Ross Grier v Director of Public Prosecutions (DPP)

Code D does not require an identification procedure merely because a suspect is known and named. The obligation arises when the suspect disputes identity, expressly or by conduct inferred from the circumstances. The timing and nature of any dispute are fact-sensitive, and the exceptions in Code D may make a later procedure purposeless. Section 78 of the Police and Criminal Evidence Act 1984 does not confer a true discretion to admit evidence which would make a trial unfair. Nevertheless, an appellate court should not lightly interfere with the trial judge’s evaluative assessment. A breach would not automatically require exclusion: the court must assess all the circumstances, including the quality of the identification evidence, corroboration and the opportunity to challenge it.

The appellant was convicted in the magistrates’ court of driving without due care and attention and failing to stop for a police officer. The prosecution relied on identification evidence from PC Price, who had observed the driver briefly at a petrol station and identified the appellant when he attended a police station the following day. No Code D identification procedure was held.

The appellant appealed by way of case stated. The questions were whether Code D had been breached and, if so, whether the identification evidence should have been excluded under section 78 of the Police and Criminal Evidence Act 1984. The appeal also raised late filing, which the court did not need to determine.

1. Appeal dismissed. The court held that Code D did not require an identification procedure merely because the appellant was a known suspect. Paragraph 3.12 concerns cases in which the suspect disputes being the person seen by the eye-witness. That dispute may be express or inferred from conduct, but it is a fact-sensitive question.
2. No breach before arrest or interview. Nothing indicated that the appellant disputed being the driver before PC Price identified and arrested him. The appellant made no such dispute during interview, although he had opportunities to do so. A suspect has no legal duty to answer police questions, but the absence of answers remained relevant to whether Code D was engaged.
3. No useful later procedure. Once identity was disputed at the magistrates’ court hearing, a procedure would have served no useful purpose. PC Price had already spent substantial time with the appellant and would inevitably have confirmed his earlier identification. The position was materially different from that in Gojra.
4. Section 78 alternative. Even if Code D had been breached, the admission of the evidence would not have been unfair in the statutory sense. The identification evidence did not stand alone. It was supported by the appellant’s insurance of, and efforts to retrieve, the vehicle, and he neither challenged PC Price’s evidence nor gave an alternative account. The late completion of PC Price’s notes did not necessarily taint the earlier identification.
5. The appellate court’s task was to apply the high threshold governing review of an evaluative decision under section 78. The District Judge’s decision was not one which no reasonable judge could have reached.

• High Court (Administrative Court): The appeal by way of case stated was dismissed.
• Magistrates’ Court: District Judge Verghis convicted the appellant and refused to exclude PC Price’s identification evidence under section 78 of the Police and Criminal Evidence Act 1984.