England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		9 February 2011

1. LORD JUSTICE JACKSON:

This judgment is in five parts, namely:

Part 1. Introduction,

Part 2. The Facts,

Part 3. The Criminal Proceedings,

Part 4. The Appeal to the Court of Appeal,

Part 5. Conclusion.

Part 1 Introduction

2. This is an appeal against conviction essentially on the ground that the appellant was convicted on the basis of flawed identification evidence. It is important at the outset to set out the relevant provisions of the Code of Practice which deals with these matters.
3. Pursuant to the Police and Criminal Evidence Act 1984 the Secretary of State has issued a number of Codes of Practice to regulate the investigation of crime and to ensure the fair treatment of suspects. The fourth of these codes is Code D Practice for the Identification of Persons by Police Officers. Section D.3 of Code D is entitled "Identification by Witnesses." This section includes the following provisions:

"3.1 A record shall be made of the suspect's description as first given by a potential

witness. This record must:

(a) be made and kept in a form which enables details of that description to be accurately produced from it, in a visible and legible form, which can be given to the suspect or the suspect's solicitor in accordance with this Code;

....

3.2 In cases when the suspect's identity is not known, a witness may be taken to a particular neighbourhood or place to see whether they can identify the person they saw. Although the number, age, sex, race, general description and style of clothing of other people present at the location and the way in which any identification is made

cannot be controlled, the principles applicable to the formal procedures under paragraphs 3.5 to 3.10 shall be followed as far as practicable. For example:

(a) where it is practicable to do so, a record should be made of the witness' description of the suspect, as in paragraph 3.1(a), before asking the witness to make an identification;

(b) care must be taken not to direct the witness' attention to any individual unless taking into account all the circumstances, this cannot be avoided. However, this does not prevent a witness being asked to look carefully at the people around at the time or to look towards a group or in a particular direction, if this appears necessary to make sure that the witness does not overlook a possible suspect simply because the witness is looking in the opposite direction and also to enable the witness to make comparisons between any suspect and others who are in the area;

...

(d) once there is sufficient information to justify the arrest of a particular individual for suspected involvement in the offence, e.g., after a witness makes a positive identification, the provisions set out from paragraph 3.4 onwards shall apply for any other witnesses in relation to that individual. Subject to paragraphs 3.12 and 3.13, it is not necessary for the witness who makes such a positive identification to take part in a further procedure;

(e) the officer or police staff accompanying the witness must record, in their pocket book, the action taken as soon as, and in as much detail, as possible. The record should include: the date, time and place of the relevant occasion the witness claims to have previously seen the suspect; where any identification was made; how it was made and the conditions at the time (e.g., the distance the witness was from the suspect, the weather and light); if the witness's attention was drawn to the suspect; the reason for this; and anything said by the witness or the suspect about the identification or the conduct of the procedure."

Having set out the relevant provisions of the Code, we must now turn to the facts.

Part 2. The facts

4. In the early hours of Saturday 13th February 2010 Mr Ziyad Shoaib was waiting at a bus stop on Hartlington Road, Feltham. He was on his way home from work. Two young men approached. They attacked Mr Shoaib, punching and kicking him. They stole his bank debit card and forced him to reveal his PIN number before running off.
5. Mr Shoaib dialled 999 and reported the robbery to the police. In his 999 call he gave a very brief description of the two assailants. He said that one was a black male and one was an Asian male aged around 18 years.
6. The police sent the two most readily available officers to attend on Mr Shoaib. They were PC Poppy and PC Johnson. They arrived and spoke to Mr Shoaib. An ambulance also arrived in order to take Mr Shoaib to hospital because of his injuries.
7. Before Mr Shoaib was taken to hospital, however, he was taken by the police officers on a drive around the area. The objective was to see if Mr Shoaib could identify the robbers. As the police officers were driving around with Mr Shoaib in the car, they saw their colleagues arresting two suspects. There was quite a struggle in progress. Therefore PC Poppy and PC Johnson stopped their car and went over to assist.
8. Mr Shoaib recalls that he looked out of the window of the police car and recognised the two suspects as the men who had attacked him. Mr Shoaib recalls telling the police this in answer to a question. Shortly after that Mr Shoaib was taken to hospital for treatment.
9. The two men who were arrested were the appellant and a young man called Lloyd Francis. The two suspects were taken to the police station. The police officers also returned to the police station and wrote up their notes or made their statements. PC Poppy and PC Johnson recorded in their statements the description of the two assailants which had been given by Mr Shoaib when they first arrived at the scene. That description was as follows:

"There were two males, one possibly mixed race or Asian wearing grey trousers and grey hooded top. The second a black male with a maroon top and braided style ponytail."

