REGINA v. DODSON ; REGINA v. WILLIAMS

 

Weekly Law Reports (ICLR)/1984/Volume 1 /REGINA   v.   DODSON ; REGINA   v.   WILLIAMS  – [1984] 1 WLR 971

 

[1984] 1 WLR 971

REGINA   v.   DODSON ; REGINA   v.   WILLIAMS

[COURT OF APPEAL]

 1984 April 9; 12

 

 Watkins L.J., Park and Jupp JJ.

 Crime — Evidence — Identity — Photographs taken by automatic security cameras — Cameras activated during attempted armed robbery — Whether photographs admissible in evidence

 

Three armed men entered a building society office; one of them fired a shot gun and shattered a glass bandit-screen on the counter. The manager operated the alarm button. This activated two security cameras which began taking photographs at half-second intervals. The armed men ran away, empty-handed. Sometime later the two appellants were arrested and charged, inter alia, with attempted robbery and possessing firearms with intent. To connect them with the raid on the building society office the prosecution relied on the evidence of the photographs of the raiders taken by the security cameras, together with admissions allegedly made by each man after arrest. At their trial the appellants denied involvement. The trial judge rejected a defence submission that the photographs should not be put before the jury. The appellants were convicted.

 

On appeal against conviction on the ground, inter alia, that the photographs should not have been admitted in evidence: —

 

Held , dismissing the appeal, that the photographs taken by the security cameras were admissible in evidence as they were relevant to the issues whether an offence had been committed and the identity of the offenders; that it was a matter for the jury to determine whether they were sure that the photographs taken during the raid on the building society were photographs of the appellants; and that, therefore, the recorder, having given the jury the necessary warning of the dangers inherent in identifying a person from a photograph, had properly left to the jury the question whether the photographs were of the appellants when they came to determine whether the appellants had taken part in the raid on the building society (post, pp. 978F, 979A-D, E-F).

 

Reg. v. Maqsud Ali [1966] 1  Q.B. 688, C.C.A. applied.

 

The following cases are referred to in the judgment:

Reg. v. Fowden [1982]  Crim.L.R. 588,  C.A.

Reg. v. Maqsud Ali [1966] 1  Q.B. 688;  [1965] 3  W.L.R. 229;  [1965] 2  All E.R. 464,  C.C.A.

Reg. v. Turnbull [1977]  Q.B. 224;  [1976] 3  W.L.R. 445;  [1976] 3  All E.R. 549,  C.A.

[1984] 1 WLR 971 at  972

 

The following additional cases were cited in argument:

Kajala v. Noble (1982) 75  Cr.App.R. 149,  D.C.

Reg. v. Grimer [1982]  Crim.L.R. 674,  C.A.

APPEALS against conviction.

On 4 June 1982 in the Central Criminal Court (Mr. Recorder Hollis Q.C.) the appellants, Patrick Dodson and Danny Fitzalbert Williams, were convicted of attempted robbery (count 1) and possessing firearms with intent (count 2). In addition Williams was convicted of assault occasioning actual bodily harm (count 3). Dodson was sentenced to five years’ imprisonment on count 1 and three years’ (consecutive) on count 2. Williams was sentenced to seven years’ on count 1, three years’ (consecutive) on count 2 and six months’ (consecutive) on count 3. They appealed against conviction on the grounds, inter alia, (1) that the recorder erred in law in admitting photographs taken by an automatic security camera at the Halifax Building Society branch office in Hackney on 9 July 1981 during an attempted robbery; (2) that such photographs were only admissible if they could be clearly identified as depicting the particular defendant on trial by a witness competent to make an identification; (3) that if such photographs were considered to be admissible without an identifying witness, clear guidelines should be given to the jury about the difficulties of identification along the lines of the directions in Reg. v. Turnbull [1977]  Q.B. 224. They also appealed against sentence.

 

The facts are stated in the judgment.

 

Michael Mansfield  and S. E. McGrath  (assigned by the Registrar of Criminal Appeals) for the appellant Dodson.

