Lynch, R v

Compliance with a police identification code does not itself make a witness’s out-of-court statement admissible as hearsay under section 114(1)(a) of the Criminal Justice Act 2003. The preserved res gestae exception permits only words accompanying and necessary to explain the act of identification. It has limited scope and does not ordinarily extend to a detailed account of the identified person’s conduct.

A statement may nevertheless be admitted under section 114(1)(d) where admission is in the interests of justice. Important considerations include the witness’s availability for questioning, a reliable formal record, the statement’s value in understanding the identification, its proximity to the events, and the existence of other evidence.

R v Lynch concerned two linked incidents of violent disorder in Aldershot. The appellant accepted that he was present but denied participation. He was convicted of violent disorder at Winchester Crown Court after a lengthy trial.

A witness had identified him at an identification parade and stated on the parade form that he had sworn at the victim after another person knocked the victim down. The trial judge admitted that statement as hearsay. The appellant appealed against conviction on the sole ground that the ruling was wrong.

The central issue was whether the witness’s recorded statement was admissible under the Criminal Justice Act 2003.

1. Appeal dismissed. The witness’s recorded statement at the identification parade was properly admitted under section 114(1)(d) of the Criminal Justice Act 2003 because its admission was in the interests of justice.

2. Sections 66 and 67 of the Police and Criminal Evidence Act 1984 did not provide statutory authority under section 114(1)(a) of the 2003 Act for admission of hearsay merely because the parade complied with Code D. Those provisions concern the issue, evidential use and observance of codes of practice. They do not alter the ordinary rules governing admissibility.

3. The court explained that R v McCay [1990] 1 WLR 645 concerned words necessary to identify the person selected at an identification parade. Such words may be admissible under the preserved res gestae rule in section 118(1), Rule 4(b). The exception is narrow. A statement describing the identified person’s conduct at the alleged offence went substantially beyond what was necessary to explain the act of identification. The court referred to R v Christie [1914] AC 545 as support for that limited approach.

4. The statutory interests-of-justice gateway was satisfied. The maker of the statement gave evidence and could have been recalled for further cross-examination; the defence declined that opportunity. The statement was made in the formal setting of an identification parade and reliably recorded. It was valuable in understanding the identification, made much closer to the events than the trial evidence, and was not the sole evidence implicating the appellant. It could also have been used to refresh memory under section 139.

5. The court was satisfied both that the evidence was correctly admitted and that the conviction was safe.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction in R v Lynch [2007] EWCA Crim 3035.
• Winchester Crown Court — the appellant was convicted of violent disorder. The trial judge admitted the witness’s identification-parade statement as hearsay.