However, the two officers did not record in their notebooks or their statements anything about Mr Shoaib identifying the two suspects at the time when the police car pulled up and PC Johnson and PC Poppy assisted in effecting the arrest.

10. Later that day, after his injuries had been treated at hospital, Mr Shoaib attended at Acton Police Station for an identification parade. The video identification procedure was adopted. Mr Shoaib picked out the appellant and Lloyd Francis in that procedure.
11. In the case of Lloyd Francis there could be little doubt about his involvement in the robbery. This was because there was blood on his person and the DNA from that blood matched the DNA of Mr Shoaib.
12. The two suspects were duly interviewed at the police station. The appellant in interview denied that he had been involved in the robbery of Mr Shoaib and indeed denied that he had been present or anywhere near the commission of that offence.
13. Following the interviews of the suspects and the other police investigations, criminal proceedings followed.

Part 3. The Criminal Proceedings

14. Both the appellant and Lloyd Francis were charged on an indictment containing one count of robbery, relating to the incident on 13th February 2010. The prosecution case was that Lloyd Francis was the man described as having been of mixed race or Asian, and that the appellant was the man whom Mr Shoaib had described as being the black man.
15. In view of the DNA evidence, Mr Francis had no prospect of acquittal and he duly pleaded guilty. The appellant however, against whom there was no DNA evidence, pleaded not guilty. His defence was that he had not been involved in or present at the robbery. In other words the appellant asserted that this was a case of mistaken identification. It was therefore for the prosecution to prove that the appellant had been correctly identified as the second robber and that had to be proved to the criminal standard.
16. The trial of the appellant took place in June 2010 at Isleworth Crown Court before Mr Recorder Brigden and a jury. At the start of the trial there was a voire dire. The reason for the voire dire was to ascertain whether Mr Shoaib had seen the two suspects at the time of arrest. Mr Charles Royle, defence counsel, who appears today in this court as well, had it in mind that he may be able to argue that the video identification procedure was tainted. The taint might well turn out to be that Mr Shoaib had seen the two suspects at the time of arrest and was simply picking out the two men whom he had seen being arrested. However, in the course of the voire dire events took an unexpected course. Mr Shoaib gave evidence to the effect that he had not only seen the two suspects at the time of arrest but also he had positively identified them as his two assailants. As previously mentioned, this was not a matter which featured in the witness statements of any of the police officers. Nor did it feature in the witness statement of Mr Shoaib.
17. In those circumstances, Mr Royle submitted to the court that there was now new evidence of a previously unknown street identification by the principal witness. Furthermore, this street identification had been conducted in a manner which breached a number of provisions of the Code. Therefore, submitted Mr Royle, the evidence of the initial street identification should be excluded. The Recorder briefly adjourned the hearing in order that further witness statements could be obtained from the police officers, in order to see whether they confirmed Mr Shoaib's recollection of the street identification.
18. Further witness statements were duly obtained before the trial proceeded and those have been furnished to this court today. It can be seen that the effect of those statements is that the officers describe taking Mr Shoaib on a drive around in the area of the robbery and they give a further account of the arrest of the suspects. However, they say nothing about any street identification conducted by Mr Shoaib at the time of the arrest.
19. With the benefit of these further witness statements, the arguments between counsel continued. It must be said that the Bench interrupted defence counsel in the course of his perfectly proper submissions more frequently than was either appropriate or conducive to an efficient disposal of this necessary application.
20. The Recorder in due course rejected the submission that the evidence of the street identification should be excluded. The trial then proceeded. The first witness was Mr Shoaib and he duly gave evidence of his initial identification of the two suspects. That evidence, including the cross-examination of Mr Shoaib, was summarised as follows by the Recorder in his summing-up and there is no suggestion that this summary is in any way inaccurate:

""I called the police and gave a description from outside the Airman Pub and at some point they said: 'We've got'" - when the police arrived - "'we've got two people and they look like you describe.'" And they drove off for 40 seconds approximately and he was asked: "Are these the two people?" I said: 'Yes. I recognise them.'

