B, R. v

A breach of Code D in a video-identification procedure does not automatically require exclusion under Police and Criminal Evidence Act 1984, section 78. The court must assess whether the breach has such an adverse effect on the fairness of the proceedings that exclusion is required.

Before excluding identification evidence in a manner that terminates the prosecution, a judge must consider the full capacity of the trial process to cure or alleviate any unfairness. That includes submissions of no case, appropriate identification directions, cross-examination, defence evidence and any supporting evidence. A procedural defect which affects the weight of identification evidence will ordinarily be addressed at trial unless fairness cannot be assured.

B was charged at Isleworth Crown Court with kidnapping and robbery. The prosecution case depended principally on the victim's video identification of B.

The identification officer failed to ask the victim not to decide whether the suspect appeared in the images until he had viewed the full sequence twice, contrary to paragraph D11 of Code D. The trial judge excluded the identification evidence under section 78 of the Police and Criminal Evidence Act 1984. As no other evidence could prove the case, this was a terminating ruling.

The prosecution appealed under section 58 of the Criminal Justice Act 2003. The central issue was whether the Code D breach made exclusion necessary, or whether any potential unfairness could be addressed through the trial process.

1. Appeal allowed. The judge's exclusion of the video-identification evidence was reversed and the case was returned to Isleworth Crown Court for the trial to resume.

2. The officer had breached paragraph D11 of Code D. The applicable provision required a video-identification witness to be asked not to decide whether the person seen was among the images until the entire sequence had been viewed at least twice. The judge had instead referred to paragraph D16, which concerns identification parades and uses different language.

3. A Code D breach does not necessarily justify exclusion under section 78 of the Police and Criminal Evidence Act 1984. The relevant question is whether admission would adversely affect the fairness of the proceedings so that the evidence ought not to be admitted. The purpose of Code D is to secure fair identification practices and reliable identification evidence.

4. The judge correctly considered whether the consequences of the breach could be cured or alleviated at trial, but erred by focusing only on the possibility that the witness might have answered differently if properly instructed. The trial process includes the possibility of a submission of no case on the basis of Galbraith and Turnbull, judicial directions on identification and Code breaches, defence evidence, cross-examination and counsel's submissions.

5. The judge also failed to consider evidence capable of supporting the disputed identification, including evidence concerning the vehicle used in the offences. The Court's viewing of the recording disclosed no basis for criticism of the witness's demeanour. The difficult circumstances of the identification and its possible shortcomings went to weight, not present admissibility. Nothing in the judgment determined whether a later defence submission should be made at the close of the prosecution case.

• Court of Appeal (Criminal Division): The prosecution appeal under section 58 of the Criminal Justice Act 2003 was allowed. The Court reversed the terminating exclusion ruling and returned the case for trial: [2008] EWCA Crim 1524.
• Crown Court at Isleworth: The trial judge excluded the video-identification evidence under section 78 of the Police and Criminal Evidence Act 1984. The ruling terminated the prosecution because no other evidence could prove the case.