Gojra & Anor, R v

Where Code D3.12 requires an identification procedure, the police must provide it. The absence of a procedure is not merely the loss of a desirable safeguard. A jury must receive clear directions about the Code’s protection and the possible prejudice caused by its breach.

Under section 78 of the Police and Criminal Evidence Act 1984, identification evidence need not be excluded where the procedure was properly conducted and the alleged unfairness is speculative. Fresh, credible and admissible evidence may render a conviction unsafe where there is a reasonable explanation for its absence at trial and the jury might have derived assistance from it.

Gojra and Dhir were convicted at Snaresbrook Crown Court of assaults occasioning actual bodily harm, false imprisonment and kidnap arising from the detention, assault and forced transportation of two brothers after a financial dispute. Gojra was sentenced to seven years’ imprisonment. Dhir received concurrent sentences of seven years’ imprisonment.

Gojra challenged, among other matters, the handling of identification evidence and the judge’s directions following the failure to invite one complainant to an identification procedure. Dhir relied on fresh evidence from a witness who said that she had seen him being forced towards a van. The central issues were whether the defects made Gojra’s conviction unsafe and whether the fresh evidence made Dhir’s conviction unsafe.

1. The appeals were allowed and both appellants’ convictions were quashed as unsafe.

2. Gojra’s challenge under section 78 of the Police and Criminal Evidence Act 1984 failed. The trial judge was entitled to find no unfairness in admitting Mohammed’s identification evidence. The identification procedure itself was unimpeachable, and the suggestion that the investigating officer had supplied Gojra’s name before it was speculative. The separate submission that the case should have been withdrawn under the identification principles also failed. The identification evidence was sufficient to leave to the jury and was supported by substantial telephone and CCTV evidence.

3. The decisive defect in Gojra’s case was the failure to invite Haq to an identification procedure. Code D3.12 imposed a positive obligation to hold one. Identity had been clearly in issue before service of the defence statement, and the police could not treat a single positive identification as making another procedure unnecessary.

   The judge misdirected the jury by describing a procedure for Haq as merely desirable. The jury should instead have received a full direction in accordance with R v Forbes (2001)1 A.C 473, HL, explaining the statutory safeguard, the breach and the possible prejudice caused by losing the opportunity to test the witness’s identification. That guidance might have affected the verdict.

4. Dhir’s fresh evidence was capable of belief, admissible and supported his account that he had been forced into the van. Its absence at trial had a reasonable explanation. Applying the Pendleton/Dias impact test, the court could not exclude the possibility that the jury would have derived assistance from it. His convictions were therefore unsafe.

• Court of Appeal (Criminal Division): Gojra’s appeal against conviction was allowed. Dhir was granted leave to appeal, his appeal was allowed, and both appellants’ convictions were quashed as unsafe.
• Crown Court at Snaresbrook: Before His Honour Judge Freeland QC, Gojra and Dhir were convicted on 24 April 2009 of assault occasioning actual bodily harm, false imprisonment and kidnap. On 19 June 2009 each received concurrent sentences producing a total of seven years’ imprisonment.