Arthurs V Attorney General of Northern Ireland

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Arthurs v Attorney General of Northern Ireland, (1971) 55 Cr. App. R. 161 (1970)
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*161
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Arthurs v Attorney-General for Northern Ireland
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Court
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House of Lords (Northern Ireland)
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Judgment Date
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21 October 1970
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(1971) 55 Cr. App. R. 161
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[In the House of Lords]
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Lord Reid , Lord Morris of Borth-Y-Gest , Lord Hodson and Lord Diplock
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1970 Oct. 21
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Summing-up\u8212\'3fCase for Prosecution Based Wholly or Substantially on Visual
Identification of Defendant\u8212\'3fDuty of Judge\u8212\'3fWhether General Warning
on Danger of Acting on Such Evidence Required.
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Where the case against the defendant depends wholly or substantially on the visual
identification of the defendant by one or more than one witness, if the summing-up
has dealt fully and fairly with the evidence relating to identification and is
impeccable in every other respect, it is not to be regarded as defective merely
because it does not contain a general warning to the jury of the danger of acting
on evidence of visual identification. It would be undesirable to lay down as a rule
of law that a warning in some specific form or partly defined terms must be given.
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Appeal by the prisoner from an order of the Court of Criminal Appeal for Northern
Ireland dismissing his appeal against conviction.
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The appellant, John Edward Arthurs, was convicted on October 18, 1969, after trial
at the County of Tyrone Assizes before McGonigal J. and a jury, of malicious damage
contrary to
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section 51 of the Malicious Damage Act 1861
}}}
and was sentenced to three years\rquote imprisonment. An appeal by the appellant
against conviction was dismissed by the Court of Criminal Appeal for Northern
Ireland\u8212\'3fThe Lord Chief Justice (Lord MacDermott), Lord Justice Curran and
Lord Justice McVeigh\u8212\'3fon February 18, 1970.
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*162
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The following full statement of facts is taken from the judgment of Lord MacDermott
C.J. in giving the judgment of the Court of Criminal Appeal of Northern Ireland: \
u8220\'3fThe principal Crown witness was Constable Alexander Spiers of the Royal
Ulster Constabulary. According to his evidence, he arrived with other police in
Georges Street shortly after midnight. A bus was across the William Street mouth of
this street and was on fire. The constable and other police got past it and made
their way eventually up Savings Bank Street. The Courier Building was burning and
flames were coming from it. Petrol bombs, stones and bottles were being thrown from
the waste ground at the side of the Courier Building. The constable got to the
barricade and said he was able to see through it the people who were throwing these
missiles. He said he saw the accused throw two petrol bombs which landed on the
roof of the annex and burst into flames. He said he knew the accused previously\
u8212\'3fthe accused in cross-examination said the constable knew him very well\
u8212\'3fand he swore that he had no doubt about the identification. Later, about
1.30 a.m., the constable and other police broke through this barricade and
Constable Spiers stated that he saw the accused standing at the back of the Courier
Building and between it and the Fairmount Park houses. About ten yards from where
the accused was standing there was, the constable swore, a milk crate with nine
petrol bombs in it and, in the same vicinity, a five-gallon drum half full of
petrol. The constable did not arrest the accused at this time. But he said that he
saw two special constables take him into custody, and that he, Constable Spiers,
then went searching round Fairmount Park. Later, in Savings Bank Street, he took
over custody of the accused from some special constables meaning to take him along
Georges Street.
}
An opposition crowd had, however, collected at the junction of William Street and
Georges Street and this crowd\u8212\'3fa crowd of civilians, according to the
constable\u8212\'3ftook the accused out of his custody. It is common ground that
the accused at about this time received a severe beating, but Constable Spiers said
that with assistance he got him from the crowd and to the police station by car.
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*163
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The accused is a young man of nineteen. He had been asked, he said, to act as a
vigilante to warn Fairmount Park of any impending Paisleyite attack. He came in to
do duty as such about 8 p.m. on the evening in question. He met a friend and went
with him to the barricade at the Courier Building. They stayed there for two hours
until relieved. They then went on up the town and visited several other barricades.
After that they went back to the Courier Building barricade. It was then about
midnight. The bus in Georges Street went on fire and smoke was pouring out of the
Courier Building. There were others there on the waste ground behind the barricade.
The accused said he and his friend stayed about fifteen minutes. Others were
throwing petrol bombs and stones over their heads from the waste ground behind
them. He swore that neither he nor his companion threw any bomb or missile. When
the throwing started they went down into Fairmount Park, well away from the Courier
Building. There his friend left and he, the accused, was arrested by special
constables and taken down Savings Bank Street. There was no handing over to
Constable Spiers, and no civilian crowd at the William Street and Georges Street
intersection. About there he got, he said, a bad beating from the police, but was
eventually put into a car and taken to the police station. In the car was Constable
Spiers and that, according to the accused\rquote s testimony, was their first
meeting that night.\u8221\'3f
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The Court gave leave to appeal to the House of Lords, after certifying that the
decision involved a point of law of general public importance.