"I saw two young men surrounded by policemen. A police" - this is in cross-examination - he was asked again, quite rightly, the police constable said or the police constables, we do not know who it was, said: "Are these the two men who attacked you?" "And I said: 'Yes,' after having looked at them. I was in the car; the two were on the pavement. I took my time. I looked at the dress and height. I looked at them for about 35 seconds. They were" - do you remember, he pointed out - "they were about eight to 10 yards away. It was cold, it was not raining. There was quite good street lighting." And when pressed, he said: "I could've got the right people; I could have got the wrong people, but I was convinced about this defendant and I do not agree" - when he was accused of making a mistake by defence counsel, quite properly - "I do not agree I made a mistake.""

21. After Mr Shoaib had left the witness box several police officers gave evidence, including those who went to Mr Shoaib's initial assistance and those who were involved in the arrest of the two suspects. None of the police officers gave evidence to the effect that Mr Shoaib had identified the two suspects at the time of the arrest.
22. On behalf of the defence there was just the one witness, namely the appellant. The appellant gave evidence to the effect that on the night in question he had been to a party in Fruen Road, he had seen some policemen there and he was outside the party for a while. He left Fruen Road and he went into Bedfont Road, where apparently he was seen by a police officer. Then he said he met the co-defendant Lloyd Francis at the railway station. This was the first time he had seen Mr Francis that day. He then went up New Road, into Hounslow Road and he was arrested at the road junction. So the appellant gave evidence broadly in line with his interview to the effect that he had not been involved in the robbery and he had met Lloyd Francis by chance at a time when, as it subsequently turned out, Mr Lloyd Francis had finished carrying out the robbery.
23. The Recorder in his summing-up directed the jury that the central issue in the case was one of identification. In giving that direction the Recorder was plainly correct. The Recorder gave to the jury certain directions about identification evidence to which we shall return in Part 4 of this judgment.
24. In due course the jury returned a unanimous verdict of guilty.
25. The appellant was aggrieved by his conviction and maintains that the identification evidence against him was flawed. Accordingly he has appealed against conviction to this court.

