Marcus, R. v

A video-identification procedure that deliberately evades the safeguards in Code D may be so unfair that its admission renders the resulting convictions unsafe. Where the suspect could not be matched with sufficiently similar images, showing witnesses a second, unmasked compilation in which the suspect plainly stood out was necessarily contrary to the Code. The fact that the procedure was recorded and open to forensic challenge at trial did not cure its unfairness. In those circumstances, the evidence should have been excluded under section 78 of the Police and Criminal Evidence Act 1984. Convictions founded on that evidence were unsafe, but separate convictions supported by powerful freestanding evidence were unaffected.

The appellant was convicted at Birmingham Crown Court of seven robberies and one count of false imprisonment, and received a total sentence of 10 years’ imprisonment. He appealed against conviction.

The principal issue concerned a video-identification procedure used in relation to six counts. Having first shown witnesses masked images, the police showed some witnesses an unmasked version of the same compilation if no identification had been made. The appellant’s age and greying facial hair made him conspicuous among the selected images. The unmasked procedure was accepted to contravene Code D.

The question was whether the judge should have excluded the resulting identification evidence and whether the affected convictions were unsafe. A further issue was whether the separate convictions on counts 8 and 10 were contaminated by that procedure.

1. Appeal allowed in part. The convictions on counts 4, 12, 14, 15, 16 and 17 were unsafe because they depended, or substantially depended, on identification evidence obtained through an unfair procedure. The convictions on counts 8 and 10 were upheld.

2. Code D required a video compilation to include the suspect and at least eight persons who, so far as possible, resembled the suspect in age, height, general appearance and position in life. The police could not find suitable images. They therefore masked the images with the defence’s knowledge, but then arranged an unmasked second compilation and used it after masked viewings had not produced sufficient identifications.

3. The unmasked compilation necessarily failed the Code D resemblance requirement. The appellant was in his forties and had distinctive greying facial hair, whereas the other images were of much younger people and only two showed any facial hair. The procedure caused him to stand out, and the officer responsible accepted that it was blatantly unfair.

4. The court held that this was not a mere imperfection capable of being left to the jury’s assessment of weight. It was a deliberate device, prompted by concerns about the effectiveness of masking, to evade Code D. Recording the procedure and permitting cross-examination did not cure the unfairness. The judge should accordingly have excluded the evidence under section 78 of the Police and Criminal Evidence Act 1984.

5. The court declined to disturb counts 8 and 10. Each was supported by powerful independent evidence: DNA evidence on count 8 and an unchallenged separate video identification on count 10. Those convictions were not contaminated by the flawed procedure.

• Court of Appeal (Criminal Division): allowed the appeal against conviction in respect of counts 4, 12, 14, 15, 16 and 17: [2004] EWCA Crim 3387. It upheld the convictions on counts 8 and 10.

• Birmingham Crown Court: on 11 December 2003, convicted the appellant of seven robberies and false imprisonment and imposed a total custodial sentence of 10 years.