Robert Flach  (assigned by the Registrar of Criminal Appeals) for the appellant Williams.

F. A. A. Maude for the Crown.

 

Cur. adv. vult.

 

12 April. WATKINS L.J. read the following judgment of the court. At about 4 p.m. on 9 July 1981 three black men, said to be the appellants Dodson and Williams and a man called Downes, who has not been apprehended, entered the office of the Halifax Building Society in Kingsland High Street, North London. They approached the counter upon which was mounted a glass bandit-screen. Two cashiers, Annie Malcolm and Robin Evans, were behind it. So was the branch manager, Mr. Shrimplin. Williams, carrying a pistol, banged on the screen with it. Downes, carrying a sawn-off shotgun, fired it at the screen. Shattered fragments of the screen slightly injured the manager, who had operated the alarm button upon first seeing the would-be robbers, and Annie Malcolm. The operation of the alarm had two immediate effects. First, it activated two security cameras which simultaneously began to take photographs at half-second intervals and, secondly, it caused Dodson, Williams and Downes to depart in haste.

 

Police were informed. The negatives were taken from the films, developed and printed into photographs from which some enlargements were made by a Mr. Steppe who had fitted the cameras and a Mr. Creer who is a photographer. The photographs and enlargements provide a graphic account of the raid being made by these men, who are plainly shown in various positions, including in respect of every one of them the

[1984] 1 WLR 971 at  973

position of facing directly, or almost so, one or other of the cameras. They therefore also provided the police with an invaluable aid with which to investigate what was obviously a case of attempted robbery by armed men. There was scarcely any need to ask the manager and the cashiers for their recollection (they provided them in any case) of what these men looked like, what they were carrying and what they were wearing, for the photographs revealed clearly these important facts.

 

Dodson, who is 27 years of age and who comes originally from Guyana, was arrested on 21 July 1981. He was interviewed, after being cautioned, by police officers upon two separate occasions. According to them, notes were taken as the interviews proceeded. Those notes were undoubtedly initialled by Dodson. At the very outset Dodson said: “Show me your evidence.” He was then shown one of the enlarged photographs and told that others had been taken at the time of the raid. He accepted that the photograph really was of himself and said that shortly before the raid he had been approached in the street by three men who asked if he wanted to make some money. He was there merely to make up the numbers. He had not been previously aware of the raid or of its nature. The first he knew that guns were to be used was when he was within the building society office itself. In the second of the two interviews he confirmed his admissions, described how all of them had got away from the scene and maintained that he did not know either of his companions before the raid took place.

 

Williams, who is 25 years of age and who comes originally from Jamaica, was arrested on 15 October 1981. Some officers in a car were near Kensington High Street at the time. As the car was moving along they saw Williams in company with Downes. They knew that warrants were out for the arrest of both of them. They got out of the car and approached them. Williams upon being faced with the officers told them to “Fuck off,” and ran away. He was chased by the officers. They got hold of him. A violent struggle took place. Another officer who was in charge of a police dog released the animal which made for Williams and bit him once or twice. The dog was attacked by Williams, but eventually he was overpowered and taken into custody.

 

He was interviewed. Notes were taken of that. Williams refused to sign them. He was shown one of the enlargements of the photographs and said: “I heard the photos were good but not that good.” He then went on to say that the raid had been pre-planned and that it was Dodson who had rented the firearms from “a guy in a cafe.” He professed to be shocked when the gun went off. He was unaware, he said, that it was loaded. He himself had been cut on the chest by flying splinters from the screen. So it was that he went to the home of his brother Carl where he bathed his cuts with Dettol. He telephoned Dodson from there and had a few drinks. Subsequently he left for Jamaica where he remained for six weeks before returning to this country. Upon his return Williams was arrested at the airport and charged with being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a class B controlled drug, namely herbal cannabis.

