Parvez, R v

Where a witness retracts an earlier out-of-court identification, the trial judge must consider the statutory safety safeguard in section 125 of the Criminal Justice Act 2003. The case should remain with the jury if the prosecution explanation for the retraction, considered with supporting evidence, could safely be accepted by a properly directed jury.

Under section 114, an earlier statement by a hostile witness may be evidence of its truth despite its retraction. The jury must assess the circumstances and content of the statement with particular care. If they are not sure that the earlier identification was truthful and reliable, they must acquit where the remaining evidence cannot independently prove guilt.

The appellant was convicted at Preston Crown Court of attempted murder and possessing a firearm with intent. The prosecution alleged that he shot the victim after an earlier attack on his friend.

The victim initially said that he could not identify any assailant, but later made an account identifying the appellant. He subsequently retracted that account and maintained the retraction in evidence. The prosecution relied on the earlier account, with telephone, vehicle and other evidence said to support it.

On appeal, the appellant contended that the case should have been withdrawn under the Criminal Justice Act 2003 and that the jury had been misdirected about the retracted identification.

1. Appeal dismissed. The trial judge was entitled to leave the case to the jury. Section 125 of the Criminal Justice Act 2003 did not impose a higher threshold than the established sufficiency test. It supplied an additional statutory safeguard where the prosecution case depended wholly or partly on an out-of-court statement.
2. The judge had to ask whether, given the importance of the retracted identification, the statement was so unconvincing that a conviction would be unsafe. Here, the prosecution explanation was that the witness had retracted his identification through fear. That explanation, together with evidence capable of supporting the earlier account, could properly be assessed by the jury. Withdrawal was therefore not required.
3. Section 114 of the Criminal Justice Act 2003 had changed the former approach to hostile witnesses. An earlier statement may be evidence of its truth even though the witness retracts it in court. The decisive question is whether the jury, exercising caution, are sure that the earlier account was accurate, reliable and truthful.
4. The summing-up adequately directed the jury to confront the irreconcilable accounts and to treat the witness with great care. It made clear that, unless they were sure of the identification, the prosecution case against the appellant failed because the telephone, vehicle and other evidence could support an identification but could not independently found a conviction.
5. The judge was not required to use the earlier Crown Court guidance suggested by the appellant. The critical issue was not the degree of inconsistency, which was undisputed, but whether fear explained the retraction and whether the earlier identification could safely be accepted.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction: [2010] EWCA Crim 3229.
• Preston Crown Court — convicted the appellant on 19 November 2008 of attempted murder and possessing a firearm with intent.