R & Ors v Director of Public Prosecutions

A breach of the identification procedures in the Police and Criminal Evidence Act 1984 codes does not automatically exclude identification evidence. The court must apply the fairness discretion under section 78, considering all the circumstances. Recognition evidence may properly be admitted where the witness knows the defendants well and had an adequate opportunity to observe them. The absence of further identification procedures is relevant, but speculative suggestions that other witnesses might have assisted the defence do not necessarily establish unfairness. An appellate court should not substitute its assessment for a trial judge’s conclusions where those conclusions are rationally supported by the evidence. An acquittal means only that guilt was not proved beyond reasonable doubt; it does not necessarily reject the witness’s evidence or establish that the defendant was uninvolved.

The claimants appealed by way of case stated against convictions and related rulings made by a district judge in the Youth Court. The proceedings arose from a violent incident involving a group of young people. The principal issue was whether recognition evidence from a 14-year-old witness should have been excluded because the police had failed to conduct identification procedures required by Code D under the Police and Criminal Evidence Act 1984. The appellants also challenged the refusal of submissions of no case to answer and the consistency and rationality of the convictions, given that another defendant was acquitted and one appellant was acquitted on a particular count.

1. Appeal dismissed. The district judge’s answers to the questions in the case stated were upheld.
2. The breach of Code D was accepted. It did not itself require exclusion of the evidence. The question was whether admission would have such an adverse effect on the fairness of the proceedings that exclusion was required under section 78 of the Police and Criminal Evidence Act 1984.
3. The witness had more than a fleeting opportunity to observe the participants and said that he knew the appellants well. In those circumstances, the district judge was entitled to admit his recognition evidence. A formal procedure would probably have tested only whether the witness knew the appellants, rather than whether he was truthful or accurate about their individual conduct.
4. The proposed identification procedures involving other witnesses were too speculative to show that the defence would have been in a better position. The preliminary admissibility rulings and the refusal of no-case submissions were therefore open to the district judge.
5. The convictions were not irrational. There were factual distinctions between the appellants and the acquitted defendant, including the witness’s differing degree of familiarity with them and the absence of a clearly identified role for the acquitted defendant. The acquittal did not amount to a finding that he was uninvolved or that the witness’s evidence was rejected generally.
6. The district judge should have stated his reasoning more fully in the case stated. That failure was undesirable, particularly in proceedings involving young offenders, but the agreed contemporaneous notes enabled the appeal to be determined and did not invalidate the convictions.
7. The court also declined to lift the statutory reporting restriction protecting the young defendants. No sufficient public interest had been identified in modifying the restriction for the reporting of the dismissed appeal.

• South and South East Hampshire Youth Court: the district judge convicted the appellants of specified offences, acquitting or finding no case to answer on certain counts.
• High Court (Administrative Court): the appeal by way of case stated was dismissed. The district judge’s rulings and convictions were upheld.