England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(DIVISIONAL COURT)

		Royal Courts of Justice Strand London WC2
		20th July 1998

LORD JUSTICE ROSE: We should say that s. 49 of the Children and Young Persons Act 1933 applies in this case.

This is an appeal by way of Case Stated from the Exmouth Youth Court. On 26th November 1997 an information was laid against the appellant which alleged that on 30th October, together with another young man, he had stolen a blue plastic ice pack, a canvas bag and a white plastic lunch box belonging to a Mr Bradbury.

The Justices heard this information on 19th March 1998. It appears from the Case Stated that they found the following facts. On 30th October a blue Ford Escort van had been parked in Pound Lane, Exmouth. At 11.20 a.m it was observed by a Mr Challice, who had a ground floor office facing Pound Lane. He saw two male youths standing by the nearside passenger door of the van whom he thought were 13 or 14 years of age. One wore a red top and blue jeans and the other a blue top and greyish coloured trousers. The latter youth opened the passenger door of the van, took out a bag and dropped it on the ground. He then picked it up, hid it beneath his top and, together with the other youth, ran to nearby allotments. Mr Challice telephoned the police. He had seen the youths for some five or six minutes. He saw them go through the allotments and disappear. A few minutes after that he saw the same two youths running through the allotments back into Pound Lane and he saw a police constable walking by the allotments and two youths being arrested by other police officers. Throughout all this, Mr Challice never left his office but he was interviewed by the police a little later.

The appellant had been wearing a blue top and grey trousers and the appellant's co-accused had been wearing a red top and blue jeans on 30th October. The Justices found that they had been arrested by the police at

11.35 a.m. having previously run off when being approached by the police. No identification parade was held.

The contention was advanced on behalf of the appellant that there had been a breach of Code D.2.3 of the Code of Practice issued under the Police and Criminal Evidence Act 1984 in that no identification parade had been held, although the appellant was prepared to attend on a parade and had indicated such willingness to the police. Code D.2.3 states:

"Whenever a suspect disputes an identification, an identification parade shall be held if the suspect consents."

It continues with other provisions which are not presently material. There having been a breach of that provision, it was submitted on behalf of the appellant that the evidence of Mr Challice should have been excluded under s. 78 of the Police and Criminal Evidence Act on the ground that its admission would have an adverse effect on the fairness of the proceedings.

On behalf of the prosecution, the case records that it was contended that there had been no breach of the Code, that the witness had recognised clothing and had observed the same two youths a few minutes after he had initially had them under observation for several minutes. In any event, it was contended that, even if there had been a breach of the Code, the evidence ought properly, having regard to the considerations enunciated in s. 78, to be admitted.

The Justices were referred to nine authorities listed in paragraph five of the case. They include the well-known case of R. v. Turnbull (1976) 63 Cr.App.R. 132 and also Oscar [1991] Crim LR 778. The Justices expressed the opinion that there had been a breach of Code D.2.3 because the appellant had disputed the identification and had consented to the holding of an identification parade. In consequence such a parade should have been held as soon as was reasonably practicable. They further expressed the opinion that, despite that breach, the evidence of Mr Challice was properly admissible having regard to the discretion provided by s. 78 of PACE. They said this:

"The identification of the Appellant and the co-accused was an informal identification by way of the recognition of clothing and an approximation of their ages."

They added that "the identification" by the witness took place before, during and immediately after the commission of the offence and there was no suggestion that the police officers had directed the attention of the witness to either the appellant or the accused.

The Justices concluded that there was, in the breach of the Code, no such substance as to compel the court to conclude that the admission of the evidence would give rise to what they referred to as "unjust prejudice" to the appellant. They went on to say that the admission of that evidence would not have an adverse effect on the fairness of the proceedings. They then said this at G:

"Having decided that the evidence of identification could properly be admitted we then considered the quality of that evidence, and directed ourselves as to the dangers of convicting on such identification evidence, having regard to the principle set down in R. v. Turnbull [1976] 3 All ER 549."

They then posed two questions for the consideration of this court to which, in a moment, I will return.

On behalf of the Appellant Mr Sapiecha advances three submissions. First, although he is critical of the Justices' reasoning, he says it was crucial that they held there had been a breach of the Code and this was correct. Secondly, in the light of that breach, a proper exercise of their discretion would have required the Justices to exclude the evidence of Mr Challice as having an adverse effect upon the fairness of the proceedings to such an extent as to require its exclusion. Thirdly, he submitted that, when they were deliberating and concluding as they did in G which I have cited, they ought further to have considered and did not, the difficulty created for the defence by reason of the lack of an identification parade: that is a matter to which they should have had regard when assessing the weight of the identification evidence.

