All England Law Reports/1987/Volume 1 /R v Cook –  1 All ER 1049
 1 All ER 1049
R v Cook
COURT OF APPEAL, CRIMINAL DIVISION
WATKINS LJ, DRAKE AND OGNALL JJ
13 NOVEMBER, 9 DECEMBER 1986
Criminal evidence – Identity – Photofit picture – Admissibility – Whether photofit picture admissible in evidence – Whether admission of photofit picture contrary to hearsay rule.
A photofit picture of a defendant is admissible at his trial as part of a witness’s evidence and does not constitute a breach of either the hearsay rule or the rule against the admission of earlier consistent statements (see p 1054 j, post).
R v Tolson (1864) 4 F & F 103 applied.
R v Percy Smith  Crim LR 511 considered.
For proof of identity, see 11 Halsbury’s Laws (4th edn) para 363, and for cases on the subject, see 14(2) Digest (Reissue) 486-490, 4008-4038.
For hearsay evidence, see 11 Halsbury’s Laws (4th edn) 437-439, and for cases on the subject, see 14(2) Digest (Reissue) 596-598, 4841-4842.
Cases referred to in judgment
Jones v Metcalfe  3 All ER 205,  1 WLR 1286, DC.
Myers v DPP  2 All ER 881,  AC 1001,  3 WLR 145, HL.
R v O’Brien, Nicholson and Nicholson  Crim LR 746.
R v Okorodu  Crim LR 747, Crown Ct.
R v Percy Smith  Crim LR 511, CA.
R v Tolson (1864) 4 F & F 103, 176 ER 488, Assizes.
R v Turnbull  3 All ER 549,  QB 224,  3 WLR 445, CA.
Sparks v R  1 All ER 727,  AC 964,  2 WLR 566, PC.
 1 All ER 1049 at 1050
Case also cited
R v Christie  AC 545, [1914-15] All ER Rep 63, HL.
Appeals against conviction and sentence
Christopher Cook appealed with leave of Roch J against his conviction on 27 March 1986 in the Crown Court at Acton before his Honour Judge Palmer and a jury on one count of robbery and one count of indecent assault for which he was sentenced to concurrent terms of three years’ youth custody. He also appealed against the sentences. The facts are set out in the judgment of the court.
RD Roebuck for the appellant.
Sally O’Neill for the Crown.
Cur adv vult
9 December 1986. The following judgment was delivered.
On 27 March 1986, before his Honour Judge Palmer, the appellant was at the Crown Court at Acton convicted on the first of three indictments of robbery and indecent assault. For these offences he was sentenced to concurrent terms of youth custody. On a second indictment for burglary, to which he had pleaded guilty, he was sentenced to one year’s youth custody concurrent with the first indictment. On a third indictment for a number of offences of taking a vehicle without consent, driving whilst disqualified and common assault he was sentenced to concurrent terms of one year’s youth custody to run consecutively to the second indictment. For breach of a probation order he was sentenced to one year’s youth custody concurrent. He was also disqualified from holding a driving licence for three years. He appeals, inter alia, against his convictions for robbery and indecent assault.
The evidence which resulted in the convictions can be summarised in this way. Miss Diane Tanswell lives in Edgware. On 17 October 1984, at about 6 pm, when making her way home from work, she was walking along Broadfields Avenue when a man suddenly grabbed her from behind. She fell to the ground. He demanded money and jewellery. He tried without success to pull a ring from her finger. He grabbed her right wrist and touched her vaginal area over her clothing and made repeated further demands for money. Her handbag had when she fell spilt its contents on the pavement. Her assailant pulled down his trousers, exposed his penis and threatened her with more violence. He then took money from her purse and ran away.
The following day she reported the matter to the police. She described her assailant as a tall, thin, coloured man, about 20 years of age with a puckered or pock-marked face. He was, she said, wearing a grey tracksuit with a black stain on the trousers and a black woollen peaked cap. She maintained that she had a clear view of him from the light of a nearby street lamp when she was assaulted. From her description of him on 19 October a photofit picture was pieced together and photographed by a police officer.
On 26 November 1984 the appellant was arrested for another offence. His home was searched and a pair of tracksuit trousers with a black stain on them were found. When the appellant was questioned about the robbery of Miss Tanswell he denied being involved in it.
On 4 February 1985 he was again arrested in connection with other matters. During the course of an ensuing interview a detective sergeant referred to the robbery of Miss Tanswell. The file on the case was not to hand, but a report sheet and the photofit were. The photofit was shown to the appellant and he agreed that it looked like him and that it might point to his having been involved in the robbery. He went on to make full and detailed admissions of both the robbery and the indecent assault. The interview was
 1 All ER 1049 at 1051
contemporaneously recorded. At its conclusion the appellant was charged with robbing and indecently assaulting Miss Tanswell.
