Coles [2018] EWCA Crim 407

**R v Gavin Mark Coles [2018] EWCA Crim 407** concerned an application for leave to appeal a conviction for burglary following trial in the Crown Court at Lincoln before His Honour Judge Pini QC and a jury. Mr Coles was convicted on 28 November 2016 and sentenced on the same day to five years’ imprisonment. The Registrar of Criminal Appeals referred the application to the full court to ensure an earlier hearing after administrative delay at the Crown Court.

On 29 April 2016 at around 1.20 pm, Ms Thompson left her home at 91 Crowson Way, Deeping St James, Lincolnshire. While she was out, a burglar forced open the rear ground floor kitchen window and stole a considerable amount of property. CCTV footage from two cameras outside a shop on the opposite side of the road captured a man walking past the shop about a minute after Ms Thompson left. The first video (exhibit RJ/01) provided a side and rear view of the man’s face for about five seconds, showing him wearing jogging bottoms and a distinctive grey jacket. The footage showed the man crossing the road to number 91, moving to the front door, then around the right-hand side of the house, emerging and then moving down the left-hand side and disappearing in that direction. A second camera pointing in the opposite direction captured a front view of the same man walking briefly across the front of the shop.

On 4 May 2016, Police Community Support Officer Laughton viewed exhibit RJ/01, which at that time was the only footage obtained, and identified the applicant as the man in the footage. On 27 October 2016 she viewed the second video and again identified the applicant. In her evidence at trial PCSO Laughton stated she had watched the first video twice before making the identification and the second video only once. The applicant lived about half a mile from the burgled property. On 5 May 2016, the day after PCSO Laughton identified him from the first video and about a week after the burglary, he was arrested at home wearing grey jogging bottoms with a distinctive logo on one leg that was not visible on the jogging bottoms in the footage. A grey hooded jacket very similar to that seen in the video was seized from his bedroom.

There was no direct forensic evidence linking the applicant to the burgled property. A footprint from a training shoe was left on the kitchen counter, most likely from a shoe size between nine and eleven. The trainers the applicant was wearing when arrested were clearly not those seen in the video and could not be linked to the footprint, but he had a shoe size of ten, within the relevant range. The applicant had previous convictions arising between 2003 and 2011 for eight dwelling burglaries and further convictions from 2012 and 2014 for attempted burglaries of dwellings. When interviewed he denied the offence but conceded it could be him in the CCTV footage, which must have been only RJ/01 as his arrest preceded the obtaining of the second video.

PCSO Laughton had been based at the local police station for six years and detailed three previous occasions on which she had seen the applicant. In February 2016 she saw him mowing the lawn outside his parents’ home in Deeping St James, driving past in a police car about twenty feet away. On 11 April 2016 she pointed him out to a police sergeant. They stopped and spoke with the applicant for about ten minutes and he acknowledged his identity. She was about two feet away from him. The Crown submitted it was significant she was able to point him out before the conversation took place. On 18 April 2016 she saw him riding a bicycle in the street wearing the same coat as could be seen in the CCTV footage. She was in no doubt about the identification. She had viewed the footage alone and had not been provided with any names of possible suspects before viewing RJ/01.

The ground advanced was that the prosecution case was too weak to justify admission of the applicant’s considerable bad character. This turned on whether the judge’s assessment was unreasonable. The Crown case rested on the identification by the officer, the similarity of clothing (the grey tracksuit bottoms, although the logo could not be identified in the footage, and the jacket with specific stitching giving a close identification), and the proximity between the burglary and the applicant’s residence. The Crown also relied on the sequence of the PCSO’s identification process and linked that to the fact she had identified the applicant to a colleague shortly before. In oral submissions Ms Leonard, appearing for the applicant, emphasised there was no prosecution expert evidence linking the colour of the clothing seen in the videos, in particular the jacket, with the jacket seized from the applicant’s home. The jacket itself had been produced to the jury and they could see the videos.

The defence submitted at trial, and emphasised on appeal, that the identification from the video was not certain. They argued the description of hairline given by the PCSO as an important feature of her identification from RJ/01 was perhaps less than totally convincing, that the short viewing of the second video in particular, which she only looked at once, might indicate the witness had seen what she wished to see, that her preconception had overmastered her attention to the identification, and that honest identifications can be wrong.

Lord Justice Irwin, giving the judgment of the court, held that considering all those matters there was a perfectly proper basis for the judge to admit the convictions on the evidence before him. A reasonable jury properly directed could have concluded without more that the person on the CCTV was the applicant. Because of the timing, positioning, link to the clothing and proximity to the applicant’s address, there was a proper basis for admission of the convictions. The court rejected the submission that expert evidence was required to link the appearance and colour of the jacket with that shown in the video. It was perfectly proper to advance a case of that kind asking the jury to use their own observation and common sense. The defence expert, moreover, in cross-examination said there were similarities between the appearance of the clothing on the video and that produced and with the applicant himself, broadly categorising the similarities as permanent features and the dissimilarities as transient features. Although the defence expert evidence had not been given when the judge made his ruling on the bad character application, nothing in that evidence gave rise to any concern that the conviction was unsafe.

There was no complaint, and properly so, about the way the matter was summed up. The jury was properly warned to take real care about identification evidence, although this was no fleeting glance case, and was properly warned as to the care they should take concerning the previous convictions and the use they should and should not make of them. The court observed that previous convictions can only prove propensity, in this instance propensity to burgle. It is the evidence of propensity which in the circumstances of a case like this can be linked to the identification evidence. There is no separate route by which bad character evidence can be relevant to demonstrate support for an identification. Although the matter was put on two bases when the application was made, the court considered only one basis was intellectually or logically defensible. However, that did not alter the fact that the convictions were properly admitted and the jury properly directed as to how to use them. In short, the application for leave to appeal was dismissed, the court finding the identification evidence sufficiently strong to justify admission of the applicant’s previous convictions for burglary.