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Cite as: [2001] EWCA Crim 2283

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NUNES, R v. [2001] EWCA Crim 2283 (31st October, 2001)

		[2001] EWCA Crim 2283
		Case No: 2000/07152/Z5

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOOLWICH
(His Honour Judge McKinnon)

Royal Courts of Justice
Strand,
London, WC2A 2LL

31st october 2001

B e f o r e :

LORD JUSTICE HENRY
MR JUSTICE GOLDRING
and
MR JUSTICE TOMLINSON
____________________

REGINA

- and -

Nigel Nunes

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

William Ryan Esq (instructed for the Appellant)
Michael Hall Esq (instructed for the Respondent)
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT

Crown Copyright ©
____________________

MR JUSTICE TOMLINSON::

This is the judgment of the Court. On 11 November 2000 before His Honour Judge McKinnon and a jury at the Crown Court at Woolwich the appellant Nigel Nunes was convicted of burglary and sentenced to three years’ imprisonment. He appeals against conviction by leave of the Single Judge. His appeal turns in part upon the meaning and effect of a provision to be found in Code D of the Code of Practice issued under the Police and Criminal Evidence Act 1984 and in part upon the adequacy of the trial judge’s direction as to the care with which disputed identification evidence should be approached. The two points are related.

The Facts.

Shortly before 11.30pm on Saturday 8th July 2000 the residents of number 33 Levendale Road, Forest Hill, reported to police seeing someone trying to break into the next door house, number 35, which was then unoccupied, the owners being away for the weekend. PC Benke and PC Penton drove to the area and parked a little way away. PC Benke made his way to the front of the house while PC Penton attempted to approach the rear via the back garden. PC Penton was frustrated in his endeavours by a seven foot fence and a wall. When PC Benke had reached a point about five feet away from the large bay window at the front of number 35 he was able to see into the front room. The light was on in that room and PC Benke saw a man inside. Having observed him PC Benke stepped back from the window so as not himself to be seen and then circulated on his radio a description of the man he had observed. He described him as Afro-Caribbean with a light skin colour and dark hair, wearing dark trousers and a white top. Later in evidence PC Benke went on to say that the man had been looking at the window towards him so that he had had a frontal view of him. He could not say for how long he had observed him, but he said that it was long enough to register a description.

Having circulated that description PC Benke went into the garden of number 33 for several minutes until he was joined by other officers. They then began a search of the area for the suspect.

PC Scorah was driving in the area with PC Curran. They heard the description given over the radio. PC Scorah saw a man who fitted the description walking in Woolstone Road. PC Scorah came up almost alongside this man and was able to observe him. When the person being thus observed noticed the car he turned round and ran back along Woolstone Road. PC Scorah turned his car around and followed the man, seeing him climb over a fence and disappear. PC Scorah circulated his own description of the man he had seen. He described him as a light skinned black male wearing black combat trousers and a lightish or light grey vest. He was 5foot 8inches tall, of stocky build with short dark hair. He had tattoos on his left shoulder.

PC Tolman and Sergeant Parrott were in a police van not far away. They received a message over their radio concerning a burglary suspect. They were given the description which had been circulated by PC Scorah. There was no direct evidence at trial that PC Benke heard over his radio the description given by PC Scorah, but Mr Hall who appeared both at trial and before us for the prosecution accepted that it was fair to proceed on the assumption that PC Benke did hear that description as it was given, including therefore the new piece of information that the suspect had tattoos on his left shoulder.

PC Tolman parked the police van in Elsinore Road, again nearby. After about twenty minutes PC Tolman and Sergeant Parrott saw a man appear in the front garden of the house opposite to where they were parked. PC Tolman said in evidence that he was at that stage about thirty feet away and he spotted then that the man had a tattoo, which was very distinctive in the street lighting. As the man fitted the description they had heard they gave chase. The man ran away. They shouted “Stop, police.” Finally they caught and restrained him. He said “I have not done anything.” He was told that he was being arrested on suspicion of burglary “as you match the description of suspect.”

