Alam, R v

A trial judge’s decision whether to exclude identification evidence under section 78 of PACE 1984 attracts a broad discretion. The Court of Appeal will ordinarily not interfere where the judge considered relevant matters, applied no erroneous principle, and reached a decision within the legitimate range. The ultimate question on an appeal against conviction remains whether the conviction is unsafe.

Identification evidence which has identifiable weaknesses, including a risk of contamination, may remain admissible where those weaknesses did not arise from police conduct and are fairly left to the jury under clear directions. A submission of no case to answer may properly be rejected where identification evidence is supported by DNA and other evidence capable of linking the defendant to the offence.

The appellant was convicted at Stafford Crown Court of robbery and sentenced to fourteen years and six months’ imprisonment. The prosecution relied on the complainant’s VIPER identification, DNA matching the appellant on a cigarette filter found in the complainant’s house, a BB gun found at his home, and other circumstantial evidence.

Before trial, the complainant had seen photographs of the appellant. The Recorder refused to exclude her later VIPER identification under section 78 of PACE 1984, despite breaches of Code D concerning the recording and service of her initial descriptions. She also rejected a submission of no case to answer. The appeal challenged both rulings and contended that the resulting conviction was unsafe.

1. Appeal dismissed. The conviction was safe.

2. The court held that the Recorder was entitled to admit the VIPER identification under section 78 of PACE 1984. An appellate court will generally not interfere with such a ruling where the trial judge has considered relevant matters, excluded irrelevant ones, made no error of principle, and reached a decision within the broad range of legitimate outcomes.

3. The identification had weaknesses. The complainant had limited opportunity to see the robbers, had seen photographs before the VIPER procedure, and there was a real risk of contamination. Those matters nonetheless did not arise from police action or omission. They went to reliability and could fairly be addressed by cross-examination and emphatic jury directions. The Recorder had given such directions.

4. McCann & Others (1991) 92 Cr App R 239 did not supply a different standard for reviewing the section 78 ruling. The cited passage concerned an unusual application to discharge a jury after extraneous publicity during the trial, rather than the exercise of discretion under section 78.

5. The Recorder also correctly left the case to the jury. The appellant’s DNA on a cigarette filter in the victim’s home was an important and potentially powerful link to the robbery. The defence was entitled to advance possible transfer or cross-contamination, but that possibility did not prevent the evidence, taken with the identification and other supporting material, from being considered by the jury.

6. The ultimate appellate test under section 2 of the Criminal Appeal Act 1968 was whether the conviction was unsafe. It was not.

• Court of Appeal (Criminal Division)—Dismissed the appeal and upheld the conviction as safe: [2019] EWCA Crim 146.

• Crown Court at Stafford—The appellant was convicted of robbery before Miss Recorder Herbert on 29 January 2018 and sentenced to fourteen years and six months’ imprisonment.