Neutral Citation Number: [2007] EWHC 2192 (Admin)

CO/3306/2007 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Tuesday, 17 July 2007
 
B e f o r e:

LORD JUSTICE AULD 

MR JUSTICE COLLINS 
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Between: 
H 
Claimant 
v 

DIRECTOR OF PUBLIC PROSECUTIONS 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr Ashley Barnes (instructed by Hemsleys) appeared on behalf of the Claimant
Mr Martin Roberts (instructed by Crown Prosecution Service) appeared on behalf of the Defendant
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J U D G M E N T
1.	LORD JUSTICE AULD:  The appellant, whom I shall refer to  throughout as JH, appeals by way of case stated against a    decision of the District Judge (Magistrates' Court) McCall, sitting at Chester Youth Court on 24 November 2006, convicting him of six charges of criminal damage to cars, contrary to Section 1 (1) of the Criminal Damage Act 1971.  
2.	The facts as disclosed in the case stated are that JH, a youth of 17, was charged with those offences, acting together with another whom I shall call KH.  It was the Crown's case that at about midnight on 23 June 2006 in Whipcord Lane in Chester Mr Peter Griffiths, in his home, heard banging noises outside.  When he looked out he saw a group of four youths, two on one side of the road and two on the other.  Two were kicking motor vehicles.  It appears from the charges they were kicking them so as to smash their nearside wing mirrors. The two on the side opposite were not participating in that kicking.
3.	Mr Griffiths went out to remonstrate with them.  After a short exchange they stopped and left the scene.  He followed them and grabbed hold of one of them, who broke free.  He returned home and called the police.  Having done that, he set out in his car looking for the youths.  While doing so, he received a call from his son who was being driven around the area by police officers who had responded to the call.  The son told him that they had located the youths and had them under observation.  Mr Griffiths drove in his car and joined his son and the police officers, one of whom was Police Constable Wright, and four youths standing nearby.  Within a very short time of his joining the officers, his son and the youths, Mr Griffiths identified JH as one of the four youths he had seen damaging the cars.  I think he also identified at the scene KH.  Up to that point, I should mention, there had been no direct contact, or opportunity for it, between Mr Griffiths and any officer to whom he could have given a short description of the youths before identifying these two in that informal way at the scene.  
4.	The police arrested the two ‑ JH and KH ‑ and took them to the police station.  It appears that Police Constable Wright made no note ‑ as was required of him ‑ of what had occurred.  After leaving the two youths at the police station, he returned to Whipcord Lane and noted the damage to the six vehicles.  Subsequently, when JH was interviewed at the police station, he admitted having been one of the youths present at the scene when the damage was caused.  However, he denied involvement in damaging the cars and denied having seen anyone damage them.  
5.	About two months later Mr Griffiths attended the police station where photographic identification procedures had been arranged.  In those procedures he identified KH as one of the two youths he had seen damaging the cars, but he did not identify JH.  
6.	At trial, JH contended that the evidence of Mr Griffiths' identification of him in the road shortly after the commission of the offences should be excluded under Section 78 of the Police and Criminal Evidence Act 1984 because of breach of Code D of that Act by Police Constable Wright, namely of a requirement on police officers to record as soon as possible details of their identification ‑ when it occurs and how it occurs ‑ of suspects and the action taken.  
7.	The District Judge found that there had been such a breach.  However he also found that Police Constable Wright had not acted in bad faith.  The Judge referred to JH's admission that he had been one of the group of four youths at the scene of the damage, two of whom Mr Griffiths had seen damaging cars.  In those circumstances the Judge held that the admission of evidence of identification of JH shortly after the commission of the offences would cause no unfairness to him.  He, therefore, declined to exclude the evidence in the exercise of judgment, sometimes called discretion, available to him under Section 78 of the Police and Criminal Evidence Act 1984.  
8.	After hearing all the evidence following that ruling, the Judge found that, though there was no evidence to indicate which of the cars had been damaged by JH and which by KH, it was a joint enterprise between them.  He was satisfied that the case was proved beyond reasonable doubt.  
9.	The question posed by the Judge for this Court was in these terms.  Was he correct in admitting the identification evidence in breach of Code D of the Codes of Practice issued under Sections 66 and Section 67 of the Police and Criminal Evidence Act 1984?  It is common ground that neither Police Constable Wright nor any other officer acted in bad faith at any stage of their involvement in this matter.  It is also common ground that neither Police Constable Wright nor any other officer involved made any note before Mr Griffiths' identification of JH in the road, of any description by him  of any of the youths he had seen in the group of four damaging the cars or of any statement that Mr Griffiths might have been made to him immediately following that identification as to its circumstances.  
10.	Code D, paragraph 3 (2) (a) provides in the following terms:
"where it is practicable to do so a record should be made of the witness's description of the suspect, as in paragraph 3 (1) (a), but before asking the witness to make an identification."