So far as the first of those submissions is concerned, for my part, I am not persuaded that there was an identification in the present case within the terms of the Code of Practice. It is to be noted that

Mr Challice at no stage to the police, or in his evidence, or by reference to name, identified the appellant or the co-accused. What he did in his initial statement, repeated in evidence before the court, was to describe the clothing and approximate ages of two young men whom he saw. No doubt it was acting upon that information which led the police to arrest the two young men. But that arrest was not followed, as it was for example in Oscar, by a confrontation between the witness and those who had been arrested.

It is to be noted that, even in the case of Oscar, it was held that there had been no breach of the Code of Practice and that what had happened was that there had been an informal identification based on recognition of clothing within minutes of the arrest of the suspect. In my judgment, although clearly it was open to the defence to explore, in the course of trial, the question as to whether or not the two youths whom Mr Challice had seen were in fact the two youths whom the police arrested, there never was, as I have said, an identification of the accused by Mr Challice. Furthermore, this is, in my judgment, one of those cases where an identification parade could have served no useful purpose. Clothing could and no doubt would have been changed prior to the holding of any parade and, inevitably, those standing on the parade would have been of the approximate age of the appellant. But there was nothing in Mr Challice's description which bore upon the facial appearance, colouring, build, height, or manner of walking or moving of those he had seen. It follows, as it seems to me, that there was nothing forming any part of what he had seen which could have been usefully challenged by the holding of an identification parade. As was pointed out by Hobhouse LJ, giving the judgment of the Court of Appeal (Criminal Division) in R. v. Popat (unreported) (Court of Appeal transcript 23rd March 1998 at 18 C),

a number of the authorities which were in that case exhaustively reviewed by the court demonstrate the court adopting a purposive approach to the question of whether there has been a breach of the Code of Practice and posing the question as to whether the holding of an identification parade would serve any useful purpose. It is also to be observed that, in the course of that judgment, at 18B Hobhouse LJ said this:

"Decisions do not bear out the literalist dicta which treat the first sentence of paragraph 2.3 as requiring the holding of a formal identification parade whenever a suspect has become known and notwithstanding that he has previously been properly and adequately identified by the relevant witness. It is thus not correct that paragraph 2.3 requires that an already identified suspect be stood on an identification parade simply because he continues to dispute his identification.

Therefore, in our judgment, the effect of the Code and the law is that, when a suspect has become known and disputes his identification as the person who committed the crime alleged and the police wish to rely upon identification evidence provided by a witness, [I stress those words] the question must be asked whether that witness has already made an actual and complete identification of that individual. If the answer to that question is yes then the mandatory requirement of the first sentence of paragraph 2.3 does not apply. If the answer is no, paragraph 2.3 must be complied with and any failure to do so will amount to a breach of the Code."

In my judgment, therefore, Mr Challice not being a witness upon whose identification evidence the prosecution relied, the Justices were not right in concluding that there had been any breach of the Code of Practice. On the assumption that there had been a breach, for my part, I have no hesitation in concluding that, in the circumstances as I have outlined them, the Justices would have been entirely correct to exercise their discretion under s. 78 of the Police and Criminal Evidence Act to admit the evidence. It seems to me that to have excluded the evidence would have had an adverse effect on the fairness of the proceedings.

So far as Mr Sapiecha's third submission is concerned, I accept that, if it had been the case that there was a breach of the Code and the Justices had proceeded to admit the evidence despite that breach, they ought, in addition to the matter to which they refer in G of the case, to have considered, when evaluating the evidence at the conclusion of the case, what effect, if any, the failure to hold an identification parade might have had in prejudicing the defence.

For the reasons already given, however, there was no breach of the Code. Even if there had been, as it seems to me, the inevitable conclusion in the circumstances of this case, is that there was no prejudice to the defence, because an identification parade could not have served any useful purpose. For those reasons, in which there is implicit the answers I would give to those parts of the questions which continue to be relevant I, for my part, would dismiss this appeal.

MR JUSTICE BELL: I agree.

MR SAPIECHA: I understand Mr D has a legal aid certificate. I do not believe I have to ask for any order in respect of that, it will be taxed in the normal way.

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