H, R (on the application of) v DPP

1. MR JUSTICE ELIAS: This is an appeal by way of case stated against the decision of the East Sussex Justices in respect of their adjudication as a Youth Court at Hastings on 26th July 2002, when they found the claimant guilty of the offence of Assault Occasioning Actual Bodily Harm contrary to section 47 of the Offences Against the Person Act.

2. The background to the case, briefly, is this: the claimant, a minor of 16 years, was charged with Assault Occasioning Actual Bodily Harm upon AS, who was aged 15 years. The claimant was charged together with another girl. The Crown submitted that the claimant and the co-accused were at St Leonards-on-Sea railway station on the evening of 12th February 2002, and that they shouted at the victim. It is said that the two accused caught up with the victim and asked why she had called the police the last time she had been beaten up. They then assaulted her, punching her, pulling her hair and kicking her. The assault lasted for approximately seven minutes. They then left and the victim called the police.

3. The claimant denied any involvement in the attack. She said that she was not present and that the victim's identification was mistaken.

4. When the case came to the Magistrates' Court, evidence was given by the victim. At the end of the prosecution case, the defence submitted that as a consequence of the fact that there had been no identity parade, the evidence on identity should not be admitted. It was said that there was a breach of the code of practice relating to the question of identification evidence in failing to hold a parade in the circumstances of this case. It was further submitted that the court should conclude, in the circumstances, that there was no case to answer. The magistrates held that the evidence should be admitted, and rejected the submission of no case to answer. At the end of the trial, they found the defendant guilty as charged.

5. The findings of the magistrates were set out in the case stated at paragraph 2. They say this:

"Upon the evidence we found the following facts:

"(a)An assault did take place upon AS.

"(b)H [that is the appellant] was well known to AS. AS had known H for 18 months.

"(c)AS correctly identified her assailants. She was specific about her injuries and what had happened to her, we found her to be a credible witness.

"(d)H's evidence was imprecise and consisted only of denials. She was evasive and we did not find her to be a credible witness.

"(e)The incident lasted 7 minutes and AS could describe the conversation.

"(f)Both girls knew the same people - they were mentioned by name and in context."

6. The justices also give a short statement of the relevant evidence that was before them. They then dealt with the question of the application that had been made at half time in the trial. They were directed that they should consider whether there had been a breach of the Code and if so, whether the identification evidence should be excluded under section 78 of the 1984 Act (the Police and Criminal Evidence Act, 1984). They referred in terms to the well known case of R v Forbes , [2001] AC 473, where the House of Lords considered the whole question of identity parades. I will have to return to that case in a moment.

7. They took the view that the officer in this case was entitled, in the circumstances, not to hold an identity parade. They held that it would have been futile for him to do so since this was a case where the girls knew each other and the victim would in the normal way be able to recognise the defendant.

8. They summarised their conclusions on this point as follows, in Paragraph 6 of the case stated:

"We were of the opinion: that on the submission of no case to answer that identification evidence should not be excluded under S78 PACE 1984. We were satisfied that H and AS knew each other. Having regard to AS's evidence she had known H for 18 months.

"AS was able to describe the conversation between the girls.

"At the time the decision was made about whether an identity parade should be held there were two additional witnesses who also knew H. PC Berry [that is the officer carrying out the investigation] did not have the benefit of hindsight and was therefore justified in not holding an identification parade taking into account the information known to him at the time.

"An identity parade would have been futile because AS knew H. We considered that there was sufficient evidence for there to be a case to answer.

"We were satisfied that for the findings of fact previously found the prosecution had proved the charge beyond reasonable doubt and therefore found H guilty."

9. The claimant submits that these conclusions of the court involve an error of law and accordingly they ask for the case to be stated. The questions which have been posed for the determination of this court are these:

"(1) Were the Justices correct in refusing to exercise their discretion to exclude, under Section 78 Police and Criminal Evidence Act 1984, identification evidence in circumstances where the identification was by purported recognition of the defendant and was disputed and no identification parade or other identification procedures had been held as required by paragraph 2.3 of Code D, Police and Criminal Evidence Act 1984 Codes of Practice?

