Issan (aka Arundell), R. v

In a case depending wholly or substantially on identification or recognition evidence, the jury must receive a direction that exposes them to the full force of the risks of mistaken identification. The direction must be tailored to the evidence; its adequacy depends on the summing-up read as a whole, rather than on use of a prescribed formula. A deficient formulation will not make a conviction unsafe where the jury were nevertheless adequately warned to exercise caution, alerted to the possibility of serious mistakes in recognition, and directed to assess the circumstances bearing on reliability.

The appellant was convicted at Peterborough Crown Court of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. The prosecution case depended principally on Kathryn Watkins’s recognition of him as the person who chased and stabbed her.

On appeal, the appellant challenged the recorder’s summing-up. He contended that the direction on recognition evidence did not adequately reflect the safeguards required by R v Turnbull [1977] QB 224. He also challenged the recorder’s treatment of another witness’s evidence and his description of the complainant’s explanation for her delayed identification.

The central issue was whether the shortcomings in the summing-up, separately or cumulatively, rendered the conviction unsafe.

1. Appeal dismissed. Although the recorder’s summing-up contained errors, the conviction was not unsafe.

2. Where the prosecution relies wholly or substantially on identification or recognition evidence, a Turnbull direction must be given. Its substance must alert the jury to the particular danger of mistaken recognition and direct them to examine the circumstances affecting reliability.

3. The recorder’s direction was deficient. He did not expressly tell the jury that an honest witness may nevertheless be mistaken, and he wrongly presented the risks of misidentification as a matter of common sense. The court emphasised that published guidance should be used and adapted to the facts of the case.

4. Read as a whole, however, the direction exposed the jury to the full force of the relevant dangers. The recorder twice warned them to be careful; explained that extraordinary mistakes can occur even in recognising well-known people; and directed attention to distance, lighting, fear, movement and drinking. The recognition was also of a person whom the complainant knew well, seen at close range on more than one occasion.

5. The recorder should not have peremptorily told the jury to ignore Kinlan’s evidence. It was for them to assess its weight. Nor should he have described the complainant’s explanation for her delayed identification as a “good” reason without qualification. Neither point, however, amounted to a material misdirection. Taken individually and cumulatively, the errors did not render the conviction unsafe.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction: [2016] EWCA Crim 2271.
• Peterborough Crown Court: On 8 April 2016, the appellant was convicted of wounding with intent. On 18 May 2016, he received four years’ imprisonment for that offence.