Tonzarah & Anor, R. v

Photographic overlay evidence comparing actors of known height with a suspect filmed by a fixed CCTV camera may be admissible as a limited height comparison. It is not novel science merely because it is described as “reverse projection”. The images must be aligned, comparable, clear and undistorted. Any limits arising from stance, footwear or imperfect replication ordinarily affect weight, provided the jury receives appropriate cautionary directions.

For conspiracy to rob, the prosecution need not prove the precise role played by each conspirator. It must prove that the defendant was a conspirator who intended that the robbery would be carried out by one or more conspirators.

Barnes and Burton were convicted after trial of conspiracy to rob. Barnes was also convicted of possessing a firearm while committing a Schedule 1 offence, contrary to section 17(2) of the Firearms Act 1968. The prosecution case was circumstantial and included CCTV footage, the recovery of shotgun barrels, mobile-phone material and glass fragments found in Barnes’s clothing.

Barnes appealed against conviction, principally challenging evidence produced by a CCTV manager who compared recordings of actors of known height with the robber shown on the crime-scene footage. Both appellants contended that Burton had no case to answer. Barnes also advanced abuse-of-process and disclosure grounds. Burton sought leave to appeal against sentence.

The central issues were the admissibility of the height-comparison evidence, the sufficiency of the circumstantial evidence against Burton, and whether his sentence was arguably excessive.

1. The court dismissed Barnes’s appeal against conviction. The photographic-overlay technique used to compare actors of known height with the gunman was admissible for the limited purpose of estimating height. It used familiar photographic methods rather than a novel science. A valid comparison required properly aligned, comparable, clear and undistorted images. The inability to replicate every movement exactly, and the possible effects of stance and footwear, created a margin of error but went to weight rather than admissibility.

   The Recorder was entitled to admit the evidence after examining the material himself. He correctly left its weight to the jury and gave careful warnings against treating it as absolutely accurate. The absence of a more finely graduated range of actors did not undermine its admissibility. There was no expert evidence challenging the accuracy of the work. The evidence, together with the other circumstantial material, provided a sound case against Barnes.

2. The court refused leave on Barnes’s additional grounds. The prosecution’s amendment from attempted robbery to conspiracy to rob did not approach an abuse of process. The alleged investigative and disclosure shortcomings were matters explored at trial, and the jury had been directed to take any evidential gaps into account when deciding whether the prosecution had proved guilt beyond doubt.

3. Burton’s appeal against conviction was dismissed. The judge properly rejected the submission of no case to answer. The evidence, viewed with the case against Barnes, was capable of supporting the conclusion that Burton was a conspirator. The prosecution did not have to establish Burton’s precise role in the attempted robbery. It was sufficient for the jury to be sure that he was party to the conspiracy and intended that one or more conspirators would carry out the robbery.

4. Burton’s renewed application for leave to appeal against sentence was refused. The sentencing judge had not found that Burton knew a firearm would be discharged. He was entitled to find that the conspirators knew that a weapon would be used. A seven-year sentence after trial for an attempted post-office robbery involving weapons was not arguably excessive.

• Court of Appeal (Criminal Division): Barnes’s appeal against conviction was dismissed. Burton was granted leave to appeal against conviction, but that appeal was dismissed. His renewed application for leave to appeal against sentence was refused.
• Crown Court at Nottingham: Barnes and Burton were convicted of conspiracy to rob. Barnes was also convicted of possessing a firearm while committing a Schedule 1 offence under section 17(2) of the Firearms Act 1968. Barnes received a total sentence of 17 years’ imprisonment and Burton received 11 years’ imprisonment.