Hassan v R

Where witnesses identify a participant only by clothing, and there is no dispute about visual identification of the suspect, a Turnbull direction is unnecessary. Where an identification parade required by Code D has not been held but the identification evidence is admitted, the jury must be told of the breach, the lost safeguard and its possible effect on the reliability of the evidence. The direction should be tailored to the evidence and should not invite speculation about why the parade was not held. A direction is not a misdirection merely because it is longer or less focused than it should have been, if it conveys the essential points and the conviction remains safe.

The appellant was convicted at the Crown Court at Middlesex Guildhall of violent disorder arising from a fight involving groups of youths. He was acquitted of three counts of wounding with intent.

The prosecution relied principally on witnesses who identified a participant by distinctive clothing. The appellant accepted that he was present at some stage but denied participating in the disorder. Although he agreed to an identification parade, none was held. The trial judge found a breach of Code D but admitted the identification evidence under section 78 of the Police and Criminal Evidence Act 1984.

On appeal, the appellant challenged the summing-up. The issues were whether a Turnbull direction was required and whether the direction on the missing identification parade rendered the conviction unsafe.

1. Appeal dismissed. The conviction for violent disorder was safe.

2. A Turnbull direction was unnecessary. The evidence did not raise a dispute about identification by the appellant’s visual appearance. The relevant witnesses identified the person holding the knife by clothing. The court applied R v Gayle [1999] 2 Cr App Rep 131 and R v Doldur [2000] Crim LR 178.

3. The judge was entitled, and in the circumstances obliged, to address the failure to hold a parade. Defence counsel had improperly described the police decision as shameful and disgraceful although the reasons for it had not been explored before the jury. The judge had already ruled that a parade should have been held. There was therefore no issue for the jury about whether a parade would have been futile, and they should not have been invited to speculate about that matter.

4. The court followed the guidance in R v Forbes [2000] UKHL 66. Where evidence is admitted despite a breach of Code D, the jury should be told that there was a breach and how it arose, and should assess its possible effect. A missing parade deprives a suspect of an opportunity to test the reliability of eyewitness identification. The appropriate direction depends on the circumstances.

5. The summing-up could have been shorter and more focused. It nevertheless told the jury that the parade should have occurred, that the appellant had lost its potential benefit, and that the issue was relevant to their assessment of the evidence. Its unnecessary discussion of the possible reasons for the failure did not amount to a misdirection. Looking at the summing-up as a whole, the conviction was not unsafe.

• Court of Appeal (Criminal Division): Dismissed the appellant’s appeal against conviction: [2004] EWCA Crim 1478.

• Crown Court at Middlesex Guildhall: On 11 July 2003, convicted the appellant of violent disorder and acquitted him of three counts of wounding with intent.