Crampton, R. v

A breach of Code D does not of itself require exclusion of identification evidence under section 78 of the Police and Criminal Evidence Act 1984. Admissibility depends upon a fact-specific balancing exercise, including the nature of the breach, the available safeguards, the other evidence, and whether clear jury directions can address the risks.

Identification from social media before police involvement is not automatically inadmissible merely because a subsequent formal identification procedure was not held. Where the trial judge has carefully assessed the evidence and its weaknesses, an appellate court will be slow to interfere with that evaluative judgment. A conviction will not be quashed for lurking doubt without reasoned analysis showing that the evidence or trial process makes it unsafe.

The appellant was convicted at Nottingham Crown Court of indecent assault contrary to section 14 of the Sexual Offences Act 1956. The historic allegation was not disputed; the issue at trial was whether the appellant had been correctly identified as the perpetrator.

The complainant and her mother identified the appellant from a Facebook photograph before the police investigation. The police did not arrange a VIPER procedure for either of them. The trial judge held that this breached Code D, but admitted the Facebook evidence under section 78 of the Police and Criminal Evidence Act 1984, treating its reliability as a matter for a properly directed jury in light of other identification evidence.

The appeal challenged that ruling and contended that the conviction was unsafe.

1. Appeal dismissed. The court held that the conviction was safe.
2. The conceded breach of Code D did not automatically require exclusion of the Facebook identifications. Under section 78 of the Police and Criminal Evidence Act 1984, exclusion was a case-specific evaluative judgment for the trial judge. The Court of Appeal would ordinarily be slow to interfere with that judgment: see LT [2019] EWCA Crim 58.
3. The judge had correctly identified both the risks of uncontrolled social-media identification and the lost safeguards of a formal procedure. A later VIPER might have had forensic value, including the possibility that a witness selected nobody or a volunteer. Yet, because the complainant and her mother had already seen the appellant on Facebook, a later identification could also have reflected confirmation bias rather than an independent recognition.
4. The Facebook identifications occurred before police involvement. The court rejected any rule that they must always be excluded where no later corrective identification procedure was held. The judge was entitled to regard their probative weight as a matter for the jury, particularly because there was other inculpatory identification evidence and clear, fair directions about the evidence and its weaknesses.
5. The absence of a VIPER had not removed the protection of Code D. The judge had conducted the necessary balance between the breach, the evidence as a whole, and the capacity of directions to cure potential unfairness. The ruling was fact-specific and did not preclude a different result on different facts.
6. The court also applied the guidance in R v Pope [2012] EWCA Crim 2241. A jury conviction cannot be quashed merely on a judicial hunch or general lurking doubt. It requires reasoned analysis leading inexorably to the conclusion that the conviction is unsafe. No such basis existed here.

• Court of Appeal (Criminal Division): Dismissed the appeal and held that the conviction was safe.
• Nottingham Crown Court: The appellant was convicted of indecent assault and sentenced to a special custodial sentence under section 236A of the Criminal Justice Act 2003.