McKenna v Director of Public Prosecutions

PACE Code D imposes a mandatory obligation to hold an identification procedure where the witness has identified, or may identify, a disputed suspect, unless an recognised exception applies. The exception for a suspect already well known to the witness requires genuine familiarity; limited and dated contact may be insufficient. A distinction between recognition and identification, or between a suspect presented to a witness and a witness presenting the suspect to the police, does not by itself avoid the Code. Under Police and Criminal Evidence Act 1978, section 78(1), the court must consider the fairness of admitting evidence in all the circumstances. Good-quality recognition evidence, the timing of the interview, the available opportunity to meet the allegation, and corroborative circumstances may justify admission despite a breach of the Code.

The appellant was convicted by the Mid-Kent Magistrates’ Court of driving while disqualified and driving without insurance. The Crown Court, on appeal, held that the failure to hold an identification parade did not breach PACE Code D:3.12 and therefore did not consider exclusion under section 78(1) of the Police and Criminal Evidence Act 1978.

On appeal by way of case stated, the Administrative Court considered whether the identification procedure was mandatory and, if so, whether the recognition evidence should be excluded because its admission would adversely affect the fairness of the proceedings.

1. Appeal dismissed. The Crown Court was not entitled to find that the failure to hold an identification procedure complied with Code D:3.12. The answer to the first question was therefore no.
2. Code D imposes a hard-edged mandatory obligation. An identification procedure is required where the police have sufficient information to justify arrest, the witness has identified or may be able to identify the suspect, and the suspect disputes being the person involved, subject to the applicable exceptions.
3. The exception for a case of pure recognition of someone well known to the witness did not apply. The witness’s contact with the appellant had occurred mainly 14 years earlier, had been limited, and had not involved conversation. That evidence did not establish that the appellant was well known to her. The fact that the witness had effectively presented the suspect to the police rather than the police presenting him to her did not alter the application of the Code.
4. Under section 78(1) of the Police and Criminal Evidence Act 1978, the court had to consider all the circumstances and whether admission would adversely affect the fairness of the proceedings. The appellant had been notified within weeks, had been able to deny driving, and appeared capable of producing evidence supporting his defence.
5. The recognition evidence was capable of being regarded as good evidence. It was made in daylight over a period of time, by a special constable, and was supported by the appellant’s admissions that he had owned the vehicle and used the garage. Admission of the evidence did not cause an injustice. The answer to the second question was therefore also no.

1. High Court (Administrative Court): On appeal by way of case stated, held that the Crown Court had erred in finding no breach of Code D:3.12, but upheld admission of the evidence under section 78(1) and dismissed the appeal.
2. Crown Court sitting at Maidstone: On appeal from the Mid-Kent Magistrates’ Court, found no breach of Code D:3.12 and did not exercise its section 78 discretion.
3. Mid-Kent Magistrates’ Court: Convicted the appellant of driving while disqualified and driving without insurance.