PC Tolman and Sergeant Parrott each took hold of one of the arrested man’s arms and, with him between them, walked him towards the police van. It is unclear on the basis of the materials before us whether handcuffs were at this stage in place, although Mr Ryan, who appeared for the defence, asserted that they were. As the threesome made its way towards the van, PC Benke arrived at the scene on foot. He had heard on the radio that a man had been arrested at the junction of Elsinore Road and Vancouver Road and he drove to Elsinore Road where he parked. PC Benke had not been asked to attend but he went there in order to see if the person who had been arrested was the man he had seen in the house earlier. On arrival on the scene PC Benke identified the man held between the two police officers as the man he had earlier seen in the front room of 35 Levendale Road.

PC Benke said in evidence that he was not very familiar with the rules regarding identification. Sergeant Parrott did not know PC Benke and did not realise that he was going to identify the arrested man. He said in evidence that he could not stop PC Benke from identifying the man.

The arrested man was of course the appellant. He also had facial hair which did not feature in either of the two circulated descriptions, although it is plain that the appellant was indeed the man seen by PC Scorah. When arrested Nunes had no money in his possession, nor anything taken from number 35 Levendale Road. A burglary had indeed taken place there. Entry had been gained by French windows at the back. A passport and Ł340 in cash had been taken from a bedroom.

The appellant was interviewed the next day. On the advice of his solicitor he made no comment, that advice apparently being based upon the solicitor’s observation that his client did not correspond to the initial description. Immediately before the interview however the appellant told PC Riley that the reason he had run away the previous night was because he had some “draw” in his pocket. One of the socks which the appellant had been wearing was a sealed exhibit produced at trial. At the request of the defence it was searched at the beginning of the trial. In it was found a wrap of cannabis which had not hitherto been found by the police. No fingerprints or fibres from the appellant’s clothing were found at number 35 Levendale Road.

The appellant gave evidence at trial. He said that he had just left a friend’s house at Perry Hill Road where he had bought a “draw” from Michael McCardle. He rolled a “spliff,” left his house and began to walk towards Woolstone Road. He was on his way back to his mother’s house in Ottenden Street. It was a route he took often and he intended catching a bus which would take him into Southend Lane. He left his friend’s house at about 11.30pm and stayed on the right side of the road as it enabled him to see more easily whether a bus was approaching. He was halfway up Woolstone Road, smoking a “spliff” and as he approached Hurstbourne Road he saw a car coming down. He noticed that it was a police car which drove past but stopped at the end of the road. It had stopped directly in front of him and he saw that the officer was looking directly into his face. The appellant said that he then threw the “spliff” onto the pavement, walked around the back of the police car and continued walking between Hurstbourne Road and Elsinore Road. The police car drew alongside, travelling very slowly, with one of the officers talking on the radio. He suspected that he was going to be pulled over any minute and he did not want the officer to find the “weed” in his pocket. He therefore ran up Hurstbourne Road and hid between two cars. He took the “weed” out of his pocket and stuffed it down his sock. After a while he ran back down Hurstbourne Road towards Vancouver Road and saw an alleyway with a high wall which he jumped over. As he came into Elsinore Road and walked down Vancouver Road he saw police on the other side of the road running towards him. There could have been three or four officers and they told him to stay put. The appellant, however, jumped into a front garden and as they followed him he jumped into another. The appellant then held his hands up and asked them what it was he had done. He was arrested, handcuffed and put into the back of the police van. It was true that before the interview he told one of the officers that he had run away because he was carrying some “draw” but he then gave a “no comment” interview on the advice of his solicitor who said that there was a difference in the descriptions. He showed his tattoo and pointed out that he always wore a goatee beard and had one that evening. He did not commit a burglary at 35 Levendale Road that evening and denied that he had worked out a story having seen the statements. McCardle would not come forward and give evidence since he was the one who had given him the cannabis. He denied that he had just come out of the gardens when PC Tolman and Sergeant Parrott had spotted him.

It is contended by the Crown that the account given by the appellant is implausible and at variance with all of the officers’ evidence. It is also said that there was evidence to support the correctness and reliability of the identification by PC Benke in that both the burglar and the appellant were attired in only a vest/T-shirt despite the lateness of the hour and the inclement weather conditions. It is further said that the area had been sealed by the police, that no other person was seen on foot by any of the police officers during the forty minutes or so between PC Benke’s initial sighting and the arrest so that the inference must be that, if the appellant was not the burglar, the burglar must have escaped despite the seal. None of these points strikes us as being of any great weight, whether taken singly or cumulatively. In our view this was a case in which the identification evidence is likely to have been regarded by the jury as critical, as in our judgment it was.

