R v William Bogie

Breaches of Code of Practice D do not automatically require recognition evidence to be excluded. The court must assess the extent and significance of the breaches and any consequential unfairness. Relevant considerations include whether the recognising officers later provide a detailed explanation of the features relied on and whether the jury can examine the images or footage and make its own assessment. The evidence may remain admissible where it is not merely a bare assertion and the jury receives appropriate warnings about the dangers and weaknesses of recognition evidence. On appeal, the question is whether the conviction is safe. The appellate court will not interfere with the trial judge’s evaluative decision merely because it might have reached a different view.

The appellant was convicted in the Crown Court at Newcastle upon Tyne of robbery, possessing a bladed article and driving whilst disqualified. The prosecution case depended substantially on two police officers’ recognition of the appellant in petrol-station CCTV footage recorded several hours before the robbery. The officers had not complied with paragraphs D:3.35 and D:3.36 of Code of Practice D, including safeguards concerning independent viewing, prior information and contemporaneous recording. Some CCTV footage showing the person unmasked was also lost.

The trial judge admitted the recognition evidence and the CCTV stills under section 78 of the Police and Criminal Evidence Act 1984, rejected a submission of no case to answer, and directed the jury about the breaches and evidential weaknesses. The central issues were whether the recognition evidence and stills should have been excluded and whether the case should have been stopped before the jury.

1. Appeal dismissed. The convictions were safe. The trial judge had made a careful and thorough evaluative decision under section 78 of the Police and Criminal Evidence Act 1984, applying the correct principles.
2. The court’s task under section 78 is not strictly an exercise of discretion. If admission would have such an adverse effect on the fairness of the proceedings that the evidence ought not to be admitted, it cannot logically be admitted. On an appeal from the trial judge, however, the Court of Appeal should not interfere merely because it might have taken a different view. It must be satisfied that no reasonable judge, having heard the evidence, could have reached the decision made. The ultimate appellate question under section 2(1) of the Criminal Appeal Act 1968 is whether the conviction is safe.
3. Although the breaches of Code of Practice D were multiple and significant, exclusion was not required. The officers later gave evidence at the voir dire explaining the precise features which led to their recognition. Their evidence was therefore not a bare assertion. The jury could compare the officers’ account with the available still images, footage, custody photographs and the appellant himself. The judge also warned the jury about the breaches, the weaknesses in the evidence and the inherent dangers of identification and recognition evidence.
4. The loss of the unmasked footage did not make admission of the stills unfair. Applying the approach in R (Ebrahim) v Feltham Magistrates’ Court, the judge was entitled to conclude that the appellant had not suffered serious prejudice. The missing material created holes in the prosecution case which the defence could deploy before the jury.
5. The judge was also entitled, applying R v Galbraith, to refuse the submission of no case to answer. The strength of the recognition evidence depended on factual issues concerning reliability, which were for the jury after proper directions. The evidence was capable, on one possible view, of supporting a conviction.

• Crown Court at Newcastle upon Tyne: The appellant was convicted on 22 November 2022 and sentenced on 6 February 2023 by HHJ Bindloss to 78 months’ imprisonment, with concurrent sentences on the other counts and a driving disqualification order.
• Court of Appeal (Criminal Division): The appeal against conviction was dismissed on 3 November 2023. The court upheld the admission of the recognition evidence and CCTV stills and the refusal of the submission of no case to answer.