Jatinder Singh Mann [2019] EWCA Crim 1200

R v Jatinder Singh Mann [2019] EWCA Crim 1200 concerned an appeal against conviction for dangerous driving before the Court of Appeal (Males LJ, Simler and Murray JJ). The appeal was dismissed.

Mr Mann was convicted on 27 November 2017 at the Crown Court at Isleworth before His Honour Judge Moore and a jury and sentenced on 1 December 2017 to twelve months’ imprisonment with disqualification from driving for three years until passing an extended retest. He appealed by leave of the full court on the sole ground that the judge failed to direct the jury on the proper approach if they rejected his alibi defence, rendering his conviction unsafe.

At about 12.30 am on 29 March 2017 police officers in Hounslow saw a silver Alfa Romeo motor car being driven dangerously on two occasions, mounting the kerb and then speeding off at up to 100 mph in a 30 mph zone. Neither officer could identify the driver or give the registration number, though a description of the passenger was given. At about 1.50 am two different officers, Police Sergeant Creek and Police Sergeant Sparks, saw an Alfa Romeo in Hanworth Road. It stopped and the officers approached seeking to detain the occupants. PS Creek gave evidence that he had a clear and unobstructed view through the passenger window, which was wound down about two to three inches, and recognised the driver as Mr Mann, whom he had seen approximately ten times over seven or eight years and most recently two and a half weeks previously on 10 March 2017 when he stopped him in the same car for a defective tail light. The driver raised his hands but then suddenly drove off through red lights at about 80 mph, forcing a lorry driver to brake sharply. The officers abandoned the pursuit as too dangerous. Mr Mann was arrested the following morning. In interview he said he had borrowed the car from a friend called Kay, used it until about three or four o’clock in the afternoon of 28 March and left it parked, then went to a party in Harrow in the evening. He declined to provide the address, names of those present or other details to support his alibi. He denied being the driver and said when charged that he was going to look for CCTV.

At trial the critical issue was whether the jury could be sure Mr Mann was the driver. There was no dispute that the driving once the vehicle left Hanworth Road was dangerous. PS Creek’s evidence was central. He said he had seen Mr Mann ten times over seven to eight years, most recently on 10 March 2017 when the same Alfa Romeo was stopped on the driveway of Mr Mann’s address for a defective tail light. Safety lights came on, Mr Mann in the driver’s seat lowered the window a short distance, refused to get out, and the window was smashed and he was forcibly extracted; no charges resulted. PS Creek maintained he did not associate Mr Mann with the vehicle because of 10 March and was not influenced by radio communication suggesting Mr Mann was driving an Alfa Romeo that evening. He said on 29 March he saw the driver looking directly at him from one to one and a half metres for approximately 40 seconds to one minute with an excellent view and the only reason he did not describe clothing in his statement within four hours was because he knew and recognised Mr Mann. Mr Mann gave evidence that he was driving on 10 March, stopped on his driveway and was alarmed by the officers’ approach so did not get out, and agreed the window was smashed and he was removed. He denied driving on 29 March, saying he left the car at the back of the house where he was living, a cousin visiting from Canada was in town, he was collected to go to a party at a friend’s house in Harrow (which he had not been to before), and returned home in a taxi at 6 am without checking where the car was. He did not know who had been driving it and said the owner also had keys. He accepted he was angry in interview and had met the officers previously. No alibi witnesses were called. The defence was that the identification was mistaken, made at night through a small gap into a darkened car for a short time, and PS Creek was primed to misidentify Mr Mann by radio communication.

The judge gave a Turnbull warning emphasising the special need for caution and the dangers of even apparently confident recognition evidence, noting the factors of night-time identification, limited viewing through two or three inches of window, but also PS Creek’s previous sighting on 10 March and the short time involved. On the appellant’s alibi the judge directed that Mr Mann did not have to prove his case, that it rested on the prosecution making the jury sure, that witnesses often do not want to come to court, and that the prosecution had to prove the case not the defendant to bring alibi evidence. He summarised the defence case including Mr Mann’s explanation that he had been at Harrow and witnesses would not be heard because they did not want to get involved, and told the jury they had to be sure of the identification through the window or acquit. After the summing-up, counsel for Mr Mann sought a “lies direction” that if the jury did not accept his account of being in Harrow they must not assume this supported the identification. The judge declined to give such a direction.

On appeal Mr Greenhall submitted that fairness required a careful direction on the consequences of rejecting the alibi, that without it there was a clear danger the jury might impermissibly reason that a false alibi necessarily supported the Crown’s case, that such a direction was necessary because the Crown directly attacked the alibi independently of PS Creek’s identification as a major plank of its case, and that this was not a case where rejecting the explanation left the jury with no choice but to convict as a matter of logic. He further contended the conviction was unsafe because the Crown’s identification case was weak given the circumstances (night, fast-moving situation, small window gap, darkened car, across a passenger, short observation, no clothing details, infrequent prior acquaintance, and priming by radio circulation of the name).

The Court of Appeal considered the authorities including R v Goodway [1998] Cr App R 11, R v Burge and Pegg [1996] 1 Cr App R 163 and R v Harron [1996] Cr App R 581. The court held that a Lucas direction is not required in every case where a defendant lies but only where there is a danger the jury might regard lies as probative of guilt, which would usually be required in alibi cases. However, following Harron, no direction is necessary even in an alibi case where there is no distinction between the issue of guilt and the issue of lies. The court held that lies, as a separately identifiable feature, played no part in the way the Crown put its case nor constituted a matter the jury might have taken into account separately from determining whether they could be sure PS Creek’s identification was accurate and reliable. Either the identification was reliable so Mr Mann could not be telling the truth about Harrow, or PS Creek’s evidence could not be relied on making the alibi irrelevant. There was no basis for rejecting the alibi except as a consequence of accepting the identification. Since the purpose of a Lucas direction is to guard against the forbidden reasoning that lies equal guilt and there was no such risk here, no direction was necessary. The court also held that even had a direction been required the conviction would not be unsafe, given this was recognition evidence not simple identification, PS Creek saw the driver at close proximity for 40 seconds to one minute with an unobstructed view, recognised him from 10 March in the same car, gave strong evidence maintained throughout cross-examination, and any direction that alibis are sometimes falsely advanced to bolster an honest defence could not have affected the jury’s decision.

In short, the Court of Appeal held that no Lucas direction was required where rejection of an alibi defence was necessarily consequent upon acceptance of identification evidence and there was no separate risk of impermissible reasoning, and dismissed the appeal.

R v Goodway [1998] Cr App R 11
R v Burge and Pegg [1996] 1 Cr App R 163
R v Harron [1996] Cr App R 581