At the outset of the trial Mr Ryan for the defence invited the learned Judge to exclude evidence of the identification by PC Benke on the grounds that there had been a breach of paragraph D:2.1 of Code D. The learned Judge ruled that, at the time of his arrest, and thus at the time of his identification by PC Benke, the appellant was a suspect but not a known suspect. He was not, he ruled, a known suspect until PC Benke purported to identify him. The learned judge therefore held that the procedure adopted had not amounted to a breach of the Code. He also indicated that even if he had concluded that there had been a breach of the Code, he would not have exercised his discretion under PACE Act Section 78 to exclude evidence of the identification as, in his view, there had been nothing substantially unfair in what occurred on the street. The learned Judge concluded that there would not be any unfairness in admitting the evidence in combination with the normal warning as to the care with which identification evidence should be approached.

In summing up to the jury the learned Judge gave a Turnbull direction. On the specific criticism of the reliability of the identification he said this:-

“It is suggested that the identification by Police Constable Benke when he went up to Vancouver Road to see who had been arrested was highly unsatisfactory. Because by identifying a person on the street in that way, it had the effect of depriving Mr Nunes of an identification parade when he would have been put at a police station somewhere, in a line of eight or nine volunteers of similar age and appearance. That would have been a far better test of whether Police Constable Benke could make an identification than with Mr Nunes being on his own and held by two police officers and then being identified. In this case, once Police Constable Benke had identified Mr Nunes on the street it would have been pointless to hold an identification parade afterwards. Because, having already made an identification in the street, if Police Constable Benke then picked out Mr Nunes again on an identification parade there would be an objection that the officer was simply picking out the person that he had already seen on the street.

Well members of the jury, sometimes it is not always possible to hold an identification parade before the victim of a crime or a witness to a crime points out a person as the offender. This can happen in the course of a violent incident, for example, in the street, after which a person is arrested and before he is put in the police van, a witness goes up to the arresting officer and identifies the person as having committed the assault or whatever it is. As you have heard, there are now rules, called the codes of practice, which the police must observe when making arrests and when obtaining evidence in the course of investigating a case. In this case there was no breach of the rules as such. There is no rule that requires the police to cover an arrested person’s face as soon as they are arrested. It would not be permissible for the police to take the victim of a crime to a suspect who was under arrest to see if he could identify him. However this is one of those cases where the identification did take place when the suspect, Mr Nunes, was under arrest and it is for you to judge whether Police Constable Benke did make a correct identification or whether he may have been mistaken.”

This case was tried a month before the House of Lords ruled in R-v-Forbes [2001] 2 WLR 1. In the light of that decision Mr Ryan for the defence contended that there had been an additional breach of the Code in the failure to hold an identification parade.

Relevant provisions of the Code are:-

“D:2.1 In a case which involves disputed identification evidence, and where the identity of the suspect is known to the police and he is available (see Note 2E), the methods of identification by witnesses which may be used are:

(i) a parade;

(ii) a group identification;

(iii) a video film;

(iv) a confrontation.

D:2.3 Whenever a suspect disputes an identification, an identification parade shall be held if the suspect consents unless paragraphs 2.4 or 2.7 or 2.10 apply. A parade may also be held if the officer in charge of the investigation considers that I would be useful, and the suspect consents.

D:2.17 A police officer may take a witness to a particular neighbourhood or place to see whether he can identify the person whom he said he saw on the relevant occasion. Before doing so, where practicable a record shall be made of any description given by the witness of the suspect. Care should be taken not to direct the witness’s attention to any individual.

D:2A Except for the provisions of Annex D paragraph 1, a police officer who is a witness for the purposes of this part of the code is subject to the same principles and procedures as a civilian witness.

D:2E References in this section to a suspect being ‘known’ means there is sufficient information known to the police to justify the arrest of a particular person for suspected involvement in the offence. A suspect being ‘available’ means that he is immediately available to take part in the procedure or he will become available within a reasonably short time.”