 

On 4 June 1982 Dodson and Williams stood their trial at the Central Criminal Court before Mr. Recorder Hollis and a jury. That trial lasted 12 days. At the conclusion of it Dodson was found guilty of attempted robbery and of possessing a firearm with intent. For these offences he was sentenced to five years’ and three years’ imprisonment respectively to run consecutively. Williams was convicted of attempted robbery, possessing a

[1984] 1 WLR 971 at  974

firearm with intent and an assault occasioning actual bodily harm to one of the police officers already mentioned. He was sentenced to seven years’, three years’ and six months’ imprisonment respectively to run consecutively, that is to say to 10½ years’ imprisonment in all. On 7 June 1982 at the Central Criminal Court the Common Serjeant sentenced Williams for the offence of importing cannabis, to which he pleaded guilty, to a term of two years’ imprisonment to run consecutively to the sentence passed upon him three days previously.

 

The single judge gave both Dodson and Williams leave to appeal against sentence. He refused their applications for leave to appeal against conviction. That application was renewed to the full court, which gave leave to both applicants to appeal against conviction. Eveleigh L.J. in giving the short judgment said:

 

“As there is no authority upon the point that they have raised in relation to conviction, we shall give leave to appeal. That point is whether or not the jury may be invited to compare the accused as they see them in the dock with photographs taken at the time when the offence was committed; whether they should be allowed to do that at all or in the absence of any other evidence given by a person who is familiar with the accused. There is also another point, namely, whether it is permissible to invite the jury to compare the photographs taken at the time with a photograph subsequently taken of one of the accused. We think it right to grant leave because there is no authority upon that matter.”

 

 

It may be thought, having regard to what appeared to be the clear confessions made by both Williams and Dodson to the police, somewhat surprising that they contested the charges at the Central Criminal Court in the trial already mentioned. However, the jury at the end of it all deliberated for two days — ten hours altogether — before convicting them by majority verdicts.

 

Before the Crown opened the case to the jury counsel for Williams submitted that the jury should not be allowed to see the photographs taken at the branch office of the building society. He said it would be dangerous for them to have the opportunity of doing so — highly prejudicial to the appellants and grossly unfair. In any event, he said, the photographs for evidential purposes were useless. The recorder in the course of argument at one point made this observation:

 

“If I accede to this application, is the situation to be that where an attempt is made to rob the premises of a building society and cameras are in fact taking photographs of people who are, in fact, engaged upon an attempted robbery, that the jury are not to be allowed the benefit of seeing what the camera has produced?”

 

 

Mr. Fernandes (then appearing for Williams) said: “I must accept that.” The recorder: “It strikes me as a startling proposition in these technical days.” At the conclusion of the argument the recorder gave this ruling:

 

“… I have seen the photographs and I am bound to say that I reject the submission in so far as it rests upon the quality of them. I take Mr. Fernandes’ point that documentary evidence always tends to impress itself more positively upon the mind of a jury, essentially upon the mind of a jury who can take the document with them, but I do not think that is a reason for excluding them. I shall attempt to counteract the possible danger that Mr. Fernandes helpfully draws

[1984] 1 WLR 971 at  975

my attention to as soon as the jury has seen the documents, and I shall do my best to prevent them from drawing immediate comparisons between either defendant in the dock and the photographs.”

 

 

The Crown was given leave to put in the photographs. This was done. Evidence of the production of them was given by the competent witnesses Steppe and Creer. The jury were provided with copies and were thus enabled during the 12 days of the trial to compare the men in the dock with the men in the photographs and enlargements, who the Crown alleged to be Dodson and Williams (and, the third man, Downes). The jury were also provided with photographs of Williams taken by the police on 6 June 1981 and the day after his arrest on 18 October, and with a photograph of Downes to compare with the appellants as they appeared in the dock and as they appeared, so it was alleged, in the photographs and enlargements.

