John v. The State of Trinidad & Tobago (Trinidad & Tobago)  UKPC 12 (16 March 2009)
Privy Council Appeal No 66 of 2007
Ronald John Appellant
The State of Trinidad and Tobago Respondent
THE COURT OF APPEAL OF THE REPUBLIC OF
TRINIDAD AND TOBAGO
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 16th March 2009
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Present at the hearing:-
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-Under-Heywood
Sir Jonathan Parker
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[Majority Judgment Delivered by Lord Brown of Eaton-Under-Heywood]
"An accomplice, by his very status, is a suspect witness and may have a motivation to give false evidence, and that is the general reason why I have warned you that the evidence of Jeffrey Lewis as an accomplice, which is the way the State has approached him, must be treated and approached with a great deal of special care and special caution. But in addition to that, an accomplice witness who receives an immunity from prosecution avoids prosecution altogether once he abides by the terms of the agreement. . . . If an accomplice starts off with a false account or a partly false account, all that an immunity may do is to have the effect in the accomplice's mind of tying him down to those initial accounts so that you must bear this possible danger in mind." (record pp 149-150)
He fully rehearsed all the evidence going to the question of Lewis's prior knowledge of the appellant and told the jury in terms that a dock identification (if that is how Lewis's evidence implicating the appellant was to be regarded) "would be worthless".
"The witness will naturally pick out the person whom he knows and whom he believes that he saw commit the crime. In fact, the evidence of the parade might mislead the jury into thinking that it somehow confirmed the identification, whereas all that it would confirm was the undisputed fact that the witness knew the accused. It would not in any way lessen the danger that the witness might have been mistaken in thinking that the accused was the person who committed the crime.
"If Claudette had failed to pick out the accused on the parade, her assertion that the accused were known to her would have been shown to be false. By not holding identification parades, the police had denied the accused an opportunity to demonstrate conclusively that she was not telling the truth."
"The case where the complainant had seen the assailant only once or on a few occasions before might well be treated as that of identification rather than recognition".
"The position is therefore that although one may speculate about the possibility that a parade would have destroyed the prosecution's case . . . it is not possible to say that the absence of a parade made the trial unfair. The judge was entitled to leave the question of credibility to the jury on the evidence before them. And once she was accepted as a credible witness, no criticism was or could be made of the judge's directions that the jury were to be careful about accepting her evidence that they were the gunmen.
[Counsel] submitted that the judge should have given the jury a specific direction about the absence of an identification parade and the dangers of a dock identification. But their Lordships consider that in the present case such directions were unnecessary. The judge told the jury that they should first consider whether Claudette Bernard was a credible witness. If they thought she was lying, the accused had to be acquitted. This appears to their Lordships to be sufficient, because if she was not lying, it would follow that there had been no need for an identification parade and the dock identification would have been the purely formal confirmation that the men she knew were the men in the dock."
"In the present case, it may well be that the judge bemoaned the fact that no identification parade had been held and pointed out the advantages of such a parade. But, despite what the Board had said in Pop, he did not point out that Mr Robateau had thereby lost the potential advantage of an inconclusive parade. Moreover, while giving directions on the care that needs to be taken with identification evidence in general, the judge did not warn the jury of the distinct and positive dangers of a dock identification without a previous identification parade. In particular, he did not draw their attention to the risk that the witnesses might have been influenced to make their identifications by seeing the appellants in the dock. And, perhaps most importantly, even if the judge's directions would have ensured that the jury appreciated that this type of identification evidence was undesirable in principle, he did not explain that they would require to approach that evidence with great care. On the contrary, the closing words of the direction really left the whole matter to the jury on the basis that the witnesses said that they knew the men and it was simply up to the jury to accept or reject their evidence."
"The Special Rapporteur wishes to reiterate that proceedings leading to the imposition of capital punishment must confirm to the highest standards of independence, competence, objectivity and impartiality of judges and juries, as found in the pertinent international legal instruments. All defendants facing the imposition of capital punishment must benefit from the services of a competent defence counsel at every stage of the proceedings. Defendants must be presumed innocent until their guilt has been proved beyond a reasonable doubt, in strict application of the highest standards for the gathering and assessment of evidence."
Mr Birnbaum submits that the failure to hold an identification parade here meant that the highest standards for the gathering of evidence were not met. The Board has already indicated at length why it concludes that the appellant was not in fact disadvantaged by the lack of a parade in this case. Only too well aware as they are that this is a capital case, their Lordships cannot in all conscience allow this appeal. Rather they must dismiss it.
Concurring Judgment by Lord Hoffmann
Dissenting Judgment by Baroness Hale of Richmond
(i) a witness has identified a suspect or purported to have identified a suspect prior to any identification procedure . . . having been held; or
(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 [those] procedures . . .
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."
". . . the judge did not warn the jury of the distinct and positive dangers of a dock identification without a previous identification parade. . . . And, perhaps most importantly, even if the judge's directions would have ensured that the jury appreciated that this type of identification evidence was undesirable in principle, he did not explain that they would require to approach that evidence with great care. On the contrary, the closing words of the direction really left the whole matter to the jury on the basis that the witnesses said that they knew the men and it was simply up to the jury to accept or reject their evidence".
That is in effect what the judge did in this case. He pointed out that if they agreed with the defence on the issue of whether or not Mr Lewis knew the accused beforehand, then
"this would be a core or fundamental weakness because a witness could then easily point out to, and implicate anyone who is sitting in the dock at the first opportunity, which is at the Magistrates' Court, and such a dock identification would not be a reliable and good one in the eyes of the law. Such an identification would be worthless. So this is a very important issue in this case for your determination'.
The reality is that Mr Lewis provided the police with two clues which enabled them to pick up the accused and after that no further steps were taken to confirm that they were right. This was a serious failure in a case which depended entirely upon the evidence of an accomplice. The majority may believe that the possibility that the police had leapt to the wrong conclusion is so slim that there is no risk of a miscarriage of justice. But this would not be the first time that the police had, quite understandably, leapt to a conclusion which turned out to be wrong. I may be more cynical than the majority, but I could not in all conscience send a man to his death on that basis.