Preddie, R. v

Where police have sufficient grounds to arrest a suspect, they should avoid a street identification and protect the witness from contamination. The first identification procedure should ordinarily take place at the police station under Code D.

A failure to record the witness’s prior description or the identification itself may be a serious breach of the Code. A subsequent video identification has no independent value where the witness has already seen the suspects in a flawed confrontation. The trial judge must give the jury a clear judicial direction on identification, the Code breaches and their possible prejudice to the defence.

The appellant was convicted by a jury at Isleworth Crown Court of robbery. The prosecution case against him depended on the complainant’s identification evidence.

Before a video identification procedure, police officers drove the complainant around the area. He saw two men being arrested and identified them as his attackers. The officers did not record that identification, although the complainant later selected both men in a video procedure. The appellant contended that the street identification breached Code D, tainted the video identification, and was wrongly admitted. He also challenged the adequacy of the Recorder’s directions to the jury.

1. Appeal allowed. The conviction was unsafe. The identification evidence should not have been admitted, and the summing-up contained serious further defects.

2. The police already had sufficient grounds to arrest the two suspects. The opening condition for a street identification under paragraph D.3.2 of Code D was therefore not satisfied. The proper course was to prevent the complainant from seeing the suspects and to conduct the first identification procedure at the police station.

3. There were further breaches of the Code. The police failed to make a contemporaneous record of the complainant’s description before asking him to identify the men, contrary to paragraphs D.3.1 and D.3.2(a). They also failed to record the street identification and its circumstances, contrary to paragraph D.3.2(e). There was no breach of paragraph D.3.2(b), since the circumstances made it unavoidable that the complainant would see the arrested men; that fact reinforced why the street procedure should not have occurred.

4. Applying the analysis in K v Director of Public Prosecutions, the Recorder should have excluded the street-identification evidence. The later video identification had no value because the complainant had already seen the suspects during the flawed street confrontation.

5. The Recorder also failed to give a proper Turnbull direction. It had to be given as the court’s direction of law, including the warning about the risk of mistaken identification. The jury should also have been told that the video evidence was of no significance and should have received clear guidance about the Code breaches and their possible prejudice to the defence, as required by R v Forbes [2001] 1 AC 473.

• Court of Appeal (Criminal Division) — conviction appeal allowed; the conviction was held unsafe: [2011] EWCA Crim 312.
• Isleworth Crown Court — the appellant was convicted by a unanimous jury verdict of robbery.