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The point of law on which leave to appeal had been granted was formulated in the
questions: \u8220\'3f1. When, in the course of a trial on indictment, a conviction
appeared to depend wholly or substantially on the visual identification of the
accused by one or more than one witness, was it in law the duty of the presiding
judge to give a general warning to the jury of the dangers of acting on such
evidence? 2. In the present case was it the judge\rquote s duty in law so to warn
the jury in relation to the identification evidence of Constable Alexander Spiers,
of the Royal Ulster Constabulary?\u8221\'3f
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*164
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Allan Comerton
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for the appellant.
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John McKee
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for the Attorney-General.
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The House took time for consideration.
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October 21. The following opinions were read.
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Lord Reid:
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My Lords, I have read the speech which has been prepared by my noble and learned
friend, Lord Morris of Borth-y-Gest, and for the reasons given by him I would
dismiss this appeal.
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Lord Morris of Borth-y-Gest:
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My Lords, after a trial which took place on October 17 and 18, 1969, at the Omagh
Assizes before McGonigal J. and a jury of the County of Tyrone the appellant was
convicted of the offence of malicious damage, contrary to
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section 51 of the Malicious Damage Act 1861
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. The particulars of the charge were that on August 14, 1969, the appellant
maliciously damaged an office building and its contents (the property of The Tyrone
Printing Company Ltd.) and thereby did injury to the amount of about \
u163\'3f1,447. The case for the prosecution was that the appellant threw two petrol
bombs (which had lighted wicks) on to the roof of the building.
}
The appellant denied positively that he had done so. After conviction a sentence of
three years\rquote imprisonment was imposed.
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Leave to appeal was refused by Lowry J. (on January 8, 1970) and by way of appeal
from that refusal the matter came before the Court of Criminal Appeal in Northern
Ireland (Lord MacDermott C.J., Curran and McVeigh L.JJ.). The Court decided to hear
the case fully (as though it was an appeal with leave) and proceeded to do so.
Among the various points that were raised in the grounds of appeal (dated November
5, 1969) was that the learned judge had \u8220\'3ffailed to comment or direct the
jury generally on the dangers of mistaken identification.\u8221\'3f The Court of
Criminal Appeal rejected the various contentions that were raised and dismissed the
appeal. Their reasons were recorded in the judgment of Lord MacDermott dated
February
}
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*165
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18, 1970. An application was made pursuant to section 36 (2) of the Criminal
Appeal (Northern Ireland) Act 1970 , and the Court gave leave to appeal to your
Lordship\rquote s House after certifying that the decision involved a point of law
of general public importance. The point of law was formulated in the following
questions: \u8220\'3f1. When, in the course of a trial on indictment, a conviction
appears to depend wholly or substantially on the visual identification of the
accused by one or more than one witness, is it in law the duty of the presiding
judge to give a general warning to the jury of the dangers of acting on such
evidence? 2. In the present case was it the duty in law of the presiding judge to
give such a warning to the jury in relation to the identification evidence of
Constable Alexander Spiers?\u8221\'3f On the hearing before your Lordships one
other point, to which I will later refer, was raised by counsel for the appellant.
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As recorded in the full and careful judgment of the Court of Criminal Appeal the
town of Dungannon on the night of August 13\u8211\'3f14, 1969, fell into a state of
grave riot and commotion. At various points barricades were erected. A clash
between opposing factions seems to have been widely expected. The building of the
Tyrone Printing Company Ltd. (referred to as the \u8220\'3fCourier Building\
u8221\'3f) became on fire. From some waste ground at the side of the building
petrol bombs and stones and bottles were being thrown. A police constable
(Constable Spiers) said that he saw the appellant throw two petrol bombs. So the
case against the appellant rested almost entirely upon the testimony of that
witness. Could dependence be placed upon his identification of the appellant? The
conflict between the evidence of the constable and that of the appellant related
not only to the central question as to whether the appellant did or did not throw
two petrol bombs, but also as to the sequence of the events involving the appellant
and, in particular, as to the place where and the time when and the whole
circumstances concerning and connected with the arrest of the appellant.
