(b) Later that evening she was walking along Chapman Street, a road near the site of the assault, when saw a youth she believed she had served in her shop earlier that day. She paid him no particular attention.

(c) Her route then took her along a disused railway line. There she was accosted and indecently assaulted by an Asian youth whom she described as: aged 13 to 14, clear skinned, no facial hair, big ears, quite big teeth at the front, 5'2", small and skinny build. He wore khaki coloured waist length jacket with rust colour trims, dark trousers and he looked generally dirty. She had a good opportunity to observe him during this attack which lasted for a period of 5 to 10 minutes.

(d) She made a written statement about the incident to WPC Morgan the next day and included a description of her assailant.

(e) On 20.8.94 she was again at work in the shop in Queens Square with her friend Amanda Hall when she saw a group of Asian youths, one of whom she immediately recognised as her attacker. She shouted 'that's him' and immediately ran to the back of the shop. She only had him in view for a matter of seconds but was absolutely sure it was the youth who had assaulted her.

(f) Amanda Hall remained at the front of the shop closer to the group of youths and saw them make their way from one of the exits from Queens Square. She subsequently viewed an identification parade but did not (along with 2 other witnesses) pick out the Appellant.

(g) The police were summoned to attend the shop and arrived within a short time.
PCs Poyner and Wootton commenced an area search whilst WPC Morgan and PC Martin escorted V to their police car. On approaching the car they received a radio message instructing WPC Morgan to go to Littlewoods Store where a youth had been detained by PC Poyner. She joined PC Poyner and on her instruction the Appellant was arrested. WPC Morgan did not inform PC Poyner that there may be any risk of the Appellant being seen by V as she assumed that PC Martin had already left the area to carry out a mobile search. Had he been informed, steps could have been taken to eliminate any such risk.

(h) As PC Martin drove slowly out of the service road V saw the Appellant being escorted by WPC Morgan and PC Poyner. Without being prompted or directed she
said 'that's definitely him'. She saw him from a distance of about 10 yards for some seconds.

(i) In interview the Appellant denied the attack and denied being the youth in the shoe shop on 20.8.94. He agreed that he was in the town on 13.8.94 and was looking for shoes size 8. He knew and frequented the Chapman Street area and wore a coat on the day of his arrest and interview which was similar to that described by V. The description given by V to the Police largely accorded with the Appellant's features. These matters tended to support the correctness of the her identification of the Appellant.

(j) At the relevant time there were 5 colour close circuit television cameras located within Queen's Square Shopping Centre but for various reasons, particularly with 2 of the cameras it is difficult on playback to establish any character definition. A police officer viewed the video tape recording from 20.8.94 in the control room at Queens Square and that tape was retained by the centre staff. He reported back to
DC Spooner that it was of no assistance and the tape was recorded over.

(k) The Appellant was not called to give evidence nor was any witness called on his behalf as to the facts. In interview he said that at the relevant time he was with his with cousin's sister.

(l) At interview in the presence of his Father and Cousin the Appellant had maintained he was 14, born on 9th January 1980, and at the trial in the Youth Court it was not suggested that this was wrong. It was first suggested that his date of birth was 1st September 1980 before the sentencing Youth Court. At the outset of the Appeal we were told that the issue in the case was 'identity' and it was only after the close of the Prosecution case that we were told that the issue of
'doli incapax' was to be raised. We allowed the Respondent to reopen his case, de bene esse, but in fact the Respondent simply referred us to portions of the interview which we had not hitherto read.

(m) The following day, the Appellant's father gave evidence that he had registered the birth in Pakistan. He was not in Pakistan at the time of the birth and had registered the birth some months later.

(n) We formed as a fact that the Appellant was probably 14 at the time of the offence, but that, in any event, he knew his act was seriously wrong and thus the presumption of doli incapax was rebutted.

The case ends after setting out the contentions on each side:
"We were of the opinion that:-

(i) the 'confrontation' was not one that was within Code D. It was an accident, there was no bad faith, it was not arranged and the highest it could be put, was that if one officer made the position clear it would not have occurred. As for the video tape, it would have been of extremely poor quality and of no use to anyone. Accordingly, we refused to exclude the evidence of identification because (1) the evidence did not fall to be considered within Code D and (b) even if it did, we would exercise our discretion to admit it.

(ii) Given the fact that the Appellant was very nearly 14 and in the light of the replies he gave in interview the presumption of doli incapax was clearly rebutted."

2. The Justices then pose three questions for this court:

"1. Whether we were correct in our finding that Code D did not apply to the confrontation evidence of identification.

