Day, R v

In a video identification procedure, once images have been selected to resemble the suspect, non-permanent clothing or accessories may be included or removed to match the offender’s description. That choice may affect the weight of an identification, but does not by itself make the procedure unfair.

For bad-character evidence under the Criminal Justice Act 2003, a single and historic conviction may establish relevant propensity where its circumstances, assessed cumulatively, show a very special and distinctive feature. Striking similarity is not invariably required. The court must also assess probative value and fairness, including whether the evidence merely bolsters a weak case.

The appellant was convicted at Northampton Crown Court of kidnapping and committing an offence with intent to commit a sexual offence against a 13-year-old girl. Identification was the principal issue at trial.

The prosecution relied on the complainant’s identification of the appellant in a video identification procedure, his use of a distinctive vehicle near the scene, and a 1996 rape conviction admitted as bad-character evidence. The appellant denied the offences and maintained an alibi.

He appealed against conviction, challenging the refusal to exclude the video identification under section 78 of the Police and Criminal Evidence Act 1984 and the admission of the earlier conviction. The central issues were whether either ruling rendered the convictions unsafe.

1. Appeal dismissed. Neither the video identification evidence nor the bad-character evidence rendered the convictions unsafe.

2. The court held that the identification officer had correctly used images of the appellant and comparison volunteers without spectacles. The officer’s primary task was to select images resembling the suspect in age and general appearance. Once that was done, a non-permanent accessory could properly be included or removed to reflect the witness’s description of the offender. The appellant’s habitual use of glasses could affect the weight of the identification, but did not make the procedure unfair.

3. The complainant’s father should preferably not have intervened during the procedure. His remark did not undermine its fairness, however. Before he spoke, the complainant had already selected the appellant’s image for further viewing. She then identified facial features other than the scab which she had initially recalled.

4. The trial judge correctly applied the approach in Hanson [2005] EWCA Crim 824. In the absence of evidence of a continuing propensity, the admissibility of a single conviction from many years earlier depended on whether its facts disclosed a very special and distinctive feature. Consistently with M [2006] EWCA Crim 3408, this did not require striking similarity in every case.

5. The four similarities between the 1996 rape and the charged offending had to be considered cumulatively: attack in a semi-secluded public place, seizure by the neck, significant force in an attempted removal to another place, and an immediate apology. Despite material differences and the long interval, those features were sufficiently special and distinctive to make the conviction capable of proving relevant propensity. The jury could then decide whether propensity was established.

6. The evidence had substantial probative force. It did not improperly bolster a weak case or prevent the jury from fairly assessing the other evidence. The judge was entitled to admit it and to reject exclusion on fairness grounds.

• Court of Appeal (Criminal Division): appeal against conviction dismissed.
• Crown Court at Northampton: the appellant was convicted of kidnapping and committing an offence with intent to commit a sexual offence, and received concurrent extended determinate sentences with an eight-year custodial term and an eight-year extension period.