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[After stating the facts set out above, His Lordship continued:]
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The additional point which was raised by counsel for the appellant was to the
effect that the learned judge at the trial, in inviting the jury to consider the
evidence which was given concerning the events that took place after the alleged
petrol bomb throwing by the appellant, had done so in such a way as to create what
counsel called a \u8220\'3ffalse issue.\u8221\'3f In my view, there is no substance
in this point. There was a sharp divergence between the evidence given, on the one
hand, by the police constable concerning the time and place of and the
circumstances connected with the arrest of the appellant and the evidence given, on
the other hand, by the appellant and others in regard to those matters.
}
The divergence could not be accounted for as being due to honest mistake of
observation or recollection. It was important for the jury to consider whether the
police constable was or was not an honest witness. If they thought that he was not,
then the case for the prosecution would fail. So also would it fail if, as the
learned judge most carefully and fully emphasised, the jury entertained any
reasonable doubt.
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\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
It was said that a passage in the summing-up was tantamount to an instruction to
the jury that they should accept the evidence of the police constable in regard to
his identification of the accused if they thought that his evidence concerning the
later events of the evening was correct. Reading the passage in the setting of and
within the scheme of the summing-up, I see no valid ground for criticism as to the
way in which the learned judge directed the jury in regard to the evidence.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
I pass, therefore, to consider the formulated point of law. The question postulates
the situation where the case against an accused person depends on a visual
identification of him. What is suggested, or what is involved in what is suggested,
is that a summing-up in such a case, even if impeccable by every accepted standard
and rule, ought, in the future, to be held as a matter of law to be defective
unless within its content there is contained a general warning to the jury of the
dangers of acting on visual identification evidence.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
It will be helpful to consider the suggestion in relation to and in the setting of
the summing-up in the present case, in
}
{\b1 \cf36 \f2 \i1 \fs20
*167
}
}
the judgment of Lord MacDermott C.J. several extracts from the summing-up were
conveniently and helpfully set out. Without repeating them or adding to them, some
of the features of the summing-up may be summarised. In the first place, it was
very amply and clearly explained to the jury that the onus lay on the Crown to
prove their case. The jury were emphatically told that each member must for himself
reach a conclusion and that any doubts must be resolved in favour of the accused.
Indeed, these matters were stressed not only in the early part of the summing-up,
but again as it proceeded and again as it concluded. In the second place, it can be
said that the case of and for the accused was fully and fairly put before the jury.
They were carefully reminded of the evidence of the accused and of the witnesses
who were called. In the third place, the summing-up dealt very specifically with
the points which concerned the question of identification. The jury were told that,
even if Constable Spiers was satisfied in his own mind that he had identified the
accused, he might have made a mistake. So there were very many matters to be
considered. Was the light sufficient to enable the constable to identify the
accused as a person who threw petrol bombs? If the only light was the light that
came from the fire in the building or from the fire from the wicks of the petrol
bombs, was that sufficient to enable the constable to identify the accused, even
allowing for the accepted fact that the constable knew the accused well? Was the
direction of the flames such as to make it possible for the constable, at the point
where he said he was, to identify the accused? Could the constable see properly
through the barricade? Did he make a real and true identification? Had the accused
in fact left the barricade before the constable went to it? To these various
questions the jury were invited to give their consideration.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
Should it, then, be held that the summing-up, which in my view was fair and ample,
should notwithstanding this be held to have been defective if it did not contain
a \u8220\'3fgeneral warning\u8221\'3f to the jury of the dangers, in cases where a
conviction depends on the visual identification of the accused by one or more than
one witness, of acting on such evidence?
}
(I use the words \u8220\'3fif
}
{\b1 \cf36 \f2 \i1 \fs20
*168
}
}
it did not\u8221\'3f because it seems to me that though specific words such as \
u8220\'3fwarning\u8221\'3f or \u8220\'3fdanger\u8221\'3f may not be found in the
summing-up, its whole tenor and spirit was such as to call attention to the
possibilities of making a mistake in identification and of the need to be sure that
no such mistake was in fact made.) Should it now be laid down that it is \
u8220\'3fin law\u8221\'3f the duty of a judge to give such a warning?
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
The suggestion or proposal is in some ways imprecise. It is not contended that it
should be laid down that evidence of visual identification must be corroborated.
What is urged is that there should be a requirement that a jury should be told to
bear in mind that there had been a number of instances in the past where witnesses
whose honesty was undisputed and whose opportunities for observation had been
adequate had made positive identifications which had subsequently been shown to be
wrong and that juries should be warned to be specially cautious before accepting
identification evidence, though they would be at liberty to act upon it if after
careful examination of it in the light of all the other evidence they felt
satisfied beyond reasonable doubt as to its correctness. The argument in favour of
some such new rule was largely founded upon the interesting judgment of Kingsmill
Moore J. in the case of
}
{\b0 \cf1 \f2 \i1 \fs20
The People v. Casey
}
}
(No.
