Harty, R. v

Where the prosecution case depends on visual identification, the jury must receive an especially careful and fact-specific direction about the risk of mistake. A standard list of identification factors is insufficient unless it explains the particular weaknesses in the evidence, including material discrepancies between an initial description and the defendant’s appearance.

Where bad-character convictions are admitted, the jury must be directed to their proper and limited use. The judge must identify the basis for admission, the relevant propensity, and the proper approach to credibility. Misdirections on either issue may render a conviction unsafe.

The appellant was convicted at the Crown Court sitting at Leicester of attempted robbery and sentenced to five years’ imprisonment. The prosecution relied principally on visual identifications by the complainant and her husband.

The complainant had been shown a Facebook photograph by a neighbour, who asked whether it depicted her attacker, before she later identified the appellant in a formal identification procedure. The appellant denied the offence and relied on an alibi. His previous convictions were admitted as bad-character evidence.

On appeal, he contended that the judge’s directions on identification and bad character were inadequate. The central issue was whether those directions left his conviction safe.

1. Appeal allowed. The court quashed the conviction because the directions on identification and bad character, separately and cumulatively, called its safety into question.

2. In a case dependent on visual identification, the jury must be given especial warning of the risk of mistaken identification. The familiar Turnbull direction requires the jury to understand that even two apparently convincing witnesses may both be mistaken. The judge must also identify material differences between the witnesses’ first descriptions and the defendant’s appearance.

3. The judge’s written and oral direction listed general matters such as duration, distance and lighting, but did not sufficiently explain how the jury should assess the particular weaknesses in this evidence. It did not adequately highlight the discrepancies in description or the significance of the complainant having been shown a photograph in a prompting context. Those deficiencies went to the core risks inherent in identification evidence.

4. The court also identified serious defects in the bad-character direction. The judge had not identified the gateway or gateways on which the convictions were admitted. The jury should have been directed to decide whether the convictions demonstrated a propensity to rob, rather than merely a propensity for violence. If considering credibility, it also required guidance about the appellant’s challenge to the Crown witnesses and his previous guilty pleas.

5. Either ground was sufficient to render the conviction unsafe; together they did so more strongly. A fresh indictment was directed, the appellant was to be re-arraigned within two months, and the venue of the retrial was to be determined by the Presiding Judge of the Midland Circuit.

• Court of Appeal (Criminal Division): By [2016] EWCA Crim 345, allowed the appeal, quashed the conviction for attempted robbery, and directed a retrial.
• Crown Court sitting at Leicester: On 18 May 2015, convicted the appellant of attempted robbery and sentenced him to five years’ imprisonment.