Isaac

Under section 78(1) of the Police and Criminal Evidence Act 1984, the court must consider both the circumstances in which prosecution evidence was obtained and the effect of admitting it on the fairness of the proceedings. A second identification procedure is not automatically unfair merely because an earlier procedure was unsuccessful. It may fairly be held where there is a proper basis to use images that better reflect the suspect’s appearance at the time of the offence. Where the jury can examine reliable recordings and records of both procedures, and receives an appropriate warning about identification evidence, a risk that a witness may recognise an image from the earlier procedure ordinarily concerns the weight of the identification rather than its admissibility.

The appellant and his co-defendant were convicted unanimously at the Crown Court at Chelmsford of applying a corrosive fluid with the requisite intent, contrary to section 29 of the Offences against the Person Act 1861. The prosecution alleged that they had carried out an acid attack on Wayne Ingold after mistaking him for another person.

The appellant appealed against conviction. His sole ground challenged the admission of identifications made in February 2015. The witnesses had failed to identify him in a November 2014 procedure using short-haired images, but later selected images showing him with long hair. The issue was whether the second procedure, and the consequent risk of recognition from the first procedure, made admission of the identification evidence unfair under section 78(1) of the Police and Criminal Evidence Act 1984.

Appeal dismissed. The court held that the conviction was safe.

1. Section 78(1) of the Police and Criminal Evidence Act 1984 required consideration of the circumstances in which the identification evidence was obtained and whether its admission would adversely affect the fairness of the proceedings so that it ought to be excluded.

2. The court did not accept that police may simply repeat an identification procedure because the first has not produced the desired result. However, the February procedure had a proper basis. The police had an earlier image showing the appellant with dreadlocks, which better represented his appearance at the time of the attack, and they had a proper basis for concluding that he had changed his appearance to thwart identification. The manner in which the February evidence was obtained was therefore not unfair.

3. The defence concern that the witnesses may have recognised the appellant from the November procedure, rather than from the attack, did not require exclusion. It was a real point of comment, but was capable of being assessed by the jury. The jury had recordings and transcripts of both procedures, could observe the witnesses’ reservations, and was carefully directed on the weaknesses and dangers of identification evidence.

4. The identification evidence formed part of a strong prosecution case supported by other strands of evidence. There was no basis to conclude that its admission rendered the trial unfair or the resulting conviction unsafe.

• Court of Appeal (Criminal Division): In [2016] EWCA Crim 1907, dismissed the appellant’s appeal against conviction.
• Crown Court at Chelmsford: On 8 October 2015, convicted the appellant unanimously of applying a corrosive fluid with intent, contrary to section 29 of the Offences against the Person Act 1861. On 6 November 2015, sentenced him to ten years’ detention in a young offender institution.