REGINA v JAMES LONG

A conviction is unsafe where the prosecution’s case depends on identifying the accused as a particular attacker but the evidence demonstrates that the attacker was a different person. Such a case should not be left to the jury merely because the accused was present shortly before the offence and acted in a manner capable of suspicion.

A prosecutor should not secure the equivalent of a dock identification from a witness who failed to identify the accused at an earlier identification procedure, absent a proper justification. This is particularly so where the purported identification conflates two demonstrably different individuals. The resulting unfairness may independently render the conviction unsafe.

The appellant was convicted of robbery at Wolverhampton Crown Court after a jury trial before Judge Campbell, and was later sentenced to five years and six months’ imprisonment. He appealed against conviction on the grounds that there was no case to answer and that the prosecution had obtained the equivalent of a dock identification.

The complainant had identified a smaller, dark-haired man in dark clothing as the person who emerged from a car boot carrying a hammer and attacked him. The appellant was a different person: he had blond hair, wore a light top, had been in an off-licence, and was seen leaving the car after an earlier collision. The complainant had failed to identify him at an identification procedure. At trial, however, the complainant was invited to identify CCTV footage of the appellant in the shop as showing the attacker who emerged from the boot.

1. Appeal allowed. The court quashed the robbery conviction and ordered no retrial.

2. The Crown case was that three men attacked the complainant: the driver, a tall passenger, and a third man who emerged from the boot carrying a hammer. The evidence established that the appellant was not that third man. The third attacker was dark-haired, wore dark clothing and emerged from the boot. The appellant had blond hair, wore a light top, and had been in the off-licence before leaving the car after the first collision.

3. The complainant’s assertion that the appellant was both the man in the shop and the man from the boot was impossible. There was no other evidence that the appellant took part in the crucial events of the robbery. His presence in the vehicle and his running along the road did not provide a sufficient evidential link to the attack. The submission of no case to answer should therefore have succeeded.

4. The prosecution’s questioning also wrongly obtained the equivalent of a dock identification. It invited the complainant, who had failed to identify the appellant at the earlier identification procedure, to equate CCTV footage of the appellant in the shop with the separate attacker who emerged from the boot. That approach was misleading because it merged two distinct individuals, and it was highly unsatisfactory in the circumstances.

5. Although the trial judge gave careful and appropriate directions, neither the flawed evidential basis nor the unfair identification procedure could support the verdict. The conviction was unsafe.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction and quashed the appellant’s robbery conviction; no retrial was ordered.

• Crown Court at Wolverhampton: The appellant was convicted by a jury of robbery on 30 September 2021 and sentenced on 20 January 2022 to five years and six months’ imprisonment.