Phillips, R. v

An identification is not inadmissible hearsay merely because the witness learned the suspect’s surname from others. The relevant question is whether the witness’s assertion that the accused was the assailant rests on the witness’s own observation and recognition. Where the witness has always been clear about the person seen, later attribution of that person’s surname is distinct from the identification itself.

In any event, reputation evidence as to identity falls within the preserved common-law exception to hearsay under Criminal Justice Act 2003. Careful consideration should nevertheless be given during investigation to whether an identification parade is appropriate.

The appellant was convicted by court-martial of assault occasioning actual bodily harm. The prosecution alleged that he was one of two men who entered a barrack hut at night and assaulted the complainant while he lay in bed.

The appellant denied being present at the assault. A witness, Benjamaa, identified him as an assailant but had not known his surname at the time of the incident. He knew the man by the nickname “Scouse”, his Liverpool accent and his membership of the Support Weapons Flight.

On appeal, the appellant contended that Benjamaa’s identification was inadmissible hearsay because the witness learned the appellant’s surname from others. The central issue was whether the source of the surname rendered the witness’s identification hearsay.

1. Appeal dismissed. Benjamaa’s evidence was admissible. His identification of the appellant rested upon his own observation and recognition of the person he had seen repeatedly during the exercise, rather than upon an assertion made by another person.

2. The fact that Benjamaa did not know the recognised man’s surname until after the assault did not make the identification hearsay. The surname was merely a label attributed to the person whom the witness had independently identified as “Scouse” from the Support Weapons Flight.

3. Any hearsay element was confined to the attribution of the surname. Reputation evidence as to identity was a common-law exception to hearsay and was preserved by section 118(1), rule 3(c), of the Criminal Justice Act 2003. The court added that, if that exception had not applied, section 114(1)(d) would plainly have permitted admission on these facts.

4. The proposed defence case itself confirmed that identification, rather than hearsay, was the real issue: it accepted that Benjamaa had seen the appellant in the hut but alleged that this occurred two hours earlier on an innocent errand. The board was entitled to resolve that factual dispute in favour of the prosecution.

5. The court therefore did not need to decide whether the other identification evidence independently rendered the conviction safe. It observed prospectively that investigators should carefully consider whether an identification parade is appropriate.

• Court of Appeal (Criminal Division): dismissed the appeal against the court-martial conviction for assault occasioning actual bodily harm.
• Court-martial: convicted the appellant; the citation of that decision was not stated in the judgment.