Lydiate, R v

In a recognition case, an identification parade is not necessarily required where the witness knew and could recognise the suspect. Even if a parade should have been held under Code D, its absence does not automatically require exclusion under section 78 of the Police and Criminal Evidence Act 1984. The court must assess the overall fairness of admitting the evidence.

A defendant’s exculpatory account may be a fact for section 34 of the Criminal Justice and Public Order Act 1994. A sentencing judge may take account of offences which were the means by which a proved conspiracy was carried out, provided the assessment is consistent with the jury’s verdict.

The applicant was convicted at Manchester Crown Court of conspiracy to murder and conspiracies to kidnap and falsely imprison. The prosecution alleged that he organised violent attempts to locate people whom he believed had attacked him.

He renewed applications for leave to appeal against conviction and sentence after the single judge had refused leave. His conviction challenges concerned recognition evidence admitted without an identification parade, an adverse-inference direction, and allegedly prejudicial evidence. He also sought to adduce fresh evidence from Rowles. His sentence challenge contended that the judge could not take uncharged violence and firearm use into account when sentencing for the conspiracies, and raised disparity and Article 6 delay arguments.

1. Leave to appeal against conviction and sentence was refused. The conviction grounds were unarguable and the concurrent 22-year sentences for kidnapping and false imprisonment were neither wrong in principle nor manifestly excessive.

2. The court applied Forbes [2001] 1 CAR 430. Foster’s repeated sightings of the applicant over about a year made this a case of pure recognition of a person well known to him. An identification parade was therefore unnecessary. In any event, a breach of Code D would not automatically require exclusion under section 78 of the Police and Criminal Evidence Act 1984. The recognition evidence, the ownership of the farm, and the telephone evidence meant that its admission had not adversely affected trial fairness.

3. The judge’s direction adequately told the jury that the absence of a parade deprived the applicant of the opportunity to test Foster’s claimed recognition. The direction that a dock identification was worthless was also sufficient. The summing-up fairly addressed the dangers of mistaken identification.

4. Applying R v Webber, the court held that the applicant’s asserted belief that Shawcross had shot him was an exculpatory account and therefore a fact capable of engaging section 34 of the Criminal Justice and Public Order Act 1994. It was relevant because it was inconsistent with the alleged revenge motive. It was for the jury to decide whether it was fair to draw an adverse inference from his failure to mention the alleged telephone call in interview.

5. A sentencing judge may take account of other offences which were the means chosen to execute a conspiracy, without requiring separate counts for each act of violence or firearm use. The judge may assess culpability from the evidence, so long as that assessment does not conflict with the jury’s verdict. The brutality and weapons use were integral to the conspiracies and could be reflected in sentence.

6. The court refused to receive Rowles’s evidence under section 23 of the Criminal Appeal Act 1968. There was no reasonable explanation for failing to seek or adduce it at trial. There was also no Article 6 breach because no culpable delay by the State had been shown.

• Court of Appeal (Criminal Division) — refused renewed leave to appeal against conviction and sentence: [2004] EWCA Crim 245.
• Manchester Crown Court — on 26 July 2000, convicted the applicant of conspiracy to murder and conspiracies to kidnap and falsely imprison; imposed life imprisonment for conspiracy to murder and concurrent 22-year sentences on the other conspiracies.