England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		4th February 2005

Friday, 4th February 2005

1. MR JUSTICE MOSES: This is an appeal by way of case stated. It is on behalf of the Director of Public Prosecutions. It is unnecessary for me to outline in any detail the facts of this matter because the case stated will be annexed to my judgment and therefore form part of it.
2. The important aspect of the evidence and the context in which the issue arises, is that this respondent who, although notified, does not appear today, Michael Joseph Sweeney, was one of three men who visited the kebab shop where Mr Javed Iqbal was working. Javed Iqbal says that the man who drove the car, making a getaway, and who had previously thrown a battery within a plastic bag through the shop window, was the eldest of the three. Unlike the other two he was not clean shaven and had a scruffy beard. In those circumstances it was said that it could only have been this defendant who was guilty of the criminal damage and indeed of driving the car with an excess of alcohol.
3. However, as is noted in the case stated, that witness said that he knew that man from before and would recognise him. The issue therefore arose as to whether the Code of Practice D3.12(ii) applied. That states:

"3.12

...

"(ii) there is a witness available, who expresses an ability to identify the suspect, or where there is a reasonable chance of the witness being able to do so, and they have not been given an opportunity to identify the suspect in any of the procedures set out in paragraphs 3.5 to 3.10, and the suspect disputes being the person the witness claims to have seen, an identification procedure shall be held unless it is not practicable or it would serve no useful purpose in proving or disproving whether the suspect was involved in committing the offence. For example, when it is not disputed that the suspect is already well known to the witness who claims to have seen them commit the crime."

4. It is accepted, on behalf of the Director of Public Prosecutions, that in the light of the evidence of Mr Iqbal that he knew the oldest man, had seen him before, and would recognise him, an identification parade should have been held. The mandatory clear words of the Code, described by Lord Bingham in R v Forbes [2001] 1 CrAppR 430 as a "black line rule", did apply. The only issue in this appeal is whether the justices properly put their mind to their discretion to say, pursuant to section 78, that notwithstanding a breach of the Code no unfairness to the defendant occurred.
5. In the case stated it will be noted that their attention was drawn to section 78 of the Police and Criminal Evidence Act 1984 and that the justices merely say that in those circumstances, for the reasons they gave:

"... it would have been unfair to the Respondent to admit the identification evidence given by the witness Mr IQBAL. Section 78 of Police and Criminal Evidence Act 1984 gave us a discretion to exclude that evidence and we therefore excluded it."

6. In reality the justices ought to have looked at the Code and approached the question on the basis that they ought to have excluded the evidence unless they were satisfied that there was no injustice to the defendant by allowing the case to proceed and the evidence to be given, notwithstanding the breach of the Code.
7. In those circumstances they ought to have been reminded of the decision of the House of Lords in R v Forbes, to which I have already referred, and in particular the speech of Lord Bingham.
8. It appears from the way that questions are drafted that they did have in mind certain factors which would count against ruling that, because of the breach, the case should not proceed. They refer to the fact that the defendant admitted his presence at the scene of the incident. He admitted to being one of a group of three matching the description of the offender and that the defendant could be distinguished from the other two members of the group of three in that his appearance was markedly different from theirs.
9. They also refer to the fact that his defence in the taped interview was to assert that the throwing of the bag was committed by another person who was involved in a nearby gun fight. That would not explain why Mr Iqbal said that it was the same man who threw the battery through the window, who had got into the car, undoubtedly travelled in and driven by this defendant and the other two younger people, as the evidence of the police officers who had seen them nearby shortly afterwards confirmed.
10. In short, the justices do not grapple with the countervailing considerations for not excluding the evidence identified in the question they asked at paragraph 7. Nothing in the case explains why it was that there was any unfairness to the defendant, bearing in mind that the reason for his being accused of these particular crimes was because of the very different appearance he presented to the other two with whom he was at the kebab shop.
11. In other words, there was a factor which the justices ought to have taken into account which would have at least required very serious consideration as to whether it was right to exclude the evidence and whether in reality there was any unfairness to the defendant in not excluding it.
12. In particular they should have borne in mind what Lord Bingham said at paragraph 29 of the speech in Forbes, that there will be circumstances where it will not be right to exclude the evidence; in particular, where an eyewitness may be able to identify clothing or some particular peculiarity of the culprit that distinguishes him from others and which does not depend on any identification of his face (see paragraph 27).
13. But I need not say more because none of these issues appear, on the face of the case, to have been considered by the justices before they came to their conclusion. For all I know they may have been, but unfortunately the case does not set out any reasoning that enables this court properly to scrutinise or analyse the basis upon which they excluded this evidence.
14. In those circumstances, in my judgment, the right course is to allow the appeal and order that the matter be remitted to a fresh bench of justices to be reconsidered from the outset. Nothing in my judgment is to be regarded as in any way indicating to the justices how, at the end of the day, they should exercise their judgment as to whether the evidence is to be excluded or not. So long as they consider all the factors one way or the other, bearing in mind that, save in particular circumstances, the Code is to be complied with, they will have done all that is required of them.
15. MR WHITTAM: Thank you.
ANNEX

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

BETWEEN

CROWN PROSECUTION SERVICES

(Appellant)

V MICHAEL JOSEPH SWEENEY

(Respondent)

Case stated by the Justices for Birmingham in respect of their adjudication as a Magistrates' Court sitting at Birmingham.

