Maughan & Anor, R. v

A breach of a video-identification code does not automatically make the identification evidence unfair under Police and Criminal Evidence Act 1984, section 78. The decisive question is whether the procedure created a real risk of biased identification. The police need not provide images of people virtually identical to the suspect.

Separate recent offences may support an inference of propensity and be probative of identity where their character is sufficiently similar to the offence charged. Identification weaknesses remain matters for the jury where the evidence includes a sustained observation in good lighting. Sentence must remain commensurate with the offence and comply with totality.

The appellants were convicted at Bournemouth Crown Court of aggravated burglary after two armed intruders forced entry into a home and demanded money. The sole issue at trial was identification.

Maughan challenged the admission and summing-up treatment of a video-identification procedure which contained only seven distracters. Ward challenged the admission of his two later robbery convictions as propensity evidence, the fairness of his own video-identification procedure, and the sufficiency of the evidence. Both also appealed their 12-year sentences.

The central issues were whether the identification evidence was unfair or insufficient, whether the robbery convictions were properly admitted as propensity evidence, and whether the sentences were excessive.

1. The appeals against conviction were dismissed. The appeals against sentence were allowed. The 12-year sentences for aggravated burglary were quashed and replaced with sentences of eight years' imprisonment.

2. The breach of paragraph D2 of the video-identification Code did not require exclusion under section 78 of the Police and Criminal Evidence Act 1984. The recorder was entitled to treat the shortfall of one distracter, and any criticisms of resemblance, as matters for the jury. Having viewed the recording, the court held that the procedure was fair and did not create a danger that a witness would focus improperly on Maughan.

3. A fuller jury direction on the Code shortcomings would have been appropriate. However, the identification procedures had been a central issue throughout the trial and addressed in counsel's speeches. The jury could not have misunderstood the need to assess whether the shortcomings affected reliability.

4. There was sufficient identification evidence in each case to leave the matter to the jury. Each relevant witness had confronted an intruder for about two minutes in good lighting. Inconsistencies and confusion in the descriptions were substantial jury points, but did not make the evidence insufficient as a matter of law.

5. Ward's two robbery convictions were properly admitted under the Criminal Justice Act 2003. Although committed close together, they were separate home-intrusion offences. They supported an inference that Ward had a propensity to commit offences of the kind charged and made it more likely that he was one of the offenders.

6. The original sentences overstated the gravity of this aggravated burglary. The event was brief, no weapon was used, no physical injury was caused, and nothing was stolen. A substantial sentence remained necessary, but eight years was commensurate with the offence. Ward's consecutive three-year sentence for the robberies remained, producing a total of 11 years.

• Court of Appeal (Criminal Division): In [2006] EWCA Crim 3301, dismissed both conviction appeals and allowed the sentence appeals by substituting eight years' imprisonment for each 12-year aggravated-burglary sentence.
• Crown Court at Bournemouth: On 11 November 2005, convicted both appellants of aggravated burglary. On 20 December 2005, imposed 12 years' imprisonment on each; Ward also received three years' imprisonment consecutive for two robbery offences.