Chaney v R.

Police officers shown CCTV images for the purposes of recognition and tracing are not, at that initial stage, witnesses whose identification evidence is directly governed by Code D of the Police and Criminal Evidence Act 1984. Fairness nevertheless requires a reliable record by which the claimed recognition can be scrutinised.

A spontaneous contemporaneous response may provide that record. Information suggesting a suspect’s identity and any failure to identify particular features are matters for the jury’s assessment. Recognition evidence requires an appropriate warning, but a full Turnbull direction is inappropriate where the case concerns recognition rather than eyewitness identification. Any omission must be assessed against the safety of the conviction on the evidence as a whole.

The appellant was convicted at Winchester Crown Court of theft of a shotgun, acquiring a shotgun without a certificate, and driving while disqualified. CCTV footage showed the thief concealing and later collecting an object consistent with the stolen shotgun using a car bearing the appellant’s registration number.

A police officer, who had recently dealt with the appellant in an unrelated matter, was emailed CCTV stills and replied that he could identify the appellant. The appellant challenged the admission of that recognition evidence. He also contended that the judge’s directions on identification and the absence of identification procedures for two civilian witnesses rendered the convictions unsafe.

The central issue was whether the recognition evidence was unfair or improperly admitted, and whether any deficiency in the jury directions made the conviction unsafe.

1. Appeal dismissed. The conviction was safe. The court was satisfied that the appellant had been rightly convicted.

2. Paragraph 3.28 of Code D of the Police and Criminal Evidence Act 1984 permitted the circulation of images to police officers for recognition and tracing. At the point when the stills were sent, the officer was not a witness to the theft and was not being shown material to obtain identification evidence. He became a potential witness only when he recognised the appellant. The procedures in Annex A or Annex E could not then practicably be undertaken retrospectively. Code D was not directly applicable to this recognition exercise.

3. The court applied the safeguards identified in R v Dean Smith and others [2008] EWCA Crim 1342. The officer’s contemporaneous email recorded his initial reaction and the words of recognition. It was spontaneous and available for jury scrutiny. The email’s reference to the appellant as a suspect, and the officer’s later identification of the relevant features, were matters affecting weight rather than admissibility.

4. The judge should have warned the jury to approach the recognition evidence with caution. A full Turnbull direction was inappropriate because this was recognition evidence, not an eyewitness identification. The omission did not make the conviction unsafe. The vehicle in the footage matched the appellant’s registration number, make, model and colour, and other evidence concerning his cap, trainers and jacket provided further support.

5. The absence of an identification procedure involving the two shop witnesses was regrettable, but the jury knew why it had not occurred. The appellant had neither the benefit of their failing to identify him nor the disadvantage of an identification they might have made.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction.
• Winchester Crown Court On 7 March 2008, convicted the appellant of theft of a shotgun, acquiring a shotgun without a certificate, and driving while disqualified; it imposed six years’ imprisonment for theft, with concurrent sentences on the remaining counts.