CASE

1. On the 16th September 2003 the Respondent was charged with the following offences:

(a) On 16th September 2003 at Birmingham in the county of the West Midlands without lawful excuse destroyed property to the value of £616 belonging to Mohammed ARIF intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged. Contrary to S.1(1) Criminal Damage Act, 1971.

(b) On 16th September 2003 at Birmingham drove a vehicle a Burgundy Vauxhall Astra registration number J 63 JUT on a road, namely Lozells Road, after consuming so much alcohol that the proportion of it in your breath, namely 60 microgrammes of alcohol in 100 millilitres, exceeded the prescribed limit. Contrary to section 5(1)(a) of the Road Traffic Act, 1988.

(c) On 16th September 2003 at Birmingham used a vehicle namely a Burgundy Vauxhall Astra registration number J 63 JUT on a road or other public place, namely Lozells Road, when there was not in force in relation to that use a policy of insurance or such a security in respect of third party risks as complied with the requirements of Part VI of the Road Traffic Act, 1988 Contrary to Section 143(2) Road Traffic Act 1988.

(d) On 16th September 2003 at Birmingham used a vehicle namely a Burgundy Vauxhall Astra registration number J 63 JUT on a road or other public place, namely Lozells Road, to which Section 47 of the Road Traffic Act, 1988, applied and as respects which no test certificate had been issued within the appropriate period. Contrary to section 47(1) of the Road Traffic Act 1988.

(e) On 16th September 2003 at Birmingham drove a vehicle a Burgundy Vauxhall Astra registration number J 63 JUT on a road namely Lozells Road otherwise than in accordance with a licence authorising you to drive a motor vehicle of that class. Contrary to section 87(1) of the Road Traffic Act, 1988.

2. We heard the charges on 26th February 2004. The following is a summary of the evidence that was heard by the Court:

(a) PC GOODWIN gave evidence that on 16 September 2003 at about 02.48, he came across an argument between three men near to a red Astra car J 63 JUT. He did not establish their names at the time, although he subsequently identify them as the Respondent, Michael Patrick SWEENEY and James O'CONNORS. The car was parked at a peculiar angle, with the lights on. The engine was not running. He advised the men to go back home. The Respondent switched the vehicle lights off, and all of the men went into 141 Stamford Road. PC Goodwin made a routine radio vehicle check. PC EDWARDS and PC WOOD subsequently arrived at the location. The officers sought to enter the premises at 141 Stamford Road. Three men were in the lounge, the lights were on and then turned out. PC GOODWIN heard people going out of the rear of the premises and got the dog out of the van. Michael Patrick SWEENEY then let the officers into the house. The other two men including the respondent were subsequently arrested.

(b) PC WOODS gave evidence that on 16 September 2003 at about 02.45 he was on mobile patrol with PC EDWARDS when they were directed to attend at Stamford Road, Handsworth. There, he arrested James O'CONNORS in the rear garden. The Respondent was also in the vicinity, lying on the floor on the path, by the motor vehicle. PC WOODS's colleague arrested him.

(c) PC EDWARDS gave evidence that on 16 September 2003 he went with PC WOOD to the Stamford Road Area. They had been directed to an incident there. He arrested the Respondent in the rear gardens of the Stamford Road address. He was on the floor - he appeared to try and conceal himself by a vehicle. In PC EDWARDS's opinion the Respondent was in a drunken state. He was arrested for criminal damage and for driving whilst unfit through drink or drugs. PC Edwards later carried out the intoxilyser procedure. Lower reading was 62 microgrammes in breath.

(d) CHRISTINE PHIPPS'S statement under section 9 of the Criminal Justice Act 1967 was read to the Court - she produced a bundle of photographs of Sakhib Kebab Shop window.

(e) MOHAMMED ARIF gave evidence that he was the manager of the Sakhib kebab house. He was there on 16 September 2003 when he found a damaged window. He confirmed that the photographs produced by Christine PHIPPS showed the damage he found. He had given no-one permission to break the window. The window was repaired at a cost of £600.

