Spittle, R v

Evidence of a defendant’s propensity to commit offences of the charged kind may assist the accuracy of identification evidence, even where identification is the only live issue. Under the Criminal Justice Act 2003, such evidence is not inadmissible merely because it supports identification; it must not, however, be used to bolster a prosecution case so weak that it should be withdrawn from the jury.

A brief recognition identification need not be withdrawn where the witness was alert, had substantial prior familiarity with the defendant, made an immediate recognition and promptly identified the defendant. A second identification which is insufficient on its own may provide limited support to the stronger evidence, with its weight left to the jury.

The appellant was convicted on 16 January 2008 of dangerous driving, driving whilst disqualified and breach of an anti-social behaviour order. The Crown alleged that he drove a vehicle dangerously while disqualified; identity was the only live issue and the defence was alibi.

Two police officers gave recognition evidence. One had a brief observation during the incident but had spent considerable time with the appellant seven weeks earlier. The other caught only a fleeting glimpse. The Recorder refused a submission of no case to answer and admitted three previous convictions for driving whilst disqualified as bad-character evidence.

The appellant appealed against conviction. He challenged the adequacy of the identification evidence, the admission of the previous convictions, and the direction that the second officer’s evidence could provide limited support for the first officer’s identification.

1. Appeal dismissed. The Recorder was entitled to leave the identification issue to the jury. The evidence of the first officer was not so poor that it required withdrawal, even if the observation lasted only one rather than two or three seconds.

2. The decisive features were that the officer had been alerted to the dangerous driver, was trained in observation, recognised the appellant from substantial recent prior contact, immediately told his colleague of that recognition, and identified the appellant by photographs within 40 minutes. Those matters distinguished the evidence from an unexpected identification by a witness previously unfamiliar with the suspect. Its reliability was ultimately for the jury.

3. The previous convictions were capable of proving a propensity to drive whilst disqualified. Following R v Eastlake [2007] EWCA Crim 603, propensity evidence may support the conclusion that the accused was correctly identified, even where identification is the sole issue. The Recorder also properly concluded that the evidence was neither unjust nor unfair to admit and was not being used to shore up a weak case.

4. The seriousness of the dangerous-driving count did not diminish the relevance of the previous convictions. Whether the appellant was the driver was common to all three counts.

5. The Recorder correctly directed the jury that the second officer’s fleeting observation could not by itself sustain a conviction. It was nevertheless capable of giving limited support to the first officer’s evidence. The extent of that support was a matter for the jury.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2008] EWCA Crim 2537.
• Recorder: convicted the appellant on 16 January 2008 of dangerous driving, driving whilst disqualified, and breach of an anti-social behaviour order.