2. Whether we properly exercised our discretion under Section 78.

3. Whether we were correct in our finding that the presumption of doli incapax was rebutted."

3. From that case it appears that the Court was proceeding on the basis that the boy was just short of 14 at the relevant time. It is useful to deal with this side of the matter first. The question is put this way, "Whether we were correct in our finding". More properly, the question should have been put,

"Was the material upon which we were entitled to find that the presumption of doli incapax was rebutted". It is clear that the only material which the court had was the tape-recorded interview of this boy which took place in the presence of his father. That interview is not appended to the tape but Miss Wiggans, who appears for the appellant, has been good enough to put it in front of us. The reason it was not appended to the tape was apparently this. This whole question of doli incapax was raised, as appears from the case, extremely late in the day and the tape-recorded interview had not been edited in the way that it normally would be because there were elements in it which required editing.

4. We have read through the tape-recorded interview. In the interview it appears that the appellant was a boy who was not merely familiar with the religious teaching of his family but that he knew perfectly well that doing the sort of thing that he was accused of doing; which involved touching a girl's breasts, putting his hands between his legs and indeed threatening her with a knife and rape, was wrong. He was taken the line that it was not he who had done it. We are quite satisfied that there was material upon which the Magistrates could find that the presumption of doli incapax was rebutted. For what it is worth, I would have found the same way myself.

5. Further, Miss Wiggans relied on section 78 of the Police and Criminal Evidence Act which is well-known and reads:


"(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

6. She relied on three separate matters. First, although she accepted that the girl had a perfectly good opportunity initially, at the time of the assault, to take the measure of her assailant and to see what he looked like, the two subsequent occasions on which she saw him were ones of a fleeting glance. Second, the destruction of the tapes by the police, without giving the appellant a chance to see them, constituted an element of unfairness. Her third point was that the way that the victim saw the appellant in the police car, as described in the case, amounted to a confrontation and in those circumstances, what happened was a breach of Code D.

7. As it seems to me, Miss Wiggans is confusing weight of evidence and admissibility of evidence. Section 78 is essentially concerned with admissibility. The question before the present court is whether the discretionary decision of the Magistrates not to exclude the evidence by the victim is one that can be attacked by this court. That is the question that should have been put to us. In my judgment, it cannot.

8. There was no confrontation as envisaged by the code. The whole identification procedure comes into play once a suspect says "it's not me"," it wasn't me". Then the Code lays down how the police are to deal with that type of situation. What happened here was an accidental meeting before that point had ever arrived. It seems to me clear beyond argument that in those cases the Code as such does not apply.

9. It can fairly be said that the value of the identification can be significantly diminished in circumstances such as the present, which are rather like a dock identification where everything points to the particular person. That goes not to admissibility but to weight. Similarly, it can be said that the destruction of the tapes by the police was precipitous and since they were potentially relevant, they should not have been destroyed but should have been made available to the defence. Whether they would have any use to the defence, in the light of the findings of the Magistrates, it is difficult to know. They might have found that it was difficult on playback to establish character definition. The point is made by Miss Wiggans that it is possible that techniques of enhancement would be such to show that the appellant was not amongst the group of Asian youths who were seen outside that shop. It is not for us to comment on the likelihood of that. All one can say is that it is, perhaps, a possibility.

10. The point could fairly have been made, and we do not doubt was made by Miss Wiggans, that these two occasions when the victim shouted "that's him" are ones in which she may have leapt to a conclusion, whereas the whole of the Confrontation procedure set out in Code D is one which requires the possibility of witnesses going along and looking carefully and comparing the different faces and deciding what to do. That is a fair point and it is no doubt one which the Magistrates weighed. But they decided and it was within their discretion that this evidence was admissible and they decided that the whole of the evidence showed that this gentlemen, whom they described as looking in precisely the way that V describes him, was the man concerned. Whether they would have come to the same conclusion if he had given evidence that he was elsewhere, one does not know and one does not speculate.

11. I would answer the questions as reformulated by the Magistrates thus. They were correct in finding that Code D did not apply to the confrontation evidence of identification. Secondly, they were entitled to exercise their discretion as they did. Thirdly, they were entitled to find that the presumption of doli incapax was rebutted. In those circumstances, I would dismiss the appeal.



MR JUSTICE BUTTERFIELD: I agree.

12. LORD JUSTICE SCHIEMANN: Are you legally aided?


13. MISS WIGGANS: Yes, my Lord. I would ask for legal aid taxation.


14. LORD JUSTICE SCHIEMANN: Yes. You may have it.


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