 

[His Lordship referred to the defences of the appellants and continued:] During the course of the trial and after retirement the jury by note asked a number of questions. Most of them were connected with matters which are wholly immaterial to the issues in these appeals against conviction. One of the matters which has been referred to by counsel appearing for the appellants in this court — neither of them appeared at the trial — relates to a note upon which a request was made that a magnifying glass be taken into the jury room. We have had the opportunity now of looking at that note. It is perfectly clear from the terms of it that the jury as a whole did not ask for a magnifying glass. To the contrary, it was but one juror who required, for a reason which of course we cannot tell, the assistance of that implement.

 

The jury were out altogether for something in the region of ten hours. That is significant, counsel argues — they must have been troubled with something, which is very odd indeed seeing that the claim by the Crown is that the photographs taken at the time of the raid clearly revealed the appellants to be involved in it. We fail to appreciate the force of that argument. No one can possibly tell what was exercising the minds of the jury. They had a number of charges to consider. They had in addition to resolve issues, which seemed to give them some difficulty having regard to the contents of some of the notes which we have seen, involved in the charges relating to the assaults upon the police officers. This much is evident, not only from the contents of the notes, but from the fact that Williams was acquitted of two of those charges at the end of the day.

 

The grounds of appeal come from two sources — from the appellants themselves and from counsel. Both appellants have composed voluminous grounds, which, save for those which have been perfected and argued by counsel on their behalf, are, we are satisfied, without substance. Those which form an attack on the summing up are especially ineffective, seeing that in our view that was an admirable composition of accurate legal directions with the possible exception of references to the photographs (with which we shall deal later) and a fair summary of the evidence.

 

The perfected grounds on behalf of Dodson are

 

“(1) That the recorder erred in law in admitting photographs taken by an automatic security camera at the Halifax Building Society branch office in Hackney on 9 July 1981 during an attempted robbery. (2) That such photographs are only admissible if they can be clearly identified as depicting the particular defendant on trial by a witness competent to make an identification. (3) That if such photographs

[1984] 1 WLR 971 at  976

are considered to be admissible without an identifying witness clear guidelines should be given to the jury about the difficulties of identification along the lines of the directions in Reg. v. Turnbull [1977]  Q.B. 224.”

 

 

In the case of Williams like grounds are relied upon and it is also contended that the recorder wrongly permitted the prosecution to adduce in evidence photographs taken of Williams by the police on 18 October 1981 (the day after his arrest) and on 6 June 1981 — that is to say some time before the raid. He was wrong, so it is further contended, in his summing up to invite the jury to compare photographs of the attempted robbery with these photographs and further with the appearance of the appellant as they saw him in the witness-box. Lastly, it is said that he failed in his summing up adequately or at all to warn the jury against the dangers of identification by photograph along similar guidelines to those laid down in Reg. v. Turnbull [1977]  Q.B. 224.

 

In the summing up the recorder made references to the use of the photographs and enlargements to this effect:

 

“Now, considering those two issues, the same issue for each defendant, you are considering the question involving the identification of the human face. Now that is not a precise consideration. It is not like comparing, for instance, the index numbers of two cars or two sets of fingerprints or something of that sort. And there are dangers where witnesses have an opportunity of seeing, for instance, someone raiding a bank and they see a suspect some time later and they may genuinely think that that suspect is the same person. You are not here asked to assess the reliability of such a witness. You are making the identification in each case yourselves. You will bear in mind the dangers and difficulties of identification by one human being, in your case twelve human beings, and the features of another. Bear in mind that photographs may give different impressions of the same person. There are photographs that you may know really do not resemble the person that you know them to be of at all. You probably have all taken photographs or all seen photographs of some member of your family and you say: ‘That does not look like him at all. What a rotten photograph.’ There are photographs that catch a characteristic, an attitude, a gesture, an expression absolutely right and you say: ‘There is old so and so. I have often seen him looking like that.’ It may not be a very good portrait of the man or the woman, but it catches something about the look of his or her face.

