Thomas Bracher v Crown Prosecution Service

Whether evidence is recognition evidence or hearsay is a matter of fact and degree. Social media may provide hearsay material, and careful analysis is required to establish the true basis of an alleged recognition. Where the source material is unavailable, the court may be unable to assess whether the evidence is genuine recognition or repetition of hearsay.

The hearsay safety valve in section 114 of the Criminal Justice Act 2003 is not a general supplement to the statutory gateways. An identification procedure is required where there is a reasonable anticipation that identity is in dispute; a positive assertion by the suspect is unnecessary. Admission of identification evidence may be unfair under section 78 of the Police and Criminal Evidence Act 1984.

Thomas Bracher appealed by way of case stated against his conviction at Birmingham Magistrates’ Court for assault occasioning actual bodily harm. The prosecution relied principally on the complainant’s evidence that he recognised Mr Bracher from social media, knowledge of his association with the complainant’s former girlfriend, and one prior sighting at a nightclub.

The District Judge treated the evidence as recognition evidence rather than hearsay and admitted it. No police identification procedure had been conducted. The appeal concerned whether the evidence was hearsay, whether it could have been admitted under section 114 of the Criminal Justice Act 2003, and whether fairness required exclusion under section 78 of the Police and Criminal Evidence Act 1984.

1. Appeal allowed. The first question in the stated case was answered in the negative and the second in the affirmative.
2. Whether evidence has crossed the boundary from hearsay to recognition is a matter of fact and degree. Social media assertions and the identification of a photograph on social media may themselves be hearsay. The court must examine the actual basis on which the witness claims to recognise the defendant.
3. The District Judge had insufficient evidence to determine the basis of the complainant’s alleged recognition. The prosecution had not produced the social media material relied upon. The District Judge therefore erred in treating the evidence as recognition rather than hearsay.
4. Section 114(1) of the Criminal Justice Act 2003 is a hearsay safety valve. It applies where no other gateway is available and the interests of justice nevertheless require admission. Applying the section 114(2) factors, the evidence had substantial probative value and importance, but its circumstances and reliability were uncertain, the source material could have been produced, the defence could not effectively challenge it, and prejudice to the defendant was considerable. It was therefore most unlikely that section 114 would have admitted the evidence.
5. Under the PACE codes of practice, an identification procedure is required where there is a reasonable anticipation that identity is in dispute. A positive assertion by the suspect is not necessary. The police questioning showed that whether the complainant and defendant knew each other might be relevant, so an identification procedure should have been instituted.
6. In those circumstances, admission of the evidence was unfair and it should have been excluded under section 78 of the Police and Criminal Evidence Act 1984. The appeal accordingly succeeded.

• High Court (Administrative Court): Appeal by case stated allowed against the conviction entered by Birmingham Magistrates’ Court on 19 January 2023.