LT, R. v

Under Police and Criminal Evidence Act 1984, section 78 excludes prosecution evidence only where its admission would adversely affect the fairness of proceedings so that it ought not be admitted. Defects in a social-media identification procedure ordinarily concern the evidence’s reliability and weight, which the jury can assess, rather than admissibility.

A single image and an unknown third party’s prior research do not of themselves make an identification unfair. The critical question is whether there is a proper evidential basis for contamination or unfairness. Where the witness recognised the suspect before any suggestive information was conveyed, and can be cross-examined about the circumstances, the identification should generally be admitted.

The prosecution sought leave under Part 9 of the Criminal Justice Act 2003 to appeal a Crown Court ruling excluding identification evidence under section 78 of the Police and Criminal Evidence Act 1984.

The defendant denied possessing an imitation firearm with intent to cause fear of violence. The complainant had identified him after being shown a single Facebook image by a third party, and later made a positive VIPER identification. The third party would not provide a statement and the basis on which he had located the image was unknown.

The judge excluded both identifications, holding that there was a significant risk that the initial identification had been influenced by the third party and that the absence of other evidence made exclusion necessary. The central issue was whether those circumstances made admission unfair under section 78.

1. The prosecution appeal was allowed. The exclusion of the identification evidence involved an error of principle and produced a decision that was not reasonable for the Crown Court judge to make. The Court ordered the resumption of proceedings in the Crown Court.

2. Section 78 of the Police and Criminal Evidence Act 1984 confers a broad discretion, or judgment, which the Court of Appeal will ordinarily be slow to disturb. The question is whether admission would so adversely affect fairness that the evidence ought not be admitted.

3. There was no proper evidential basis for finding a very significant risk that the complainant’s identification had been contaminated. He recognised the defendant immediately on seeing the image, before the third party said that he had undertaken any research. The third party did not disclose what had led him to the image. That unknown background neither bore on admissibility nor constituted hearsay.

4. The deficiencies in the Facebook process were matters for cross-examination and for the jury’s assessment of reliability and weight. McCullough [2011] EWCA Crim 1413 and Alexander & McGill [2012] EWCA Crim 2768 supported that approach. A Facebook identification is permissible, although the jury should receive as much material as possible about how it was made and may require an appropriate warning where the circumstances justify one.

5. Here, the image was available for the jury, the complainant could identify the relevant Facebook account and explain how the image was shown to him, and he could be cross-examined fully. The fact that the prosecution’s case largely depended on the identification did not make its admission unfair.

• Court of Appeal (Criminal Division): The prosecution’s appeal under Part 9 of the Criminal Justice Act 2003 was allowed. The Court held that the exclusion ruling was affected by an error of principle and was unreasonable, and ordered a resumption of proceedings.

• Crown Court at Basildon: Her Honour Judge Leigh excluded the complainant’s initial Facebook identification and later VIPER identification under section 78 of the Police and Criminal Evidence Act 1984.