J v Director of Public Prosecutions

In a magistrates’ court, an application under section 78 of the Police and Criminal Evidence Act 1984 need not be determined before the prosecution evidence is completed. The court may defer it where appropriate to secure a fair trial. At the close of the prosecution case, the question is whether the evidence, taken at its highest, could support a conviction. The court should consider identification evidence, including any breach of Code D and its effect on reliability, but need not finally determine the section 78 application at that stage. The defendants’ later evidence is irrelevant to a submission of no case at the close of the prosecution case.

This was an appeal by way of case stated from the Middlesex Justices sitting in the Youth Magistrates’ Court. Two juveniles charged with robbery challenged identification evidence under section 78 of the Police and Criminal Evidence Act 1984 and submitted that there was no case to answer.

The magistrates deferred final consideration of section 78, declined to exclude the identification evidence at that stage and found that each defendant had a case to answer. The central question was whether a bench of magistrates could properly reach that conclusion on the prosecution evidence and submissions then before it.

1. The appeal was dismissed. The High Court answered the stated question in the affirmative.
2. The magistrates were entitled to defer their final decision under section 78 of the Police and Criminal Evidence Act 1984. Vel v Owen [1987] Crim LR 496, as explained in Halawa v Federation Against Copyright Theft [1995] Cr App R 21, established that there is no general right to have section 78 determined before the evidence is given. The court may deal with the application when it arises or leave it until the end of the hearing.
3. At the close of the prosecution case, the magistrates had to apply the ordinary no-case test. The case should be dismissed only where there was no evidence of an essential element, or where the prosecution evidence had been so discredited or was so manifestly unreliable that no reasonable tribunal could safely convict on it.
4. Applying that test required consideration of the circumstances of the identification, any breach of Code D and the effect of the breach on reliability. The approach described in R v Forbes [2001] 1 AC 473 was relevant. The magistrates were not required at that stage to decide whether the defendants were guilty or to reach a final conclusion on section 78.
5. The defendants’ evidence of their presence had no relevance to the no-case submission, which arose at the close of the prosecution case. The magistrates’ conclusions showed that they had approached the issues correctly, notwithstanding their description of the interaction between the applications as unusually complex.

• High Court (Administrative Court): On an appeal by way of case stated, the court held that the magistrates could conclude that there was a case to answer and dismissed the appeal.
• Middlesex Justices, Youth Magistrates’ Court: The justices deferred final determination of the section 78 application, declined to exclude the identification evidence at that stage and found a case to answer.