 

 

 

“Well, members of the jury, I cautioned you more than once at the outset of this case against jumping to conclusions, and you clearly have resisted that temptation, if temptation it ever was. You have the photographs of the two people who were undoubtedly in the bank — you may be satisfied of that — and your concern is with the man who had the handgun, said to be Williams, and the man who had no gun at all, said to be Dodson. You also have some descriptions of those two characters given by the people inside the bank, and you should put those together with the photographs, because they relate to the two people in the bank, whoever they were, and I will remind you shortly of such evidence as there is about that.”

 

 

Neither counsel took any point upon the technical aspects of the production of the photographs or enlargements. The submissions made to

[1984] 1 WLR 971 at  977

this court by Mr. Mansfield on behalf of Dodson were that whilst he could not argue that these photographs were according to the strict rules of evidence inadmissible, the recorder in the exercise of his discretion could not have done otherwise than to have them excluded seeing that the only purpose of admitting them was to allow the jury to perform the task, by observation of the appellants in the dock and by looking at all the photographs and enlargements provided for them, of identification. This amounted, he said, to the equivalent or something worse of dock identification which was nowadays not allowed to be done. It took the place of an identification parade which should have been, but which was not, held. Anyone who claimed to identify a defendant as having been present at the scene of a crime should be available — jurors obviously were not — for cross-examination. The jurors were asked to put themselves in the position of eye-witnesses without any of the restraints which govern a witness when giving evidence able to be imposed upon them. No one could possibly tell, assuming they convicted because they relied upon the photographs and enlargements, what in particular led them to that conclusion. It may be, he conceded, that such a task would be permissible if a defendant whom it is sought to identify from contemporaneous photographs had features about him — a hallmark so to speak — which was unusual, one arm, one leg, unusual size, big or small for instance, but these appellants are ordinary black men as are the men in the photographs and enlargements, who are shown to wear commonplace clothing — tracksuits and so forth.

 

Mr. Mansfield further conceded that inclusion of the photographs and enlargements could not be properly resisted if the purpose of doing so was to enable a witness, other than a police officer, who knew an appellant well to testify to the effect that having regard to his familiarity with the appellant he recognised him as one of the men in the photographs. The jury could then be left with the proper task of assessing the weight of that witness’s evidence. In this connection he referred to observations made in Reg. v. Maqsud Ali [1966] 1  Q.B. 688, referred to in Reg. v. Fowden [1982]  Crim.L.R. 588, decided in this court on 4 February 1982. Marshall J. giving the judgment of this court in Reg. v. Maqsud Ali [1966] 1  Q.B. 688, 701 said:

 

“For many years now photographs have been admissible in evidence on proof that they are relevant to the issues involved in the case and that the prints are taken from negatives that are untouched. The prints as seen represent situations that have been reproduced by means of mechanical and chemical devices. Evidence of things seen through telescopes or binoculars which otherwise could not be picked up by the naked eye have been admitted, and now there are devices for picking up, transmitting, and recording, conversations. We can see no difference in principle between a tape recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible …”

 

 

Mr. Mansfield submits that he is entitled to draw some comfort from those observations in that they indicate that what has to be done in order

[1984] 1 WLR 971 at  978

to render such evidence as is here in issue admissible, is that the Crown must produce evidence in the form of someone such as the kind of witness we have already mentioned.

 

Mr. Mansfield’s proposition seems to us to pose more practical difficulties than it may be regarded as attempting to solve. Once the photographs are before the jury, it is inevitable that they will look at the men in the dock and endeavour to tell whether they bear a resemblance to the men shown in the photographs. Mr. Mansfield would further have such a witness as he submits should have been called elevated to the status of an expert as in handwriting and fingerprints.

 

Mr. Flach adopted these arguments and pointed to the difficulties of identifying black men in any circumstances. It is he said basic to our system that he who claims to identify should have his claim tested by cross-examination. It was wrong to introduce the photograph of Downes. It served no proper purpose and may have been confusing. He argued also that fairness if nothing else demanded that a photograph should only be used to identify if the photographer was called to say that the man in the dock was the man he photographed. We regard that proposition as totally unmeritorious. We shall say no more of it.