Part 4. The Appeal to the Court of Appeal

26. The essential grounds of appeal are two-fold. First, it is said that there were errors by the police in obtaining identification evidence. Secondly, it is said that there were errors by the Recorder in conduct of the trial. We shall first examine the alleged errors on the part of the police.
27. The first point made by Mr Royle is that no street identification at all should have been undertaken in this case. Mr Royle draws our attention to the opening words of paragraph D.3.2 of Code D. Mr Royle submits that this was not a case where the suspect's identity was not known. This was a case where two suspects were being arrested. The officers arresting them had concluded that they entertained reasonable suspicion and that the circumstances were such that the suspects could be arrested and taken to the police station. In those circumstances, submits Mr Royle, the police should have avoided any attempt at street identification. If the two officers accompanying Mr Shoaib needed to assist in arresting the suspects (with whom there was something of a struggle), then they should have left Mr Shoaib in the company of the paramedics in the ambulance and they should have gone to assist by themselves. There was no need for Mr Shoaib to identify or indeed come within close sight of the two suspects.
28. We see considerable force in these submissions and we think that Mr Royle's contention is correct. The opening words of paragraph D.3.2 of the Code, are backed up by the opening words of sub-paragraph (d) of that section of the Code, which is to the same effect. It is clear that the police had taken a decision that they had sufficient grounds to warrant the arrest of Francis and the appellant. In those circumstances the proper course would have been to avoid any contamination of the witness and for the first identification procedure to be carried out at the police station. Indeed, we understood from the very helpful submissions of the prosecution today (Mr McLoughlin appearing for the prosecution, although he was not counsel at trial) that it is not seriously disputed that the police had sufficient material in their view to warrant arresting the suspects and taking them back to the police station.
29. The next point made by Mr Royle is that if the police decided to do a street identification then they should have conducted such an identification properly, and in accordance with the procedures in Code D. Mr Royle submits that there were three breaches of Code D in relation to the street identification. The first breach was that no record was made of the description of the suspect given by Mr Shoaib before he conducted the street identification. The second alleged breach of the Code is that the police did not take care not to direct the witness's attention towards the suspect. Mr Royle submits that it was quite plain who the suspect was from the circumstances in which the street identification took place, and that was a breach of paragraph D.3.2(b). Thirdly, submits Mr Royle, there was a breach of paragraph D.3.2(e) in that no record was made by the police officers of the street identification. Indeed not only were the details required by sub-paragraph (e) not set out in the record but the police officers' statements are entirely silent about this matter.
30. We shall examine each of these alleged breaches separately. So far as the first matter is concerned, it seems to us that if the police were going to carry out a street identification in circumstances where there was no necessity for the procedure at all, then they should certainly have taken care to record the description of the assailants given by Mr Shoaib before they asked him whether or not the two individuals being arrested were the men who had attacked him. There would be no particular problem for the police in doing this. A very brief description had already been recorded as a consequence of the 999 call in a CAD message on the police computer system. When the two officers first arrived to talk to Mr Shoaib, he gave them the very brief description of his assailants which we have read out in Part 2 of this judgment. That could rapidly have been recorded by PC Poppy or PC Johnson. However, it was not done. The first time when those two officers recorded this description was when they got back to the police station and were writing out their statements. In this regard, therefore, we accept the submission that there was a failure by the police to comply with the first part of paragraph D.3.1 of the Code and there was also a failure to comply with paragraph D.3.2(a) of the Code.
31. We come now to the second alleged breach of the Code. Here Mr Royle points out that when Mr Shoaib was conducting the street identification it was perfectly obvious who the suspects were, because there were two individuals struggling and surrounded by police officers who were restraining them. It did not take much imagination for Mr Shoaib to know where he should be looking. On this point Mr McLoughlin for the prosecution submits that really no alternative course was practicable. The police could not release hold of the two suspects because it was quite obvious that they would run away. No phraseology of the question could sensibly leave Mr Shoaib in any doubt as to who were the individuals he was being required to consider for identification purposes. Mr McLoughlin accepts that the question put to Mr Shoaib could have been more open than the form of words used, but he submits that that is of no practical consequence.
32. We see force in the prosecution's submissions in relation to this Code breach. If a street identification was going to be undertaken there was no way of avoiding the fact that Mr Shoaib would see who the two suspects were, and would have his attention drawn to them. Indeed that is a further reason why a street identification would be inappropriate in all the circumstances. But if the procedure was to be adopted, we do not think it involved a breach of sub-paragraph (b).
33. We now come to the third breach of the Code, namely a failure to comply with paragraph D.3.2(e) in that PC Poppy and PC Johnson failed to make any record whatsoever of the street identification which had been carried out. As a matter of fact it is clear that there was this breach of the Code. It is clear that no record was made of the street identification. There is no possible justification for that omission because when the police officers got back to the police station and were making their statements they could well have written out an account of what happened at the scene of the arrest, but they did not do so.
34. In the result therefore, in relation to this limb of the case we hold that there were two breaches of Code D as previously identified. Therefore, drawing the threads together, we accept that overall there was a breach of the Code in deciding to carry out a street identification and then, having made that decision, there were two further breaches of the Code by the police in carrying it out.
35. We come now to the second limb of this appeal, namely the contention that there were errors by the Recorder in the conduct of the trial.
36. The first matter complained of is that the Recorder erred in his ruling before the jury were sworn in, when he declined to exclude evidence of the street identification. The Recorder having listened, with a number of interruptions, to the submissions of counsel concluded that it was doubtful whether there was any breach of the Code. The Recorder also decided that, if there was a breach of the Code, then in the exercise of his discretion he would admit the identification evidence to be given by Mr Shoaib in relation to what he saw at the time of the arrest.
37. We do not agree with the Recorder's analysis. In our view there were clear breaches of the Code as identified above. There was no necessity for any breaches of the Code to be committed because the police could easily have taken the suspects to the police station and conducted a satisfactory identification parade at that location.
38. We now turn to the significance which the Recorder ought to have attached to the breaches of the Code. For this purpose it is necessary briefly to review some of the authorities relating to Code D.
39. In Popat [1998] 2 Cr.App.R 208, the appellant was the subject of a street identification. There was no subsequent identification parade conducted at the police station. A number of breaches of Code D occurred. The Court of Appeal carefully reviewed the matter and concluded that Popat's conviction was safe and they dismissed his appeal against conviction.
40. In R v Forbes [2001] 1 AC 473, the House of Lords gave guidance about the conduct of trials where Code D had been breached. In the course of that judgment the House of Lords disapproved this court's decision in Popat. At paragraph 20 of the speech of Lord Bingham, in sub-paragraph (i), the following comment on the Code is set out:

