Laing & Anor, R.

An identification procedure under Code D is required only where a witness expresses an ability to identify the suspect or there is a reasonable chance that the witness can do so. Limited descriptions alone do not establish that condition.

Recognition from CCTV remains admissible subject to safeguards. Turnbull directions must be adapted to the medium and should address the quality of the images, the witness’s opportunity for recognition, the risk of honest error and any contextual bias. Where the evidence permits a reliable recognition and exculpatory evidence is equivocal, its weight is for the jury.

A failure to hold an identification procedure may affect the reliability of another identification. Its effect depends on whether the defendant has in fact lost a meaningful opportunity to challenge that evidence.

Laing and Loughman were convicted at Manchester Crown Court of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861. The prosecution case was that three men attacked the victim in a shop and left in a Chrysler car.

Laing challenged a police officer’s recognition of him from street CCTV. He contended that the police should have held a VIPER procedure with the victim, that the identification evidence should have been excluded, and that the judge’s directions and rulings rendered his conviction unsafe. Loughman, who admitted being present, challenged evidence linking him to the car and aspects of the summing-up concerning his alleged participation.

The central issues were whether there had been a breach of Code D, whether the CCTV recognition was properly left to the jury, and whether any alleged errors affected the safety of either conviction.

1. Laing’s appeal was dismissed. Code D paragraph 3.12 had not been breached. The victim had never claimed to have seen the attackers’ faces and told the officer that he could make no identification. There was therefore neither an expressed ability nor a reasonable chance that he could identify a suspect.

2. In any event, Laing had not lost a meaningful opportunity to challenge the police officer’s CCTV recognition. The victim gave evidence and said that Laing was not one of the attackers. The jury could assess whether that assertion was a reliable exculpation or reflected the victim’s inability to see the attacker’s face.

3. The CCTV recognition was properly left to the jury. Recognition evidence of this kind is admissible with safeguards, as explained in Attorney General’s Reference No two of 2002 [2002] EWCA Crim 2373. The directions required by Turnbull (1977) QB 224 had to be adapted to recognition from CCTV. Although the judge should expressly have addressed whether the film afforded a sufficient opportunity for reliable recognition, the omission did not render the verdict unsafe. The jury had repeatedly seen the footage, heard submissions on its quality, and had been warned of the risk of an honest mistaken recognition and of contextual bias.

4. The court distinguished Forbes [2000] UKHL 66 and Gojra [2010] EWCA Crim. 1939. The usual direction concerning a Code D breach did not automatically apply where the witness made no identification and was available to give the exculpatory evidence which a procedure might have produced. Even assuming a breach, neither the restriction on cross-examination nor the absence of an adapted Forbes direction affected the verdict’s safety.

5. The remaining criticisms of the summing-up, including the imperfect wording concerning silence and an inappropriate observation about Loughman’s failure to identify the driver, did not undermine Laing’s conviction when the directions were read as a whole.

6. Loughman’s renewed application for leave to appeal was refused. The evidence of association with the Chrysler was properly admitted and was not unfairly prejudicial. The jury had been adequately directed on the sole live issue in his case: whether he participated in the attack.

• Court of Appeal (Criminal Division) — In [2013] EWCA Crim 1836, Laing’s appeal against conviction was dismissed and Loughman’s renewed application for leave to appeal was refused.

• Manchester Crown Court — On 11 July 2012, both defendants were convicted of causing grievous bodily harm with intent. On 30 November 2012, each received an extended sentence of 12 years, comprising seven years’ custody and a five-year extended licence period.