Brown, R v

A trial judge may admit delayed video-identification evidence and a witness’s post-procedure comments where the jury need the full sequence to assess evidence on which the defence itself relies. The court must guard against converting a tentative or failed identification into a positive one, but delay and discrepancies in description do not automatically require exclusion. The weight of such evidence remains for the jury, particularly where there is strong independent evidence.

Previous firearms convictions may be capable of demonstrating a propensity to commit a murder involving a firearm. Their admission under the Criminal Justice Act 2003 will not be unfair merely because the charged offence is more serious, especially where substantial independent evidence supports the prosecution case.

The appellant appealed, with leave, against his conviction for murder at the Central Criminal Court and a life sentence with a minimum term of 33 years. The prosecution alleged a deliberate killing during a search for money. The principal evidence was the appellant’s fingerprints on documents found near the deceased’s body.

The appeal challenged the admission of the deceased’s wife’s evidence about a video-identification procedure conducted more than six years after the killing, including her subsequent comments. It also challenged the admission of previous firearms convictions as bad-character evidence. The central issues were whether either category of evidence should have been excluded and whether the conviction was safe.

1. Appeal dismissed. The court had no doubt that the conviction was safe. The fingerprint evidence was powerful. In particular, a fingerprint appeared on a recent document which the assailants had apparently disturbed while searching the bedroom. No plausible innocent explanation was advanced for its presence.

2. The judge was entitled to admit the whole of the video-identification sequence, including the witness’s later comments. The court accepted the warning in George [2002] EWCA Crim. 1923 against converting an equivocal identification into a positive one. Here, however, the evidence was neither a positive nor a qualified identification. Its weight was a matter for the jury.

   The defence had relied on the differences between the witness’s early descriptions and the appellant’s appearance. In those circumstances, the jury were entitled to know the entire course of the procedure so as to assess that evidence fairly. The long delay did not compel exclusion, particularly as it arose during the appellant’s absence from the jurisdiction and the procedure had been conducted properly.

3. The previous firearms convictions were admissible under Criminal Justice Act 2003 section 101(1)(d). Under section 103(1)(a), the appellant’s record was capable of showing a propensity to commit the charged offence. The convictions were not rendered irrelevant because the charge was murder rather than a possession offence.

   The fairness safeguard in section 101(3) did not require exclusion. This was not a weak prosecution case constructed from bad-character evidence. The independent fingerprint evidence was compelling, and the careful summing-up attracted no criticism.

1. Court of Appeal (Criminal Division): In [2011] EWCA Crim 80, the court dismissed the appeal and held the murder conviction safe.

2. Central Criminal Court: Following a jury trial before Judge Barker QC, the appellant was convicted of murder and sentenced to life imprisonment with a minimum term of 33 years, less time spent on remand.