Muhidinz, R v

Where a defendant disputes being the person seen by a witness, the case is one of identification even if the defendant admits being nearby. Under Code D, an identification procedure is required where the witness could identify the suspect, unless it is impracticable or would serve no useful purpose.

Failure to provide that safeguard requires the jury to be directed that it was denied and to assess its significance fairly with all the evidence. A conviction is unsafe where the absence of that direction may have deprived the defence of a material challenge to the witness’s identification.

The appellant was convicted of robbery at Snaresbrook Crown Court and received a 21-month detention and training order. The prosecution alleged that he was one of three men who surrounded the complainant and took his money.

The appellant accepted that he had been in the road but maintained that he had been on the opposite side and had not participated. The trial judge treated the matter as participation rather than identification, and gave no identification-parade direction. The appeal therefore concerned whether the appellant’s account still left identification as a live issue, and the consequences of the absence of an identification procedure.

1. Appeal allowed; conviction quashed. The appellant’s admission that he was on the other side of the road did not amount to an admission that he was present with, or was one of, the men who confronted the complainant. His denial of participation therefore raised the question whether he was one of the robbers. This was an identification case.

2. Code D paragraph 3.12 required an identification procedure where a witness was able, or might reasonably be able, to identify the suspect and the suspect disputed being the person seen, unless the procedure was impracticable or could serve no useful purpose. The complainant had said that he could probably recognise the man in the hat, whom the prosecution alleged was the appellant. No identification parade was held.

3. Applying R v Forbes [2000] 1 AC 473, the court held that the failure was a breach of the Code. The breach did not automatically end the prosecution, but the jury should have been directed that the appellant had been denied an important safeguard and should have assessed that fact fairly in the context of all the evidence.

4. The evidence against the appellant was strong, including his flight and use of a false name. However, a failed identification procedure could have materially strengthened his defence, particularly given inconsistencies about his appearance and the absence of stolen money on his initial search. The omitted direction was a misdirection which rendered the verdict unsafe.

• Court of Appeal (Criminal Division) Allowed the appeal against conviction and quashed the robbery conviction: [2005] EWCA Crim 2758.
• Snaresbrook Crown Court Convicted the appellant of robbery on 26 May 2005 and imposed a 21-month detention and training order on 10 June 2005.