 

Mr. Maude for the Crown reminded us that the jury had had the opportunity during many days of looking at the appellants. The purpose of putting what he called the other photographs in was to show how Williams, for example, looked before and upon arrest. An identification parade here would have no value. It is he submitted in the best interests of the administration of justice that photographs taken at the moment of an attempted robbery be admitted to evidence. They are an invaluable aid in many respects to identification. Argument about clothing worn and weapons carried is almost certainly thereby eliminated and more often than not the identity of the offender clearly revealed. He too relies upon the quotation to which we have already referred from the judgment in Reg. v. Maqsud Ali [1966] 1  Q.B. 688, 701. He contends that that demonstrates beyond a peradventure that photographs of this nature are not only admissible but may be used for the purpose for which they were used in the trial of these two appellants.

 

We entertain no doubt that photographs taken by the process installed and operated in the branch office of the building society are admissible in evidence. They are relevant to the issues as to (a) whether an offence was committed and (b) who committed it. What is relevant is, subject to any rule of exclusion — we know of none which is applicable to this situation, prima facie admissible. As for the exercise of any discretion which a judge may have to exclude such evidence in the form of photographs, we have no hesitation in stating that we cannot see any reason why he should do so.

 

Moreover, we reject the attempt here made to persuade this court to prevent a jury from looking at photographs taken by means of this technique, looking at a defendant in the dock and then to conclude if it be safe to do so that the man in the dock is the man shown in the photographs. Photographs of the same man taken at other times we regard as permissible aids in this process, bearing in mind that some offenders after the commission of crime by one device or another change their appearances.

 

In performing this task juries cannot possibly in our judgment be regarded as acting as experts, as for instance they might be if they were invited to be judges of handwriting and fingerprints, in which specialities

[1984] 1 WLR 971 at  979

special training and expertise are demanded. They are called upon to do no more than the average person in domestic, social and other situations does from time to time, namely to say whether he is sure that a person shown in a photograph is the person he is then looking at or whom he has seen recently.

 

It is, however, imperative that a jury is warned by a judge in summing up of the perils of deciding whether by this means alone or with some form of supporting evidence a defendant has committed the crime alleged. According to the quality of photographs, change of appearance in a defendant and other considerations which may arise in a trial, the jury’s task may be rendered difficult or simple in bringing about a decision either in favour of or against a defendant. So long as the jury having been brought face to face with these perils are firmly directed that to convict they must be sure that the man in the dock is the man in the photograph, we envisage no injustice arising from this manner of evaluating evidence with the aid of what the jurors’ eyes tell them is a fact which they are sure exists.

 

What are the perils which the jury should be told to beware of? The recorder we think, in the admirable passage of his summing up we have quoted, summarised them more than adequately for the purpose of the present case. We do not think the provision by us of a formula or series of guidelines upon which a direction by a judge upon this matter should always be based would be helpful. Evidence of this kind is relatively novel. What is of the utmost importance with regard to it, it seems to us, is that the quality of the photographs, the extent of the exposure of the facial features of the person photographed, evidence, or the absence of it, of a change in a defendant’s appearance and the opportunity a jury has to look at a defendant in the dock and over what period of time are factors, among other matters of relevance in this context in a particular case, which the jury must receive guidance upon from the judge when he directs them as to how they should approach the task of resolving this crucial issue.

 

In the present case we do not doubt that the jury was made well aware of the need to exercise particular caution in this respect.

 

For these reasons the appeals against conviction are dismissed.

 

[His Lordship then dealt with the appeals against sentence. Dodson’s appeal was dismissed; Williams’ appeal was allowed to the extent of reducing the sentence on count 1 from seven years’ imprisonment to five.]

 

Appeals against conviction dismissed.

Certificate that point of law of general public importance involved in decision refused.

Solicitor: Solicitor, Metropolitan Police.

 

[Reported by EIRA CARYL-THOMAS, Barrister-at-Law]

 

 

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