One of the purposes of the Codes is to govern the conduct of police officers in and about the detention, treatment, questioning and identification of persons. Mr Ryan submits that a breach of the Code occurred by reason alone of PC Benke identifying or being permitted to identify the appellant in the manner which he did, which was of course by a method other than that prescribed in paragraph D:2.1. We think it very unlikely that the draftsman of paragraph D:2.1 can have had in mind a case quite like the present, where a suspect is identified by a police officer so soon after the observation by that officer of the commission of a crime. In many if not most such cases whilst it might be possible at the moment of identification to say of the person identified that he is a known suspect it is unlikely that matters will have developed to a point at which it can also be said that it is a case which involves disputed identification evidence. In most cases of this sort there is unlikely to be disputed identification evidence until such time as the disputed identification has taken place. We rather doubt therefore whether this provision of the Code is directed at the typical case of an identification being made at the culmination of a hot pursuit, or at the conclusion of a process of sealing off of an area for a period of relatively short duration. In many such cases it would be simply unreal to think that police officers should be prevented from expressing their belief that the appropriate person had been apprehended, and juries would surely be surprised to be told that such conduct was a breach of the Code governing police behaviour.

It is therefore with some misgiving that we have nonetheless formed the view that on the particular facts of the present case there is no escape from the conclusion that both limbs of paragraph D:2.1 were satisfied with the result that PC Benke’s identification of this appellant did amount to a breach of the Code. We have already set out paragraph D:2E. Here by the time of the identification by PC Benke the appellant had been arrested for suspected involvement in the offence in relation to which PC Benke had circulated his description. It is not suggested that the arrest was unjustified or unlawful—on the contrary the case has proceeded on the basis that the police had sufficient information to justify the arrest of this appellant. They had apparently reliable evidence implicating the appellant in the commission of the offence in the shape of (1) PC Benke’s broadcast description (2) this appellant’s apparent conformity to that description and (3) this appellant’s apparent conformity to the description broadcast by PC Scorah of a person behaving suspiciously who in turn apparently conformed to PC Benke’s description. Upon the arrest of the appellant therefore this must have been a case where the identity of the suspect was known to the police.

On his apprehension the appellant immediately said that he had not done anything, whereas the police officers told him that he matched the description of a person suspected of having committed burglary. This occurred before the arrival of PC Benke. Matters had therefore by the arrival of PC Benke already developed to a point at which it could properly be said that this was a case which involved disputed identification evidence. The appellant was already disputing that he had been properly identified as a person recently observed committing a crime.

In Forbes, a case concerned with the mandatory language of paragraph D:2.3, Lord Bingham said this, at page 12:-

“Code D is intended to be an intensely practical document, giving police officers clear instructions on the approach that they should follow in specified circumstances. It is not old-fashioned literalism but sound interpretation to read the Code as meaning what it says.”

Applying that approach to this particular provision of the Code, it is plain that PC Benke used a method of identification other than those permitted by paragraph D:2.1. There was therefore a breach of the Code.

The learned Judge had to apply the law as it stood in the light of the decision of this court in R-v-Popat [1998] 2Cr App R 208. In the light of the disapproval of that decision in Forbes in our view it must also follow that there was a breach of the mandatory provisions of paragraph D:2.3 in that no identification parade was held. The appellant disputed that he had been correctly identified as the person observed committing burglary. It was suggested that we should regard the present as one of the possible situations to which paragraph D:2.3 does not apply—see paragraph 21 of Lord Bingham’s speech in Forbes at page 12 H to 13 C. It was suggested that the circumstances were analogous to those in R-v-Anastasiou [1998]Crim LR 67 where it was held that an identification parade would have been a farce as the arresting police officers would merely have identified the man who they had already arrested. That decision did not find favour with at least one learned commentator - see the commentary of Professor Birch, whose remarks are in part prescient of the speech of Lord Bingham in Forbes. Although Anastasiou was cited in Forbes without apparent adverse comment, we do not think that the learned Judge’s approach that an identification parade would here have been pointless can stand with the overall thrust of Lord Bingham’s speech. At page 8 Lord Bingham points out that if at the identification parade the eyewitness fails to identify the suspect, that will strengthen the suspect’s position both in the investigation and at trial. Conversely if the eyewitness identifies the suspect, this will weaken his position at both stages unless it appears that the eyewitness is identifying not the culprit who committed the crime but the person identified on an earlier occasion. If the suspect apprehends that an identification parade may strengthen the prosecution case, he will no doubt be advised to withhold his consent to the holding of a parade. But as Lord Bingham points out at page 13 of the report in Forbes, in the absence of exceptional circumstances of which he gives certain examples, the effect of paragraph D:2.3 is clear and mandatory. This appellant was deprived of the chance, however unlikely that may be thought to be, that PC Benke might in fact have failed to pick him out from amongst persons of similar appearance. He might well have thought, or been advised, that that chance, however slight, outweighed the likely prejudicial effect of being identified for a second time by PC Benke, an identification to which it could in any event be suggested at trial there should be attributed little probative value.