"(2) Can a finding of guilt for an offence of Assault Occasioning Actual Bodily Harm under Section 47 Offences Against the Person Act 1861 be made on the basis of identification evidence of the aggrieved alone in circumstances where the identification is established by the purported recognition of the defendant at the scene of the assault and is not supported by any other identification evidence?"

10. The first issue to determine is whether or not the court was right to conclude that there had been no breach of the Code of Practice. Plainly the question of identification was an issue, because the defendant was asserting that she was not at the scene of the offence. Prima facie, therefore, the Code applies.

11. As I have indicated, the leading case now on the question of identification evidence and the necessity to comply with the Code is the Forbes case to which the magistrates referred. In the course of giving judgment in that case, Lord Bingham emphasised the importance of complying with the Code. At paragraph 20, for example, he said this:

"(1) Code D is intended to be an intensely practical document, giving police officers clear instructions on the approach that they should follow in specified circumstances. It is not old-fashioned literalism but sound interpretation to read the Code as meaning what it says.

"(2) Paragraph 2.3 was revised in 1995 to provide that an identification parade shall be held (if the suspect consents, and unless the exceptions apply) whenever a suspect disputes an identification. This imposes a mandatory obligation on the police. There is no warrant for reading additional conditions into this simple text ...

"(4) We cannot accept that the mandatory obligation to hold an identification parade under paragraph 2.3 does not apply if there has previously been a 'fully satisfactory' or 'actual and complete' or 'unequivocal' identification of the suspect by the relevant witness. Such an approach in our opinion subverts the clear intention of the code. First, it replaces an apparently hard-edged mandatory obligation by an obviously difficult judgmental decision. Such decisions are bound to lead to challenges in the courts and resulting appeals. Second, it entrusts that decision to a police officer whose primary concern will (perfectly properly) be to promote the investigation and prosecution of crime rather than to protect the interests of the suspect. An identification parade, if held, may of course strengthen the prosecution, but it may also protect the suspect against the risk of mistaken identification, and a suspect should not save in circumstances which are specified or exceptional be denied his prima facie right to such protection on the decision of a police officer."

12. I derive from that case the principle that there must be a clear justification not to comply with the terms of the code. However, in the course of giving judgment, Lord Bingham also accepted that there would be cases where the code did not cover all possible situations. There would be circumstances where the investigating officer would be entitled not to hold an identity parade, even in circumstances which were not covered by these specific exclusions in the code itself. One of the situations identified was as follows:

"If a case is of pure recognition of someone well known to the eyewitness, it may again be futile to hold an identification parade."

13. The fundamental question in this case, so it seems to me, is whether or not the officer was entitled to take the view that this was what is, as Lord Bingham described it, a: "Pure recognition of someone well known to the eyewitness". Mr Davies for the justices submits that it is such a case. He referred to the evidential material before the officer when he made this determination. The victim herself gave a description of H and said this:

"I have known ... H for approximately 18 months ... "

14. And she said that she met her through H's sister.

15. In the interview given by the defendant, she was asked whether she knew H. Her reply was: "Yes, don't know her surname". It is, I think, pertinent to note that at that interview she was represented by a solicitor in the usual way. She did not at any time ask for an identity parade and nor did her lawyer on her behalf, and it was not suggested to the officer, in the light of those answers, that the question of recognition was an issue. In these circumstances, says Mr Davies, the officer was clearly entitled to conclude that this was one of those exceptional pure recognition cases described by Lord Bingham in the Forbes case. Accordingly, the policeman was obviously justified in coming to the conclusion that it would be futile to hold an identity parade.

16. I should at this point simply note that it appears from the case stated that that was one of the reasons why the policeman did not hold a parade. There was another, which was that at that stage he took the view that there were other witnesses who would be able to identify the defendant, and that appears to have weighed with him also, in some way, as a justification for not holding the identity parade. I simply note that that would of course not be a justification, and had that been the only reason then I would have no doubt that the policeman had acted in breach of the terms of the Code. However, the parties have properly focused in their arguments before me on the question whether the alternative basis was a justifiable basis: namely, that he treated this as a pure recognition case in any event.

