Grigsby, R. v

Substantial discrepancies between a witness’s initial description and an accused’s appearance do not inevitably require an identification case to be withdrawn from the jury. The court must assess the evidence as a whole. A witness may give a poor description yet have had a sufficient opportunity to observe and later identify the offender. Where the witness deliberately observed the offender at close range, in good lighting and for more than a fleeting moment, the judge may leave the issue of identification to the jury despite weaknesses in the description.

The appellant was convicted at Blackfriars Crown Court of exposure contrary to section 66(1) of the Sexual Offences Act 2003. The complainant identified him as a man who had exposed himself while she and her daughter were walking at night.

His defence was mistaken identification and an alibi. He appealed, with leave of the full court, on the sole ground that the Recorder should have withdrawn the case from the jury at half-time because the complainant’s descriptions differed significantly from his actual height, hair and clothing. The central issue was whether those discrepancies made the identification evidence insufficient to leave to the jury.

1. Appeal dismissed. The Recorder was entitled to leave the identification issue to the jury, and the conviction was proper.

2. The discrepancies in the complainant’s descriptions were significant. They concerned principally the appellant’s height, his allegedly receding hair and whether he wore jeans or tracksuit bottoms. The Recorder had, however, addressed each discrepancy when ruling on the half-time submission.

3. A poor description does not necessarily demonstrate a poor ability to observe. The complainant’s evidence was not of a fleeting glance. She had deliberately tried to maintain eye contact, was very close to the man, described the lighting as good, and observed him for a significant period. Those features entitled the judge to regard the evidence as capable of supporting a reliable identification notwithstanding its weaknesses.

4. The appellant’s ownership of a silver car, his residence in the area and the timing of his alibi gave only limited additional support to the prosecution case. The issue nevertheless remained one properly for the jury. The jury heard the appellant and his wife give alibi evidence and rejected it. In all the circumstances, the case was correctly left to them.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction: [2009] EWCA Crim 220.

• Blackfriars Crown Court The appellant was convicted of exposure and received a community sentence.