The evidence of confession given by the police officers to the jury was challenged by the appellant, who claimed that admissions had been extracted from him by bullying and violence. They were, he said, untrue. He had agreed to suggestions put to him merely in order to obtain bail. In any event the admissions he actually made were not, he claimed, in the form recorded at the time of the interview.
Sometime between 26 November 1984 and 4 February 1985 an unsuccessful attempt was made to hold an identification parade. On 30 July 1985 the police decided to hold an alternative process of identification. They took Miss Tanswell to the Brent Cross shopping centre and asked her to stand at the top of an escalator. The appellant, with five or six men of similar appearance, was brought up the escalator. They were bunched together apparently so that Miss Tanswell was unable to see any of them clearly. She became agitated at being unable to make any kind of identification. However, as she was walking away, accompanied by a friend, from the shopping centre she saw the appellant on his own in the street and began to cry. A police inspector asked her what was troubling her, whereupon she pointed the appellant out as the man who had attacked her. It was suggested to her in cross-examination that the only reason why she was distressed on that occasion was because she badly wanted someone to be charged for assaulting her.
During the course of the trial it was submitted in the absence of the jury by counsel for the defence that the photofit was inadmissible in evidence. To put it before the jury would be, it was said, to introduce a previous consistent statement. Further, a basic principle of the hearsay rule would be offended against. Reference was made to R v Percy Smith  Crim LR 511 (we have seen the full transcript), R v O’Brien, Nicholson and Nicholson  Crim LR 746 and R v Okorodu  Crim LR 747.
The judge ruled as follows:
‘I rule that this photofit picture is admissible evidence to go before the jury. It is admissible on the basis that it is part of the circumstances of the identification of the defendant and the proper identification of the defendant, and, if that in itself is not a good enough reason, I rely on the fact that it was shown to the defendant in interview and, although that might have been excluded if the witness herself was not going to be called, here she is going to be called and I see no reason why the photofit picture should not be permitted in evidence and shown to the jury even if it does differ from a written statement describing the defendant, describing his features, clothing and so on. This is a likeness of the defendant in the same way that a photograph is a likeness of the defendant and so, therefore, in my judgment, it is admissible.’
Counsel for the appellant (who did not appear in the court below) has made to us broadly speaking similar submissions to those made to the judge before counsel for the prosecution opened the case to the jury. In addition to the cases already mentioned, he has referred to us to the well-known case on identification, namely R v Turnbull  3 All ER 549,  QB 224, as well as to passages in Phipson on Evidence (13th edn, 1982) pp 336-340, paras 16-09-16-10, Cross on Evidence (6th edn, 1985) p 472 and Archbold’s Pleading, Evidence and Practice in Criminal Cases (42nd edn, 1985) pp 953-954, 2201, paras 11-3 and 27-11. He has also reminded us that in Sparks v R  1 All ER 727 at 735,  AC 964 at 981 Lord Morris stated: ‘There is no rule which permits the giving of hearsay evidence merely because it relates to identity.’
It is submitted that the judge was wrong to allow counsel for the Crown to refer in opening to the photofit and wrong to allow it to be introduced into evidence whilst Miss Tanswell was giving evidence-in-chief. This, he argues, constituted a material irregularity which should cause us to quash the convictions. A photofit is, he asserts, a self-serving previously consistent statement. Unlike what is said at an identification parade it does
 1 All ER 1049 at 1052
not constitute an exception to the rule against hearsay. Exceptions to the rule can only be made by statute. A photofit is not, he argues, a photograph or even similar to a photograph. It is no more than an attempted description of someone.
In R v Percy Smith  Crim LR 511, a case of attempted murder, a sketch of the defendant had been made by a police officer in accordance with a description of him provided by a young girl who had seen him at a relevant time near the scene of the crime. An unsuccessful objection was made by counsel for the defence to the admissibility of that sketch. On appeal Lawton LJ, giving the judgment of the court, observed:
‘Then came the trial. At the trial the prosecution sought to put in the sketch which had been made by the police officer under the direction of Karen. [Counsel for the defendant] objected to it. The objection was that it was not Karen Barton’s document and therefore it was not admissible in evidence. Before us the argument put forward on behalf of the appellant by [counsel] was that the document could only have come into existence as a result of the conversation between Karen and the police officer making the sketch, and that what Karen had said to the police officer and what he had said to her was not admissible evidence because it was hearsay. That was right. But the prosecution at the trial never sought to put in evidence what was said by Karen to the police officer and vice versa. It was submitted that what was said was a necessary link between Karen and the sketch. In our judgment it was not. Karen, using her memory, had directed the sketching hand of the police officer. The result of exercising her memory in that way was to produce a sketch which was admissible in evidence. It was her sketch made through the hand of the police officer. We can see no reason for saying that that sketch was not admissible in evidence.’
