K v Director of Public Prosecutions

A retrial following an irregular identification is generally appropriate unless a fair trial has become impossible. A disputed identification engages Code D.2.3. Except in the specified circumstances, an identification procedure is mandatory, even where the witness has previously seen or identified the suspect. Directing a witness towards a suspect breaches Code D.2.17 where the safeguards against such conduct are not observed. Where the police have committed those breaches, the court must consider whether admitting the identification evidence would adversely affect the fairness of the proceedings under section 78 of the Police and Criminal Evidence Act 1984. In the circumstances, the identification evidence was excluded and the conviction was quashed.

K, a minor, was convicted of robbery contrary to section 8 of the Theft Act 1968 at Grays Magistrates’ Court. An earlier trial had been discontinued after two purported dock identifications. Before the fresh trial, the victim gave a further statement concerning identification.

The case stated raised questions about abuse of process, the failure to hold an identification procedure under Code D.2.3, and whether identification evidence should be excluded under section 78 of the Police and Criminal Evidence Act 1984, including in light of a breach of Code D.2.17.

1. The fresh trial was not an abuse of process. Although dock identification is a serious irregularity, a retrial will generally be appropriate unless a fair trial is impossible. A further statement between trials may properly be taken where it records further information faithfully. It may justify a stay if it results from improper manipulation of the court process. The statement here merely clarified details already provided.
2. The District Judge was wrong to treat the issue as participation alone. K disputed being the person who had demanded money, taken the wallet and demanded the telephone. Identification was therefore in issue.
3. The police committed a clear breach of Code D.2.17 by pulling K to the police car and holding him at the window so that the victim could view him. The police should have kept witness and suspect apart and commenced an identification procedure.
4. In the circumstances, Code D.2.3 imposed a mandatory obligation to hold an identification procedure. The earlier confrontation did not displace that obligation. The court applied the reasoning in Forbes [2001] 1 AC 473, where a prior identification did not remove the duty to hold the prescribed procedure.
5. Having regard to the breaches and the circumstances in which the identification was obtained, admitting that evidence would adversely affect the fairness of the proceedings under section 78 of the Police and Criminal Evidence Act 1984. The identification evidence was excluded. Without it, the prosecution could not prove the case, so the conviction was quashed.

• High Court (Administrative Court): allowed the appeal by way of case stated, answered the questions in the appellant’s favour on the identification issues, and quashed the conviction.
• Grays Magistrates’ Court: convicted K of robbery on 23 July 2002.