Cole v R

A breach of Code D caused by failing to disclose a witness’s initial description before an identification parade does not automatically require exclusion of the resulting identification evidence under section 78 of the Police and Criminal Evidence Act 1984. The fairness and safety of the conviction must be assessed in the context of the whole case.

An eyewitness identification must be assessed with all evidence capable of supporting or undermining its reliability. It must not be artificially separated from relevant circumstantial evidence. Fresh evidence admitted on appeal must likewise be evaluated as part of the whole evidential picture when deciding whether a conviction is unsafe.

Cole v R concerned convictions at Preston Crown Court in March 1998 for murder and wounding with intent. The appellant was identified at an identification parade by Mrs Ellis as the man who attacked the wounded complainant near a public house.

Following a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, the appellant challenged the safety of his convictions. His principal reliance was on M8, a police note of Mrs Ellis’s first telephone description. M8 had not been disclosed before the parade, although it was disclosed before trial and trial counsel deliberately chose not to use it.

The central issues were whether the parade and identification evidence should be excluded, whether M8 undermined the identification, and whether the jury could assess that identification alongside the remaining circumstantial evidence.

1. Appeal dismissed. The court admitted M8 under section 23 of the Criminal Appeal Act 1968, but held, after considering it with all the trial evidence, that it did not render the convictions unsafe.
2. Under paragraph D2.3 of Code D, an identification parade was mandatory where the relevant conditions were met and could otherwise be arranged if useful. Given the fatal street attack, the several eyewitnesses, the appellant’s presence near the scene with the principal protagonists, and his denial of involvement, arranging a parade was not merely proper but would ordinarily have been essential. The court also considered that, on the facts identified in Forbes [2001] 1 Cr. App. R 31, the police would have been obliged to hold one.
3. There had nevertheless been a clear breach of Code D because the appellant’s solicitor was not told of M8 before Mrs Ellis viewed the parade. A section 78 application based on that breach alone would have failed. It was unrealistic to suppose that informed advice would have led the appellant to reject a properly conducted parade while accepting the greater risks of less protective identification procedures. The passage of time also did not justify excluding the parade result because different advice might conceivably have been given.
4. Trial counsel’s decision not to deploy M8 was a reasonable forensic choice. Its discrepancies might have assisted the defence, but use of the document would also have enabled the Crown to emphasise that Mrs Ellis had deliberately concentrated on the assailant’s face in order to recognise him later.
5. The jury was entitled to assess the reliability of the identification with, rather than separately from, the circumstantial evidence. The appellant’s proximity to the attack, his communications with others involved, his repeated lies about being in Preston, and the unexplained absence of his clothing strongly supported the identification. The adverse-inference direction arising from his decision not to testify was justified and fair.

• Court of Appeal (Criminal Division): In Cole v R [2013] EWCA Crim 1149, the court admitted M8 as fresh evidence and dismissed the appeal against conviction following the Criminal Cases Review Commission reference.
• Court of Appeal (Criminal Division): An earlier renewed application for leave to appeal against conviction was refused in February 1999.
• Preston Crown Court: In March 1998, the appellant was convicted by unanimous jury verdicts of murder and wounding with intent.