}
{\b0 \cf1 \f2 \i1 \fs20
2) [1963] I.R. 33
}
}
.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
The rules and practices which have been evolved in criminal cases have as their
purpose that those only will be convicted who are proved to be guilty. It is the
aim of all to strive to reduce to a minimum the risks of the conviction of one who
is in fact innocent. A judge will have this aim constantly in mind during his
conduct of a trial and in his direction to the jury. It is manifest that in cases
where the vital issue is whether the identification of the accused person is
certain and reliable the judge must direct the jury with great care. However
careful is his general direction as to the onus of proof, the judge will feel it
necessary to deal specifically with all the matters relating to identification.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
Where conviction will involve the acceptance of the challenged evidence of one or
more witnesses in regard to identification,
}
{\b1 \cf36 \f2 \i1 \fs20
*169
}
}
a summing-up would be deficient if it did not give suitable guidance in regard to
identification. The circumstances of individual cases will, however, greatly
differ. Thus there may be cases in which a witness can say that at a certain place
and time he saw and clearly recognised the accused person. If the accused person
was someone who was well known to him or at least was well known to him by sight
and if the conditions at the relevant time were such that there was nothing to
impede or to prevent recognition or to make recognition difficult, then a jury
would mainly have to consider whether the witness was both truthful and dependable.
In the present case the police constable knew the accused well. There was no
dispute as to that. It was for the jury to decide not only whether the police
constable was a truthful witness, but also whether the conditions which existed at
the time when the police constable claimed to have seen and recognised the accused
were such that a mistake might have been made. I have referred to some of the
matters which the jury had to consider and were invited to consider. The issues
were, in my view, fairly and adequately dealt with in the summing-up.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
There will, however, be some cases where the situation is very different.
}
I refer to cases where a witness has seen someone whom he does not in any way know
and has had over a period of time to carry in his mind\rquote s eye a recollection
of the person and then is at some later date asked (either at an identification
parade or at some place) to say whether he can recognise the person whom he
previously saw. In such a situation it is manifest that dangers may result from
human fallibility. I would leave for future consideration the question whether
there is need to lay down any rule for the guidance of courts in such cases. A
summing-up that fails to give adequate instruction to the jury or which in the
circumstances and in relation to the facts of a particular case fails carefully to
alert them to the risks of convicting an innocent person might in any event be held
to be defective and to warrant the use by the Court of Criminal Appeal (Northern
Ireland) of certain of its ample powers. But I do not think that it would be
helpful to prescribe that in certain
}
{\b1 \cf36 \f2 \i1 \fs20
*170
}
}
defined or described circumstances a judge must use certain words. Nor do I think
that reference to cases in the past is either necessary or desirable.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
I consider, therefore, that it would be undesirable to seek to lay down as a rule
of law that a warning in some specific form or in some partly defined terms must be
given. A summing-up does not follow a stereotyped pattern. It need contain no set
form of words. Each case has its own features and a summing-up must be related to
those features and to the problems of the particular case. A judge will invite the
jury to give due consideration to the special issues which are presented by the
evidence. He will be guided by his duty as well as by his desire to ensure, so far
as he can ensure, that no innocent man is convicted. But the effectiveness of the
guidance which in his summing-up he may give to a jury will not be enhanced if he
is under the compulsion of having to incorporate some particular formula. An
incantation of certain words will be a poor substitute for or a useless addition to
the discerning guidance which the features of a particular case may require.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
I would dismiss the appeal.
\par
}
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
Lord Hodson:
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
My Lords, I concur.
\par
}
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
Lord Diplock:
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
My Lords, I concur.
\par
}
}
}
\u160\'3f
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \i0 \fs20
Representation
\par
}
}
}
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
}{\fi-360 \li {\*\pn \pnlvlblt \ilvl0 \ls1 \pnindent400 \pnf1 {\f2 \pntxtb \
u160\'3f}}{\listtext \b0 \cf1 \f2 \ri200 \i0 \qj \fs20 \li400 \u160\'3f\tab }\ls1
{\pntext }
{\pard }\b0 \cf1 \f2 \ri200 \i0 \qj \fs20 \li400
Solicitors: Kimber, Bull & Co. , agents for P. A. Duffy & Co., Dungannon , for the
appellant; Linklaters & Paines , agents for the Chief Crown Solicitor, Northern
Ireland , for the Attorney-General.
\par {\pntext }
}
}
}
{\qr \b0 \cf1 \f2 \ri0 \i1 \fs20 \li0
Appeal dismissed.
\par
}
}
}
{\b0 \cf20 \f2 \i0 \fs20
}
{\b0 \qc \cf1 \f2 \ri0 \i0 \fs20 \li0
}
}
}
}\sect }

Arthurs V Attorney General of Northern Ireland

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