McConnell, R. v

In an identification case, weaknesses in a complainant’s identification evidence do not require withdrawal from the jury where other evidence is capable of supporting it. The trial judge must assess the evidence as a whole. If there is evidence which, taken at its highest, could support the identification, the issue is properly left to a properly directed jury.

A conviction is not unsafe merely because the principal identifying witness gave an unsatisfactory description or because the identification procedure was delayed. The question is whether the combined evidence was capable of proving guilt.

The appellant was convicted at Stoke-on-Trent Crown Court of indecently assaulting a nine-year-old boy and received a three-year Community Rehabilitation Order.

The prosecution relied on the boy’s later video-identification of the appellant, together with evidence from the boy’s mother and a psychiatric nurse who knew the appellant and placed him near the relevant area at about the time of the assault. The defence denied that the appellant entered the garden where the assault occurred.

After the judge rejected a submission of no case to answer, the appellant gave evidence. On appeal, he contended that the identification evidence was so weak and unreliable that the case should not have been left to the jury.

1. Appeal dismissed. The conviction was not unsafe.
2. The court accepted that the complainant’s identification evidence presented serious difficulties. He had initially provided little description of the assailant. There had been a delay of more than a year before the identification procedure. On the complainant’s account, his mother had also pointed out the appellant before that procedure. There were discrepancies about the timing of the boy’s cry and his mother’s observations.
3. Those weaknesses did not, however, make this a case in which there was no case to answer. The judge had correctly recognised that the complainant’s evidence alone would not have sufficed. There was additional evidence capable of supporting it.
4. The boy’s mother, who knew the appellant, said that she saw him hurrying away from the garden after hearing her son crying and later identified him. A nurse, who also knew him, saw him running through a nearby hospital entrance in a frightened manner. Another witness saw a man in the vicinity, although he selected another person at the identification procedure. The events occurred over a short period.
5. Taking that evidence together, there was material capable of supporting the complainant’s identification. The judge was therefore entitled to leave guilt to the jury, which had been fairly and properly directed. The appeal against conviction was dismissed.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed in [2004] EWCA Crim 1358.
• Crown Court at Stoke-on-Trent: The appellant was convicted by a majority verdict of indecently assaulting a child and was made subject to a three-year Community Rehabilitation Order.