R v Scott Garrington

Where identification evidence is poor, a case need not be withdrawn from the jury if other evidence is capable of supporting its correctness. The question on a submission of no case to answer is whether a properly directed and reasonable jury could, on one possible view of the prosecution evidence taken at its highest, convict. It is not whether every reasonable jury would draw the adverse inferences relied upon.

A witness who has acquired special knowledge by extensive analysis of CCTV images may give identification evidence by comparing them with contemporary photographs. The jury must assess its weight with all the circumstantial evidence. Apparent gaps or competing innocent explanations ordinarily remain matters for the jury unless they mean that no reasonable jury could convict.

The appellant was convicted unanimously in the Crown Court at Wolverhampton of murder, possession of a prohibited firearm, possessing bladed articles, and perverting the course of public justice. He received life imprisonment for murder with a minimum term of 22 years, subject to time on remand.

The prosecution alleged that he assisted a group which carried out a fatal attack by providing a base, helping with preparations and property, waiting near the getaway vehicle, and assisting in its destruction. Its case substantially depended on CCTV analysis by a witness who identified the appellant as profile P3 through comparison with custody photographs, together with telephone, ANPR and other circumstantial evidence.

The trial judge rejected a submission of no case to answer. The Full Court granted leave to appeal: [2024] EWCA Crim 1133. The central issue was whether the evidence, including the CCTV comparison, was sufficient to leave the case to the jury.

1. Appeal dismissed. The judge correctly rejected the submission of no case to answer, and the convictions were safe.
2. Under R v Turnbull [1977] QB 224, poor identification evidence does not automatically require a case to be withdrawn. The court must ask whether other evidence supports the identification and then apply the no-case principles in R v Galbraith [1981] 1 WLR 1039.
3. The CCTV analyst had acquired special knowledge through extensive viewing and analysis of the footage. His comparison of P3 with the appellant's custody photographs was capable of being identification evidence within Attorney General's Reference No. 2 of 2002 [2002] EWCA Crim 2373. The evidence identified points of consistency and no inconsistency. Its less-than-certain character affected weight, which was for the jury, rather than admissibility or legal sufficiency.
4. The correct no-case test is whether a reasonable jury could, on one possible view of the evidence taken at its highest, draw adverse inferences and reject realistic possibilities consistent with innocence. The prosecution did not have to establish that all reasonable juries, or any jury inevitably, would do so.
5. Viewed cumulatively, the evidence was sufficient. The appellant's proximity to his home, telephone contact with co-defendants, the movements and clothing of P3, P3's dealings with the group before and after the killing, and the use of the appellant's telephone were capable of supporting the conclusion that he was P3 and participated in the offences. The absence of footage for parts of P3's movements, the evidence concerning the fire, and the possibility that another person used the appellant's telephone were matters of argument for the jury. They did not render the prosecution case incapable of supporting conviction.

• Court of Appeal (Criminal Division) Dismissed the appellant's appeal against conviction. Leave had been granted by the Full Court: [2024] EWCA Crim 1133.
• Crown Court at Wolverhampton The appellant was convicted on 30 March 2023 and, on 12 June 2023, sentenced to life imprisonment for murder with a minimum term of 22 years less time on remand, with concurrent sentences for the remaining offences.