Counsel for the appellant says, rightly in our view, that the argument as to admissibility addressed to the court in R v Percy Smith was altogether different from the challenge which is here made to the admissibility of the photofit. As appears from the foregoing extract from the judgment the objection to the admissibility of the sketch was based on the contention that it was not Karen’s document and further that the document could only have come into existence as a result of the conversation between Karen and a police officer. No submission was made to the effect that the sketch was a self-serving previously made consistent statement. That, so it is said, may account for the court feeling able to say that there was no reason why the sketch was not admissible in evidence. It might have ruled differently if arguments similar to those presented to us had been made to the court in R v Percy Smith.
The single judge in giving leave stated:
‘The appeal against conviction raised the issue whether admitting a photofit picture as part of the complainant’s evidence-in-chief is a breach of the general rule against the admission of earlier consistent statements. This point which does not appear to have been argued in R v Percy Smith seems to be one of some importance.’
We think it undoubtedly is of importance and we agree that the issue arising for our decision was not argued in R v Percy Smith.
The opinion as to admissibility of a sketch expressed in that case has been criticised by a number of well-known academics. It was followed in R v Okorodu  Crim LR 747 but not in R v O’Brien, Nicholson and Nicholson  Crim LR 746. The objection to it is as clearly stated as anywhere else in the commentary on those two cases, which quotes from Murphy; A Practical Approach to Evidence (1980) p 130 (see  Crim LR at 748). The relevant passage is as follows:
‘There is some authority on the point. In Percy Smith a sketch of a man made by a police officer at the direction of a witness was ruled admissible to show likeness. The hearsay rule was not broken, said the Court of Appeal, because there was no need to
 1 All ER 1049 at 1053
rely on any conversation between the witness and the officer in order to link the witness to the sketch. This seems, with respect, to miss the point, and indeed to demonstrate that what is being relied on is the witness’s out of court identification. The point is well put by Murphy: “If the eyewitness had made a written statement of the man’s description to the police, such statement would have amounted to a previous consistent statement, and would not have been admissible. It is true that, if contemporaneous, she might have used it to refresh her memory while giving evidence, and this would surely apply equally to the sketch; but it is hard to see why the sketch should itself be admissible, whether made by the eyewitness or by the officer at her direction. One can hardly fail to sympathise with the plight of any court which is obliged to apply such inconvenient and surely unnecessary rules of law, but piecemeal judicial reform of such a fundamental topic often involves, as here, a process of reasoning which is not at all happy.” On the law, then, O’Brien is closer to the truth than Okorodu. What part common sense plays in the result is for the reader to judge.’
We have no doubt that the common sense of the matter leans heavily in the direction of indorsing the opinion expressed in R v Percy Smith. It is right to add that in our experience photofits have been admitted to evidence without objection in a number of cases, in recent times anyway. That does not, of course, mean that they really are strictly speaking admissible. So we must confront the issue and endeavour to resolve it.
We begin by stating what on authority is in our judgment beyond dispute, namely that Miss Tanswell when in the witness box could have been permitted to see the photofit which she had observed being composed for the purpose of refreshing her memory. In Jones v Metcalfe  3 All ER 205,  1 WLR 1286 an independent witness to a collision between two cars caused by the action of a lorry going in the opposite direction gave the registration number of the lorry to a police officer. When in the witness box in the magistrates’ court he could not remember it and could not be permitted to be assisted by anyone or anything to remember it.