"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."

In paragraph 23 of his speech, Lord Bingham commented as follows on the effect of breaches of the Code:

"It was readily and rightly accepted for the appellant that even if the failure to hold an identification parade was (as we have concluded) a breach of Code D 2.3, it does not necessarily follow that the evidence of Mr Tabussum's identification should have been excluded. That would depend on an exercise of judgment under Section 78 of PACE, taking account of all the circumstances of the case. But it was argued that in the circumstances here the appellant had been denied a fair trial and his conviction should be considered unsafe. The starting point of this argument was the recorder's ruling (correct in the light of R v Popat, but wrong in the light of our decision) that there had been no breach of paragraph 2.3. From this it had followed that the Recorder had never exercised her judgment whether evidence of Mr Tabassum's street identification should be admitted or not, that the appellant's counsel had been denied the opportunity to cross-examine the police investigating officer on his decision not to hold an identification parade and that the jury had not been directed on the breach of the code and the possibility of prejudice to the defence of the appellant."

41. In K v Director of Public Prosecutions [2003] EWHC 351 (Admin), the victim was approached by a group of four persons, two black males, one white male and one mixed race black female, and was asked for money. The victim handed over his wallet which was searched and then returned to him. He was required to hand over his mobile phone, which he duly did. After the robbery the victim contacted the police who attended the scene. The victim described the group of four who had robbed him. A dog handler came to the scene. Two officers took the victim in their car to look for the group of four, whilst the dog and his handler started to track the path of the group. The dog and the handler were making good progress in that regard. In the meantime the police officers saw a group of four whom they thought might be the robbers. The officer told one of the suspects to walk to the police car with him as he wished to see if that suspect would be identified by the victim as a person responsible for the robbery. They pulled him over to the car and held him at the window. The victim, looking through the window of the police car, identified the person brought there as one of the four who had robbed him.
42. In due course the appellant, who had been so identified by the victim, stood trial at Grays Magistrates' Court before the District Judge. The appellant was convicted. However the Divisional Court, comprising Rose LJ and Henriques J, quashed that conviction. At paragraph 38, Henriques J giving the judgment of the court said this:

"The difficulty .... is that, at the time when witness and suspect were permitted to view one another, the safeguards built into the statute and the Codes of Practice were simply not being observed. This was a clear case in which the victim should not have been directed towards the suspect."

Henriques J went on to say that this was a case in which there should have been no confrontation. Instead, the victim and the suspect should have been kept apart, and an identification procedure should have been carried out later at the police station in accordance with Code D. The court thereafter ruled that the identification evidence should not have been admitted, and that therefore the conviction should be quashed.