What Forbes demonstrates is that in those cases to which the relevant provisions of the Code apply, the holding of an identity parade is not optional. It is, from the point of view of the police, mandatory. The choice whether an identification parade takes place lies not with the police but with the suspect. We would suggest that that is just as it should be.

Mr Ryan suggested that had the learned Judge ruled at the outset that there had been a breach of the Code he would have been able during the course of the trial to have been more overtly critical of the police, whereas in the light of the Judge’s ruling he was obliged to “pull his punches.” We agree that matters would have been approached differently in the light of a ruling favourable to the defence, although of course had the application to exclude PC Benke’s identification evidence succeeded the whole shape of the trial, assuming that it continued, would of necessity have been very different. In the event of course the learned Judge ruled that he would have permitted the identification evidence to be adduced even had he concluded that there had been a breach of the Code. Consistently with his ruling he directed the jury that there had been no breach of the Codes of Practice so far as concerns the initial identification by PC Benke and furthermore he told the jury in unequivocal terms that it would have been pointless to have held an identification parade afterwards.

In our judgment it might well have been a perfectly proper exercise of discretion to permit the identification evidence to be adduced notwithstanding the breach of the Code involved in the initial making of the identification. Such an approach would have had to have been combined with a very full and careful direction as to the significance of both breaches of the Code, together with a warning as to the obvious shortcomings in the procedure adopted. However the case as presented to the jury would have worn a very different complexion if the Judge had directed the jury that what PC Benke had done or been permitted to do amounted to a breach of a code of conduct designed specifically to safeguard suspects against unreliable identification procedures. Furthermore not only was the Judge’s approach to the holding of an identification parade subsequently shown to be wrong in the light of the overruling of Popat but the Judge was also we think in error in suggesting that it would have been pointless to hold an identification parade, since he failed to advert to the possibility, however slight, that PC Benke might have failed to pick out this appellant. In our judgment these errors in approach affected not just the structure of the summing up but the whole structure of the case. The prejudice to the appellant is not outweighed by the Judge’s efforts to warn the jury of the dangers of there having been a mistaken identification. It is also a matter of concern to us that, by the time PC Benke came to make his identification, there had been circulated PC Scorah’s description which included reference to the prominent tattoo on the appellant’s left shoulder. Although mentioned in the summing up, that is not a point to which the learned Judge specifically referred when discussing whether the identification by PC Benke could be regarded as reliable. When combined with the fact that the appellant was at the time under arrest and being frog-marched towards a police van, it produces an identification procedure which cannot be regarded as satisfactory. Furthermore, this was we think a situation which cried out for the judge to point out that PC Benke’s initial observation and description included all the obvious and easy generalities - Afro-Carribean of light skin colour and dark hair, dark trousers and white top - whilst it omitted any mention of the particular distinguishing features which marked this appellant on that night - he was wearing a garment in the nature of a vest or T-shirt which exposed a prominent tattoo on his shoulder, and that he sported quite distinctive facial hair. It was simply too easy for PC Benke to come to the conclusion that the man under arrest, who happened to share the general characteristics noted by him on his first observation, must necessarily be the man observed through the window.

For all these reasons in our judgment this conviction is unsafe and accordingly we set it aside.