REGINA v GARY ARTHUR ALLEN

A R v Turnbull direction is required where the prosecution case depends wholly or substantially on identification of the accused which the defence says is mistaken. It does not apply to defence identification evidence. A judge may nevertheless fairly remind jurors that honest identification mistakes can occur, irrespective of which party relies on the evidence.

In sentencing for murder, a finding of premeditation may concern a defendant’s settled targeting of a class of victim, rather than detailed planning of each killing. An appellate court will not interfere with a minimum term that was properly open to the sentencing judge under Sentencing Act 2020, Schedule 21.

The appellant was convicted at Sheffield Crown Court before Goose J of the murders of Samantha Cass in 1997 and Alena Grlakova in 2018. He received concurrent life sentences, with minimum terms of 30 years and 37 years respectively.

At trial, three defence witnesses said that they had seen Ms Grlakova in January 2019, after the prosecution alleged she had been murdered. The judge cautioned the jury about the possibility of honest identification mistakes. The appellant appealed against conviction on the basis that this was an impermissible modified Turnbull direction and that the judge wrongly curtailed one witness’s evidence of certainty. He also challenged the 37-year minimum term as manifestly excessive because premeditation had not been established.

1. Both appeals were dismissed. The conviction appeal rested on a false premise. The judge did not give a Turnbull direction, modified or otherwise. The prosecution did not rely on identification evidence, so a direction under R v Turnbull [1977] QB 224 would have been inappropriate.

2. The judge instead gave a fair summary of the defence sightings and briefly reminded the jury of the common experience that honest identification mistakes may be made. That observation was proper and did not unfairly encourage rejection of the defence evidence. The potential dangers of identification evidence, and the need for care, do not depend on which party relies on it. The court applied the observation in R v Jordan Ray Smith & Others [2019] EWCA Crim 1151 at [39].

3. The trial judge was entitled to prevent counsel from asking a witness how sure she was of the purported identification. The question would not have assisted the jury and was liable to cloud the issue of the standard of proof. In any event, allowing the witness to add that she was certain would not realistically have affected the jury’s assessment or the safety of the convictions.

4. On sentence, the sentencing judge’s reference to premeditation did not find that each murder had been carefully planned. It described the appellant’s general premeditation of serious violence against sex workers and his targeting of that group. The evidence entitled the judge to treat that as a significant aggravating feature. With the other aggravating features, little mitigation, and the statutory 30-year starting point, the 37-year minimum term was within the proper range and was not manifestly excessive.

• Court of Appeal (Criminal Division): dismissed the appeals against conviction and sentence in [2022] EWCA Crim 750.

• Sheffield Crown Court: Goose J and a jury convicted the appellant of two murders. The judge imposed concurrent life sentences with minimum terms of 30 years and 37 years.

• Court of Appeal (Criminal Division): in December 2020, a differently constituted court quashed the appellant’s 2000 acquittal for the murder of Samantha Cass and ordered a retrial.