17. Miss Tallis, for the claimant, contends strongly that the officer was wrong. She points out, quite correctly, that there is no obligation on a defendant to request an identity parade. Moreover, in the Forbes case, Lord Bingham had justified a strict analysis of the code's principles, in part because of the need to exclude difficult judgmental decisions being taken by officers whose obligation is to promote the criminal prosecution rather than to protect the interests of the defendant. She submitted, again correctly, that the question of recognition was never in terms put to the defendant; in other words, she was not asked specifically whether she accepted that the claimant would be able to recognise her; and she says that the comment that she knew the victim was too general and unspecific for the police officer reasonably to infer, in the circumstances, that she would be capable of being recognised by the victim. She also points out that the claimant, of course, was at all times denying any involvement in the attack. She submits that accordingly, in those circumstances, the question of identity plainly was an issue.

18. Notwithstanding these cogent and well presented arguments, I reject them. It seems to me that in the circumstances, the police officer carrying out this investigation had every reason to believe that the two girls were well known to each other. Neither of them was disputing that. The defendant, as I have indicated, accepted in her witness statement that she knew the victim. It was not suggested that there may be any doubt about the question of recognition, and it seems to me that the officer is entitled, given those answers and given that a legal representative had not raised doubts as to what the natural inference from those answers would be, to take the view that recognition was not an issue in this case. Of course, identification remained an issue because the defendant was saying that she was not at the scene of the crime, and accordingly, even if she could be recognised by the victim, nonetheless the victim was mistaken on the night in question, and there were, in that context, a number of matters which were quite properly advanced by the defence as to the safety of that identification and the kinds of considerations that fall under the R v Turnbull criteria and had to be considered by the justices.

19. Moreover, it is of course the case that if somebody is well known to a witness, it can indeed be detrimental to the defendant in that case to have an identity parade. The witness will in fact be only identifying the person he knows and who he already believes has committed the offence in question. He will not be identifying the person whom he alleged he had seen at the scene of the crime.

20. I appreciate that the issue here, however, is whether the claimant ought to have been given the opportunity of an identity parade, and we do not know what her answer would have been had she been asked that question. Nevertheless, for the reasons I have given, I have concluded that the officer here, in the light of the information before him, was entitled to take the view that these were people who knew each other, and accordingly there was no need in those circumstances to hold an identity parade.

21. That does not determine the whole appeal, however. It is submitted that even if the magistrates were right in concluding that the code had not been infringed, nevertheless the nature and character of the identification evidence in this case, when taken in the round, was such that it was unsafe for them to rely upon it. They should have excluded it under section 47 taking into consideration the Turnbull criteria.

22. Miss Tallis, in this context, identifies certain features of the evidence which, she submits, render the quality of it so poor as to require it to have been withdrawn from the justices. She points out that the incident took place at night when it was dark, that the defendants came from behind and accordingly the witness only had a passing view, and that AS was unable to describe in any detail the clothing worn by either of the defendants. However, there was, as I have indicated, evidence that she was able to recognise the victim. There was also evidence, for example, that the area itself was relatively well lit, and of course the claimant would have been very close to AS when the attack was taking place. I would accept that had the code been applicable then the court would, in my view, have had to exclude the identification evidence, but in these circumstances where the provisions of the code had in my view been complied with, the only question is whether the Turnbull guidelines required these magistrates to exclude this evidence. Looking at the material in the round, it seems to me there plainly was evidence, even at the end of the prosecution case, which they could properly consider was capable of leading to a finding of guilt. Moreover, at the end of the case as a whole, given in addition that as they found in terms that the appellant's evidence was imprecise and she was evasive and they did not find her to be a credible witness, they were entitled to conclude, as they did, that she was guilty of the offences as charged.

23. It follows, going back to the questions that have been posed, that my answer to question 1 is that the justices were correct in refusing to exercise their discretion to exclude the identification evidence, not withstanding that there had been an identification parade held. The question, however, suggests that the identification parade was required by the Code, whereas of course I have concluded that it was not.

24. As to question 2, Miss Tallis accepts that it is plainly not necessary to have corroboration of identification evidence. Accordingly in circumstances where the justices are satisfied so that they are sure that the purported recognition of the defendant at the scene of the assault was an accurate recognition, then yes, they are entitled to reach the finding of guilt. That was the conclusion they reached in the circumstances of this case; and I have found that the evidence was sufficient to justify them coming to that conclusion.

25. Is there anything else that I should have added?

26. MISS TALLIS: I do not think so my Lord, no.

27. MR JUSTICE ELIAS: Thank you both.