(f) JAVED IQBAL gave evidence that on 16 September 2003 he was working behind the Counter at Sakhib. The shop was shut and he was cleaning up. Three white men came in. The youngest was in his early twenties, one was early to mid-thirties, and the eldest was aged forty to forty five. Mr IQBAL told them that the shop was closed, but they could have what the shop had got left. He served them with food and they left the shop initially. They went across the road and spoke to two others for no more than five minutes. The youngest and the middle aged men returned to the shop. The middle aged man asked for the burger which he had ordered. He was asking again and again - he was swearing and the younger one tried to pull him out of the shop. The oldest man was outside. The young one pulled the other to the door and the oldest one went to the car - a Vauxhall Astra. It was Burgundy - darkish, registration number J 63 JUT. He had a white carrier bag out of the boot and he put it through the window. When the glass broke Mr IQBAL saw it was a car battery. The three men got into the car and it drove off towards Brearley Road. The oldest man got in the drivers side - he was the one who drove. The other got in the other side. The person who hit the window was early to mid-forties, Irish accent, and scruffy beard. The other two were clean-shaven. Young one was skinny build and the other was medium build. Mr IQBAL had seen all three men before, but the youngest two not as regularly as the eldest.

(g) PC SKELHORN's statement under section 9 of the Criminal Justice Act 1967 was read to the Court.

(h) The record of taped interview can be summarised in that the Respondent denied the allegation. He admitted presence in the area of the shop, and witnessing a third party commit the offence. He asserted that the offence was committed by a person who was involved in a nearby gun fight.

3. It was contended by the Respondent at the conclusion of the prosecution case that:

(a) There was a breach of the PACE Codes of Practice and therefore unfairness under section 78 of the Police and Criminal Evidence Act 1984 and that evidence of identification should be excluded.

(b) Where a case relies on identification evidence, but identification is disputed, the police should afford an ID parade where the suspect and witness are available. In this instance there was no ID parade and there was no doubt that this defendant denied that he was responsible for the offence. There ought to have been an ID parade and there was not. There have been descriptions given which were relevant, and the witness could have identified the offender.

(c) The defence therefore submitted that there was no case for the Respondent to answer.

4. It was contended on behalf of the Appellant that in relation to application under the provision of section 78 of the Police and Criminal Evidence Act, 1984, a breach of the code does not lead to an automatic exclusion under Code D - as set out in the case of KHAN. The code proceeds under 3.12(ii) in that the suspect is well known to the witness there is no requirement for an ID procedure. There is a discretion as to the evidence and the Justices should not exclude it.

5. We were referred to the following cases/codes of practice.

R v Gayle [1999] 2 Cr Appeal R 130

R v White [2000] All ER (D) 602

R v Forbes [2001] 1 AC 473 (especially paragraph 23 onward)

Police and Criminal Evidence Act 1984 Codes of practice D2

6. We were of the opinion that:

(a) Paragraph 2.3 imposes a mandatory duty on police officers, except in the limited circumstances set out in that paragraph, to hold an identification parade whenever a suspect disputes identification and consents to a parade.

(b) It was clear from the interview with the Respondent that, although he admitted being at the scene of the incident at about the time of the damage, he denied being the person causing the damage, and denied being the driver of the motor vehicle. He was disputing the identification.

(c) Although there was evidence that the witness, Mr IQBAL, recognised the person he saw causing the damage and driving away as being a person he had seen before, this was not an instance of pure recognition of a person well known to him.

(d) This was not an instance where an identification parade would have been futile. Although the circumstances of the arrest were sufficient to justify the police officers' suspicions that the Respondent was the person causing the damage and driving away the car, bearing in mind the Respondent's denials, an identity parade should have been offered.

(e) There was no evidence that an identity parade had been offered. This was a breach of the Code D.

(f) In those circumstances, it would have been unfair to the Respondent to admit the identification evidence given by the witness Mr IQBAL. Section 78 of Police and Criminal Evidence Act 1984 gave us a discretion to exclude that evidence and we therefore excluded it.

(g) There was therefore no evidence to link the Respondent with either the offence of criminal damage, nor the driving of the motor vehicle.

(h) No tribunal properly directed could convict in view of the decision to exclude matter at Paragraph 6(f). There was therefore no case to answer and we dismissed the informations.

7. The questions for the opinion of the High Court are as follows:

(a) Were we wrong in law in ruling that there had been a breach of the Police and Criminal Evidence Act, 1984, Code of Practice D in not holding an identification parade in the following circumstances:

(i) The defendant admitted presence at the scene of the incident.

(ii) The defendant was known by sight to the witness.

(iii) The defendant admitted to being one of a group of three and matching the description of the offender.

(iv) The defendant could be distinguished from the other two members of the group of three in that his appearance was markedly different from theirs.

(b) Was the decision in this case one which a reasonable tribunal properly directed in law could have reached.

Signed on behalf of the justices

SG Abbott, Court Centre Manager (legal)

Dated: 13th August 2004