Middleton, R v

A breach of PACE Codes Code D does not itself require exclusion of identification evidence. Under section 78 of PACE, the decisive question is whether admission would adversely affect the fairness of the proceedings. In assessing fairness, the court may consider the purpose of the breached safeguard, whether any reasonable objection could realistically have been made, and the opportunities actually available to raise it.

For a hostile witness, the jury must be told that a previous statement is not evidence of its truth unless accepted at trial. Where there is serious conflict between the statement and oral evidence, the jury may reject the witness's evidence. Further directions, including a caution, depend on the circumstances.

The appellant was convicted at the Crown Court at Wolverhampton of robbery, possessing a firearm when committing a Schedule 1 offence, and attempted robbery. The prosecution relied on, among other matters, video-identification evidence and evidence from two witnesses whose prior statements had implicated him.

On appeal, he challenged the admission of the video identification because Code D had been breached when neither he nor his solicitor was shown the images before they were shown to witnesses. He also challenged the jury directions concerning Jennifer Young and Gerald Preece, who were treated as hostile witnesses, and the ruling permitting the Crown to treat Preece as hostile.

1. Appeal dismissed. The court was satisfied, both separately and cumulatively, that none of the three grounds rendered the convictions unsafe.

2. There was an admitted breach of paragraph D7 of Annex A to Code D because the appellant and his solicitor had not been given the required prior opportunity to see the full set of identification images. The breach was not decisive. Applying section 78 of PACE, the question was whether admitting the evidence would adversely affect the fairness of the proceedings.

   The purpose of paragraph D7 was to permit a reasonable objection to the selection of images and, where practicable, its removal. The judge was entitled to find that the images complied with paragraph D2 and that no reasonable objection could realistically have been made. The appellant's solicitor had also seen the same images during the immediately preceding procedure and made no objection before the positive identification. The judge's exercise of discretion was therefore properly open to him, and no real unfairness resulted.

3. The jury directions concerning Jennifer Young were sufficient. The essential directions were that prior statements were not evidence of their truth unless accepted by the witness at trial, and that serious conflict between the prior statement and the oral evidence could justify rejecting the witness's evidence altogether. Any further direction depended on the case's circumstances.

   Ugorji [1999] 9 Archbold News 3 was distinguishable because its hostile witness accepted the crucial part of the earlier statement as true. Young did not clearly accept any materially adverse part of her statement. The summing-up adequately identified the inconsistency and the possible unreliability of her evidence, consistently with the guidance in Maw [1994] Crim LR 841.

4. Preece's departure from his prior statement was substantial, not minimal. It removed evidence capable of supporting an inference that the appellant sought to hide on learning of an arrest. The trial judge was plainly entitled to permit the Crown to treat him as hostile, and the same directions on prior statements were adequate.

• Court of Appeal (Criminal Division): In [2005] EWCA Crim 692, dismissed the appeal against conviction.
• Crown Court at Wolverhampton: On 12 December 2003, convicted the appellant of robbery, possession of a firearm when committing a Schedule 1 offence, and attempted robbery.