Yaryare & Ors v R.

In police recognition cases based on CCTV, the relevant safeguards in Code D should be followed. A contemporaneous record should capture material recognition events, including emerging similarities, significant features, doubts and matters indicating a mismatch. A failure to comply does not automatically require exclusion under Police and Criminal Evidence Act 1984, section 78, or make a conviction unsafe. The court must assess the seriousness of the breach, the ability to test the evidence, the quality of the images, the jury directions and any supporting evidence.

An attack through counsel suggesting that a witness was biased, dishonest or intent on securing a conviction is an attack on character under the Criminal Justice Act 2003. The defendant's bad character may then be admitted to assist the jury on the general credibility of that attack, subject to the statutory fairness safeguard.

Liban Yaryare, Khalid Hassan and Yahaya Osman appealed convictions imposed after a jury trial at Leicester Crown Court. The prosecution relied principally on DC Bee's recognition of the appellants from CCTV footage of a sequence of violent incidents, supported to differing degrees by imagery, telephone and association evidence.

The principal issues were whether DC Bee's evidence should have been excluded under section 78, whether the jury should have received a more specific direction concerning the absence of adequate recognition logs, and whether there was a case to answer against Yaryare and Hassan. Osman also challenged the admission of his bad character after his counsel cross-examined DC Bee about alleged bias, exaggeration and a desire to secure a conviction.

1. The appeals were dismissed. DC Bee's recognition evidence was prima facie admissible and did not fall to be excluded under section 78 of the Police and Criminal Evidence Act 1984. Although she had failed to comply with the relevant safeguards in Code D and the guidance in R v Smith and Others, the effect of such breaches depends on their extent, significance and resulting unfairness.

2. The court held that an officer repeatedly viewing CCTV need not record every passing thought. However, the officer should at least record the material or “Red Letter” events: when similarities with a particular person first emerge, the significant features noticed, doubts, and factors tending to show that the person does not match the suspect. The relevant parts of Code D should be followed so far as applicable, whether or not its direct application is technically engaged.

3. Here, the jury had the permanent CCTV images and stills seen by DC Bee. She gave detailed reasons for each recognition, the defence could test her evidence, and other evidence was available in each case. The absence of adequate contemporaneous records disadvantaged both the appellants and the jury, but did not make the proceedings unfair or the recognition evidence inherently poor.

4. The trial judge erred by failing to tell the jury that a sufficient log was legally required and by failing to correct DC Bee's contrary assertion. Nevertheless, the summing-up fairly identified the practical criticisms of her evidence. In the circumstances, including the quality of the images and supporting evidence, the omission did not render the convictions unsafe.

5. There was sufficient evidence for the cases against Yaryare and Hassan to go to the jury. The recognition evidence, imagery evidence and other circumstantial material provided a proper basis on which the jury could convict.

6. Osman's counsel had made a serious attack on DC Bee's honesty and integrity. Under the Criminal Justice Act 2003, that attack permitted the admission of Osman's bad character to assist the jury in assessing the general credibility of the allegations. The statutory fairness safeguard did not require exclusion, and the judge's limiting direction was correct.

• Court of Appeal (Criminal Division) — dismissed the appeals against conviction: [2020] EWCA Crim 1314.
• Crown Court at Leicester — convicted the appellants following a jury trial of offences arising from the violent incidents in Leicester on 30 April 2015.