Director of Public Prosecutions, R (on the application of) v Sweeney

Where a suspect disputes identification, Code D ordinarily requires an identification procedure unless it is impracticable or would serve no useful purpose. A breach does not automatically require exclusion of the identification evidence under section 78 of the Police and Criminal Evidence Act 1984. The tribunal must approach the discretion on the basis that exclusion is ordinarily required unless it is satisfied that admitting the evidence would cause no injustice. It must engage with all countervailing considerations, including evidence that the witness may have identified a distinctive feature, clothing or other peculiarity rather than the suspect’s face. A case stated decision which fails to show that those matters were considered should be remitted for reconsideration.

The Director of Public Prosecutions appealed by way of case stated against the decision of Birmingham magistrates. The magistrates excluded identification evidence after finding a breach of Code D because no identification parade had been held, and dismissed the informations. The witness had said that he knew the suspect from before and could recognise him, but the suspect denied being the offender. The central issues were whether an identification procedure was required and whether the magistrates had properly exercised their discretion under section 78 of the Police and Criminal Evidence Act 1984.

1. The appeal was allowed and the matter was remitted to a fresh bench of justices for reconsideration from the outset.

2. The Director accepted that Code D3.12(ii) applied. Its mandatory wording required an identification procedure where a witness could identify, or might reasonably be able to identify, the suspect, the suspect had not been given an opportunity to participate in a prescribed procedure, and identification was disputed, unless the procedure was impracticable or would serve no useful purpose. The exception for a suspect already well known to the witness did not apply merely because the witness had seen him before.

3. The magistrates had approached section 78 incorrectly. They should have considered whether, notwithstanding the breach, there was no injustice in allowing the identification evidence to be given. The evidence should ordinarily be excluded unless that conclusion was reached after proper consideration of the relevant circumstances.

4. In applying the guidance in R v Forbes [2001] 1 AC 473, the magistrates needed to address the countervailing evidence. The suspect admitted being present with two others, and his appearance was said to differ markedly from theirs. The witness had described the offender as having a scruffy beard, whereas the other two men were clean-shaven. Those features might permit identification by a distinctive peculiarity rather than by facial recognition, and might make exclusion inappropriate.

5. The case stated did not explain whether those matters, or the reasons for admitting rather than excluding the evidence, had been considered. The court therefore gave no indication as to the ultimate exercise of discretion. The fresh bench was required to consider all relevant factors, bearing in mind that the Code should ordinarily be complied with, but was left free to decide whether the evidence should ultimately be excluded.

• High Court (Administrative Court): Birmingham magistrates’ decision was set aside and the matter was remitted for reconsideration.