R v DS

A police officer’s later recognition of a person in an image does not fall within the recognition procedure in Code D where the officer was not asked to identify a known suspect, but independently searched for an image remembered after an unrelated encounter. Concerns about missing contemporaneous material and image quality do not require exclusion where the circumstances of the recognition are recorded and can be tested before the jury.

Identification evidence should be left to the jury where it was not based on a fleeting glimpse and is not so weak, vague or inconsistent that a properly directed jury could not convict.

R v DS concerned an appeal against a conviction for robbery at the Crown Court at Croydon. The prosecution relied principally on the identification of the appellant by the cleaner present during the robbery and on a police officer’s recognition of him in a newspaper image taken from CCTV footage.

The trial judge admitted the officer’s evidence after refusing an application under section 78 of the Police and Criminal Evidence Act 1984. She also rejected a submission of no case to answer. The appellant contended that the officer’s recognition breached Code D and that the identification evidence was too weak to leave to the jury.

1. Appeal dismissed. The trial judge was entitled to admit the recognition evidence and to leave the case to the jury.

2. Code D did not govern the officer’s recognition. He had spent time with the appellant for unrelated reasons, recalled seeing him in connection with an earlier crime, and searched for the remembered image. He was not asked to look at an image and identify a person already known to be a suspect. At that stage there was no suspect linked by the investigating officers to the robbery.

3. The court added, obiter, that Code D was drafted before the present widespread use of CCTV and could repay reconsideration. On the facts, however, the officer’s statement recorded how, when and where he made the recognition, and that he was alone. Those matters could be tested in cross-examination.

4. Whether or not Code D applied, the missing email and uncertainty about the image viewed by the officer did not compel exclusion under section 78 of the Police and Criminal Evidence Act 1984. The judge was entitled to conclude that admission would not cause unfair prejudice to the appellant.

5. The identification evidence was properly left to the jury. The cleaner had a good opportunity to observe the appellant during the robbery; this was not a fleeting glimpse within the R v Turnbull principle, [1977] QB 224. Nor was the evidence so inherently weak, vague or inconsistent that a properly directed jury could not convict within Galbraith, 73 Cr App R 124. The judge’s full warnings on identification, recognition and the witness’s stated degree of confidence preserved the issues for the jury’s assessment.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed.

• Crown Court at Croydon: The appellant was convicted unanimously of robbery on 21 June 2013 and sentenced on 19 February 2014.