H v Director of Public Prosecutions

When considering exclusion of identification evidence under section 78 of the Police and Criminal Evidence Act 1984, the court must decide whether admission would adversely affect the fairness of the proceedings. A breach of Code D does not automatically make informal identification evidence inadmissible. The court should consider whether the breach caused the particular mischief addressed by the relevant provision and whether it involved flagrant disregard or circumstances capable of arousing suspicion about the fairness of the procedure. Each case depends on its facts. On an appeal by way of case stated, the reviewing court should interfere with the fairness ruling only where it is Wednesbury irrational or perverse.

The claimant was convicted in the Chester Youth Court of six offences of criminal damage under section 1(1) of the Criminal Damage Act 1971. The prosecution relied on a roadside identification made shortly after the offences. The police failed to record the circumstances of that informal identification as required by Code D. The District Judge nevertheless admitted the evidence under section 78 of the Police and Criminal Evidence Act 1984, finding that its admission would not be unfair. The claimant appealed by way of case stated, arguing that the breach, together with the witness’s later failure to identify him photographically, made admission unfair.

1. The appeal was dismissed. The District Judge had correctly admitted the roadside identification evidence.
2. Section 78 requires the court to determine whether admission of the evidence would adversely affect the fairness of the proceedings. Breach of Code D is not, by itself, determinative. The issue must be resolved on the facts of each case.
3. In a Code D case, the court should consider whether the breach caused the mischief which the relevant provision was designed to prevent, and whether it resulted from flagrant disregard of the Code or created a suspicion that the identification procedure was unfair.
4. Recording a witness’s initial description and the circumstances of an informal identification is a sensible and useful safeguard. However, the failure to make such records did not make admission unfair on these facts. The identification occurred only minutes after the offences, following hot pursuit. It was impracticable to obtain and record a prior description. The claimant admitted being present with the group, both identified youths had been present when the damage occurred, the District Judge found a joint enterprise, and there was no suggestion of bad faith.
5. The witness’s later identification of the co-defendant but not the claimant at a photographic procedure did not show that the District Judge had wrongly assessed overall fairness.
6. On an appeal by way of case stated, the court should adopt the same approach as the Court of Appeal (Criminal Division) in reviewing a section 78 fairness ruling. Intervention is justified only where the ruling is Wednesbury irrational or perverse.

• High Court (Administrative Court): The appeal by way of case stated from the Chester Youth Court conviction was dismissed.