Dossett, R v

Visual-identification evidence need not be withdrawn where the original observation was sufficiently good for a properly directed jury to assess it, despite difficult conditions and identified weaknesses. The jury must receive clear warnings about the danger of mistaken identification and the particular weaknesses in the evidence.

Previous convictions may support identification or establish propensity only where they are relevant to an important issue and their admission does not adversely affect fairness under section 101(3) of the Criminal Justice Act 2003. Propensity requires a logical connection between the prior offending and the specific offence charged. Striking similarity is unnecessary, but a vague preparedness to commit similar crime is insufficient.

The appellant was convicted at the Crown Court at Winchester of robbery and sentenced to nine years’ imprisonment. Two victims had been attacked in the street and a handbag taken. One victim identified the appellant during an identification procedure, while DNA from blood on a receipt in the handbag linked the co-accused to the robbery. The appellant relied on an alibi, and the co-accused was acquitted.

The trial judge declined to withdraw the identification evidence from the jury. She also admitted the appellant’s previous convictions for robbery with the co-accused and for an assault on another man in the same area. The appeal challenged both rulings. The court also considered an application for leave to appeal against sentence.

1. The appeal against conviction was dismissed and leave to appeal against sentence was refused. The visual-identification evidence was sufficient to leave to the jury. Although the lighting was poor and the witness had been attacked, he had a short but clear and close view of one attacker’s face with the street lighting on it. This was not a fleeting-glance case. The judge had to give, and did give, appropriate warnings and identify the weaknesses in accordance with R v Turnbull [1977] Q.B. 224.

2. The judge had erred in referring, when ruling that there was a case to answer, to support that might be provided by previous convictions which had not yet been admitted. The error did not affect the ruling. Her decision to leave the case to the jury rested on the identification evidence alone.

3. The previous convictions were admissible. Under section 101(3) of the Criminal Justice Act 2003, the questions were whether the evidence was relevant to an important matter in issue and whether admission would adversely affect trial fairness. Applying the guidance in R v Hanson [2005] EWCA Crim 824, the court held that similarity must be assessed by the circumstances of each conviction, not merely its label. A strikingly similar prior offence was unnecessary, but there had to be a logical basis for finding that the prior conduct made the appellant more likely to have committed the charged crime.

4. That basis existed. The two prior offences, considered together, involved opportunistic public violence against strangers in the same area and with another man. The prior joint robbery also linked the appellant to the co-accused, whose DNA was connected to the stolen property. Consistently with R v Eastlake [2007] EWCA Crim 603, this could support the visual identification as well as propensity. The judge’s careful directions explained the limited use of the evidence and guarded against conviction solely or mainly on bad character.

5. The nine-year sentence for a robbery involving serious injury was unassailable. A judge’s willingness to reconsider sentence under section 155(1) of the Powers of Criminal Courts (Sentencing) Act 2000 did not create an expectation that the sentence would be varied.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction and refused leave to appeal against sentence: [2013] EWCA Crim 710.
• Crown Court at Winchester — convicted the appellant of robbery on 18 May 2012 and imposed nine years’ imprisonment.