Diplock LJ, agreeing with Lord Parker CJ in the result, said ( 3 All ER 205 at 208,  1 WLR 1286 at 1290-1291):
‘I reluctantly agree. Like LORD PARKER, C.J., I have every sympathy with the magistrates because the inference of fact that the appellant was the driver of the lorry at the time of the accident is irresistible as a matter of common sense; but this is a branch of the law which has little to do with common sense. The inference that the appellant was the driver of the lorry was really an inference of what the independent witness had said to the police when he gave them the number of the lorry, and since what he had said to the police would have been inadmissible as hearsay, to infer what he said to the police is inadmissible also. What makes it even more absurd is, as LORD PARKER, C.J., pointed out, that if when the independent witness gave the number of the lorry to the policeman, the policeman had written it down in his presence, the policeman’s note could have been shown to the independent witness and he could have used it, not to tell the magistrates what he told the policeman, but to refresh his memory. This case does illustrate the need to reform the law of evidence, in order to overcome these difficulties, on the lines which are set out in the recent report of the Law Reform Committee (13th Report (Hearsay Evidence in Civil Proceedings) (Cmnd 2964)); but the law of evidence being still as it is, I reluctantly agree that the conviction must be set aside.’
Using a photofit for the purpose of refreshing memory may be regarded as a step in the right direction but it cannot of itself have the effect of rendering the photofit admissible so as to enable the jury to see it. If either the hearsay rule or the rule against the admission of a previous consistent statement is applicable to this situation, the evidence of photofit being, as must be acknowledged, no exception to these rules there
 1 All ER 1049 at 1054
would be no reason in our view why the submission made on the appellant’s behalf should not succeed. But we question whether either of those rules apply to evidence of a photofit.
The rule against hearsay is described in Cross on Evidence (6th edn, 1985) p 453 as one of the oldest, most complex and most confusing of the exclusionary rules of evidence. The author quotes Lord Reid as having said in Myers v DPP  2 All ER 881 at 884,  AC 1001 at 1019-1020: ‘It is difficult to make any general statement about the law of hearsay evidence which is entirely accurate … ‘
We agree with all that. What, however, is clear is that what was said by a prospective witness to a police officer in the absence of a defendant is hearsay and cannot, therefore, be admissible as evidence. But admissibility of a photofit is not dependent on a recital by a witness when giving evidence of what that person said to the police officer composing it. So that aspect of hearsay need no further be considered.
The rule is said to apply not only to assertions made orally, but to those made in writing or by conduct. Never so far as we know has it been held to apply to this comparatively modern form of evidence, namely the sketch made by the police officer to accord with the witness’s recollection of a suspect’s physical characteristics and mode of dress and the even more modern photofit compiled from an identical source. Both are manifestations of the seeing eye, translations of vision onto paper through the medium of a police officer’s skill of drawing or composing which a witness does not possess. The police officer is merely doing what the witness could do if possessing the requisite skill. When drawing or composing he is akin to a camera without, of course, being able to match in clarity the photograph of a person or scene which a camera automatically produces.
There is no doubt that a photograph taken, for example, of a suspect during the commission of an offence is admissible. In a bigamy case, namely R v Tolson (1864) 4 F & F 103 at 104, 176 ER 488, Willes J said:
‘The photograph was admissible because it is only a visible representation of the image or impression made upon the minds of the witnesses by the sight of the person or the object it represents; and, therefore is, in reality, only another species of the evidence which persons give of identity, when they speak merely from memory.’
That ruling has never since been doubted and is applied with regularity to photographs, including those taken nowadays automatically in banks during a robbery. Such photographs are invaluable aids to identification of criminals. It has never been suggested of them that they are subject to the rule against hearsay.
We regard the production of the sketch or photofit by a police officer making a graphic representation of a witness’s memory as another form of the camera at work, albeit imperfectly and not produced contemporaneously with the material incident but soon or fairly soon afterwards. As we perceive it the photofit is not a statement in writing made in the absence of a defendant or anything resembling it in the sense that this very old rule against hearsay has ever been expressed to embrace. It is we think sui generis, that is to say the only one of its kind. It is a thing apart, the admissibility to evidence of which would not be in breach of the hearsay rule.
Seeing that we do not regard the photofit as a statement at all it cannot come within the description of an earlier consistent statement which, save in exceptional circumstances, cannot ever be admissible in evidence. The true position is in our view that the photograph, the sketch and the photofit are in a class of evidence of their own to which neither the rule against hearsay nor the rule against the admission of an earlier consistent statement applies.
For these reasons we think the judge was correct in this case in his decision to admit to evidence the photofit. Accordingly, the appeal against conviction is dismissed.
 1 All ER 1049 at 1055
[The court heard further submissions from counsel on the appeal against the sentence but, being satisfied that the sentences were appropriate, dismissed the appeal.]
Appeals dismissed. The court refused to certify, under s 33(2) of the Criminal Appeal Act 1968, that a point of law of general public importance was involved in the decision.
Solicitors: S B Gilinsky & Co, Edgware (for the appellant); Crown Prosecution Service, Acton (for the prosecution).
Raina Levy Barrister.