43. In our view the Recorder in this case ought to have adopted the same analysis as that of the Divisional Court in K v DPP. This was a case where there were clear breaches of the Code of Practice and the Recorder ought to have disallowed the identification evidence. The evidence of the street identification could not safely or properly be adduced in view of the serial breaches of the Code which had occurred. Furthermore, the evidence of the video identification later that day could not be of any value. This was because the witness, Mr Shoaib, had seen quite close up the two suspects being arrested and there was therefore a substantial chance that during the video procedure, with the best will in the world and however honestly he attempted to do the task, Mr Shoaib would simply pick out the two suspects whom he had seen being arrested.
44. We bear in mind the observation of Lord Bingham in Forbes that Code D is an intensely practical document giving police officers clear instructions on the approach which they should follow. Unfortunately the fact is that in this case the police officers simply did not follow that clear and practical guidance.
45. We therefore conclude that the Recorder erred in his ruling at the start of the trial. Unfortunately, however, the Recorder's errors do not stop there. Having allowed the identification evidence to be admitted and the trial to proceed, the Recorder failed to give proper guidance in the summing-up.
46. There are three areas of concern in relation to the summing-up. First, the Recorder did not give a proper direction in relation to identification in accordance with the Court of Appeal's decision in Turnbull [1997] QB 224. The Recorder gave part of the standard form Turnbull direction but he did not express this as a straightforward direction of the court. Instead, on a number of occasions he used phrases which suggested that the guidance which he was giving reflected a defence submission. At one point he interjected in the Turnbull direction "This is the point that defence counsel makes". At another point he interjected that "Defence counsel has quite understandably and correctly pointed out certain matters".
47. Mr McLoughlin for the prosecution submits that these blemishes in the Turnbull direction do not matter because what the Recorder was doing was identifying sound submissions made by the defence and bolstering them or supporting them. We do not agree with that submission. In our view the Turnbull direction ought to be given with the imprimatur of the court and it ought to be made clear that that is a direction of law from the judge to the jury. Thereafter, when the judge comes to summarise the competing arguments of the parties, he can of course point out those aspects of the Turnbull direction upon which the defence place reliance. That, however, does not mean that the Turnbull direction should be given with interjections about defence submissions. We also note that a normal part of the Turnbull direction was omitted. This is the observation that wrongful convictions have occurred in the past because of mistaken identification.
48. The second area of concern in relation to the summing up relates to the video identification. The Recorder in his summing-up failed to tell the jury that the evidence which they had heard about the video identification was of no significance. The Recorder should have said that the evidence was of no significance because by the time of the video identification Mr Shoaib had already seen the two suspects earlier that day and had identified them as his assailants.
49. The fact that the video evidence was of no weight had, no doubt, been drawn to the attention of the jury during the course of the trial. Indeed we understand that that was common ground between counsel. Nevertheless, when the Recorder or judge sums such a case up at the end, if a piece of evidence, apparently damaging to the defendant, is in fact of no significance, then that should be explained to the jury.
50. The third area of concern in relation to the summing-up relates to the breaches which had occurred of Code D. The Recorder dealt with the question of the Code and breaches of the Code in the course of his directions of law. He referred to the arguments of counsel and observed that "arguably" there was a breach of Code D. In our view that was wrong. The Recorder ought to have identified all of the breaches of the Code which occurred and directed the jury's attention to those matters. However, this matter does not stop there. The House of Lords in Forbes have stated that the trial judge should explain to the jury the significance of any breaches of the Code and the prejudice or possible prejudice which these might cause to the defence. The Recorder gave no such direction in this case. Indeed, the Recorder tended to belittle the breaches of the Code in so far as they occurred by pointing out that the Crown in their submissions were relying on "a degree of commonsense."

Part 5. Conclusion

51. Let us now draw the threads together. In our view the identification evidence was flawed by reason of breaches of the Code and it should not therefore have been admitted. Furthermore, there were serious defects in the summing-up as outlined just now. When we stand back and look at this case in the round, we take the view that the conviction of the appellant is not safe and accordingly this appeal against conviction is allowed.
52. MR MCLOUGHLIN: My Lord, just for the sake of completeness and so I can get back to those instructing me to say I have raised this, it is implicit within your Lordships' ruling that there is no question of a retrial because the identification evidence against this defendant has been found to be flawed in the ways that you have outlined and therefore the Crown would simply have no evidence of identification to put before a second jury.
53. LORD JUSTICE JACKSON: You are clearly entitled to apply for a retrial if you see fit. However, we do not see how any such application could possibly succeed. I do not know if that indication is of any assistance.
54. MR MCLOUGHLIN: Indeed, it is. At least I may say that I raised it and had the reaction from your Lordships that I did.