Rogers, R v

Recognition evidence is not necessarily unfair merely because an officer knew of other inculpatory evidence before viewing images, or because there were breaches of Code D. The question is whether the evidence is so tainted that its admission would make the trial unfair or the conviction unsafe. Where its shortcomings can fairly be exposed and addressed by clear jury directions, a judge may admit it.

Previous similar convictions may properly prove propensity where they are relevant and the prosecution case is not inherently weak. A majority verdict following substantial deliberation does not render a conviction unsafe simply because jurors express concern about time. Sentence will not be reduced where it properly reflects persistent offending, targeting and the need to protect the public.

The appellant was convicted at Lewes Crown Court, sitting at Brighton, of dwelling-house burglary. DNA matching him was found on sunglasses left at the scene. Two police officers also recognised him from neighbouring CCTV images. He denied being present and advanced a possible alibi.

Before and during trial, the defence challenged the recognition evidence. It relied on the officers’ knowledge of the DNA evidence and, in relation to one officer, breaches of Code D. The Recorder admitted the evidence with directions. He also admitted the appellant’s previous local dwelling-burglary convictions as propensity evidence.

The appellant appealed against conviction and a five-year sentence. The central issues were whether the evidence and jury deliberations made the conviction unsafe, and whether the sentence was manifestly excessive.

1. Appeals dismissed. The conviction was safe and the five-year sentence was not manifestly excessive.

2. The Recorder correctly admitted DC Davis’s recognition evidence. His prior knowledge of the DNA result might have affected the weight of his recognition, but it did not require exclusion. It was a matter capable of being explored in cross-examination and addressed by a jury direction.

3. The Recorder also acted within his discretion in admitting PS Lynch’s recognition evidence despite the breaches of Code D and her knowledge of the DNA evidence. The court accepted that the procedural failures were material, but held that the evidence was not so tainted that exclusion was required. Its shortcomings could fairly be placed before the jury through cross-examination, submissions and a proper summing-up. The Recorder had carefully considered the available alternatives, including a direction to disregard the evidence and discharge of the jury. The approach was consistent with R v Forbes [2001] Cr App R 31; the comparison with R v JD [2012] EWCA Crim 2637 did not assist because the breach there had been flagrant.

4. The previous convictions plainly demonstrated propensity to commit domestic burglary. Their admission did not unfairly bolster a weak prosecution case. The DNA, recognition evidence and the failure of the suggested alibi supplied substantial independent evidence, and the jury received correct directions on the limited use of the convictions.

5. Nothing in the jury notes or timetable undermined the safety of the verdict. The issue was narrow, the summing-up was clear, the jury had deliberated for almost three hours before the majority direction and then returned an 11:1 verdict after further deliberation.

6. The Recorder was entitled to treat the burglary as targeted. The appellant’s extensive record, commission of the offence while on licence, absence of remorse and the need to protect the public justified the sentence. The court dismissed the sentence appeal.

• Court of Appeal (Criminal Division). Dismissed the appeals against conviction and sentence.
• Crown Court at Lewes, sitting at Brighton. The appellant was convicted by an 11:1 majority of dwelling-house burglary and sentenced to five years’ imprisonment.