencies were not serious in their context. The evidence was therefore sufficient for jury consideration.

4. The recorder’s reference to a “mugger’s charter” and his addition of a personal gloss before the standard direction were inappropriate. A judge should tailor the standard JSB direction where necessary, but should not depart from its essential safeguards. It was also permissible, if done carefully, to identify matters capable of bearing on apparent weaknesses in the identification evidence.

5. Read as a whole, however, the summing-up gave a clear Turnbull direction. The jury were told that the prosecution case depended wholly on the correctness of the identification. The direction was not so diluted that the trial became unfair, and the conviction remained safe.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction.

• Inner London Crown Court: convicted the appellant of attempted robbery and assault occasioning actual bodily harm, and imposed 18 months’ detention in a young offenders institution.