It also provides in subsequent paragraphs of paragraph 3 (2) as to what should be done by officers involved following an informal identification of this or other kinds without the usual protections of the formal identification process that can be arranged at a police station.  In particular, paragraph 3 (2) (e) provides:
"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 conditions at the time, (e.g. the distance the witness was from the suspect, the weather and the light); if witness's attention was drawn to the suspect; the reason for this; and anything said by the witness or a suspect about the identification or the conduct of the procedure."
As I have said, it is common ground that the officer failed to make any such note.  It is that failure that the Judge found to be a breach of the Code.
11.	Mr Ashley Barnes, on behalf of JH, whilst accepting that breach of paragraph 3 (2) (e) does not of itself render the evidence of informal identification at the roadside unsafe, submitted that Mr Griffiths' failure to identify JH at the later photographic identification procedure, in contrast to his identification of KH in that procedure, rendered the evidence of Mr Griffiths' roadside identification of JH potentially unfair.  Why?  Mr Barnes explained that, without evidence of either a first description or of what was said before and at the roadside identification and the circumstances of it, JH was deprived of the means of testing its accuracy, a protection for which Code D provided, in particular in paragraph 3 (2 (e).
12.	Mr Barnes referred the court to passages from the judgments of the Court of Appeal in R v Popat [1998] EWCA Crim 1035, R v Hickin and Others [1996] Crim LR 584, R v Vaughan, 30 April 1997, (unreported) and, in this Court, Ryan v Director of Public Prosecutions CO/315/2000 (unreported).  
13.	The principles as to the effect of breaches of Code D emerging from those cases, in particular Popat and Hickin, are well summarised in paragraphs 14‑38 of the current edition of Archbold.  The fundamental task for a trial judge, as in every Section 78 case, is whether the evidence sought to be excluded would have such an adverse effect on the proceedings as to render it unfair to the defendant.  Code D breaches are no exception to the general run of Section 78 jurisprudence, namely that every case must be determined on its own facts. However there are two issues that come to the fore in such cases: first, whether the breach occasioned the mischief of the particular provision of the Code in play that the Code as a whole was designed to prevent; and secondly,  whether it was a result of a flagrant disregard of the Code or was capable of arousing suspicion that the identification procedure was unfair.  There was no suggestion here, on behalf of JH, of bad faith on the part of the officers.  
14.	In informal identification procedures such as that in the circumstances of this case, the making by a police officer concerned of initial contact with a witness who claims to be able to identify the culprit, of a note of any description given by the witness, is a sensible and useful way of testing the accuracy of any subsequent identification.  So also would be a note made following an informal identification of the circumstances and any matters relevant to testing that identification.  
15.	As Mr Mark Roberts, for the Director of Public Prosecutions, commented in his skeleton argument and touched on in his oral submissions, it is plain from the Judge's statement of case that he was alive to the proper considerations governing his judgment whether to exclude evidence under Section 78 and the implications for the protection of defendants in cases of informal identification such as this indicated by the Code.  
16.	Mr Roberts emphasised the following features of the case which, he submitted, amply justified the Judge's decision and are apparent in his reasoning that the admission of the evidence would cause no unfairness to JH.  First this was an informal identification on the spot only minutes after the offence.  Second, it was made in circumstances following hot pursuit shortly after the commission of the offences in circumstances which made it impractical for Mr Griffiths to have given a description to any police officer of the youths for whom they were looking, still less for an officer to make a note of it at that stage.  Third, the two youths whom Mr Griffiths identified in the informal identification at the roadside were JH and his co‑accused KH, both of whom it was admitted had been present when the damage [was] done to the cars.  Fourth, the Judge was of the view, and he said so, that this was a joint enterprise.  Fifth, there was no suggestion by the defence of bad faith on the part of the officers.  
17.	In my view, all those factors were ample material on which the Judge could properly conclude that the breach of Code D paragraph 3 (2) (e) would not cause any unfairness to JH.  
18.	The fact that, in the later formal photographic identification procedure, Mr Griffiths identified KH, but not JH, is no basis on which the Court could, in my view, conclude that the Judge had wrongly exercised his judgment on the overall fairness of admitting the evidence.  I say that, not least having regard to JH's admission that he was at the scene in company with the other youths when at least two of them were damaging a car.  
19.	Finally, I should note the now well established approach of the Court of Appeal (Criminal Division) to Section 78 cases, when invited to consider the trial judge's exercise of judgment as to fairness, only to interfere with the judge's ruling if it is Wednesbury irrational or perverse.  In my view, this Court should adopt the very same approach on appeals to it by way of case stated on a point of law, for on such a point, anything falling short of Wednesbury irrationality will not do.  
20.	Accordingly, in my view, the answer to the District Judge's question should be yes and the appeal should be dismissed.
21.	MR JUSTICE COLLINS:  I agree.
22.	LORD JUSTICE AULD:  Are there any consequential applications?
23.	MR ROBERTS:  I am not instructed to apply for any.