K v Director of Public Prosecutions

MR JUSTICE HENRIQUES: The appellant is a minor. I shall refer to him as "K".

This is an appeal by way of case stated from an adjudication by District Judge Gray at Grays Magistrates' Court on 23rd July 2002, whereby the appellant was convicted of robbery contrary to section 8 of the Theft Act 1968.

The facts can be stated succinctly.

On 12th November 2001 at 1.10 am, the victim was approached by a group of four persons -- two black males, one white male and one mixed race black female -- in a street with good lighting. He was asked for money. The victim handed over his wallet, which was searched and returned. He was then asked for his mobile telephone and he handed it over. The group of four departed, threatening to hurt the victim if he told anyone.

The victim had seen the group for some time in good light and he heard the demands for his phone.

The victim contacted the police, who attended the scene. He described the group of four. Thereafter, a dog handler came to the scene. Two officers took the victim in their car to look for the group of four, whilst the dog and his handler started to track the path of the group.

The two officers followed the dog handler. At one stage, they saw three figures. Those three figures disappeared. Soon after, Police Constable Noakes saw the appellant standing on his own in Warley Mount. The officer considered he had insufficient evidence to arrest the appellant, as the description he had received was very brief, and he needed identification if he was to effect an arrest.

The officer told the appellant to walk to the police car with him, as he wished to see if the appellant would be identified by the victim as the person responsible for the robbery. They pulled him over to the car and held him at the window.

The victim identified the appellant as the person who had robbed him. On the way to the car, the appellant had protested his innocence. I interpolate at this stage to say that was a complete denial of any participation, or indeed presence at the robbery.

At a subsequent interview, the appellant admitted that he was present at the scene of the robbery as one of the four persons, but denied playing any part in the robbery. He asserted that one Mustafa King was the actual robber, and although he admitted to being one of the group of four, he asserted that he was an innocent bystander.

It is significant to note that, having observed the appellant, the victim told Police Constable Foche that he had changed his top and that, at the time of the robbery, the appellant was wearing a top with the word "Harlem" on it. Shortly afterwards, three others were arrested, one of whom, Mustafa King, wore a top with the word "Harlem" upon it.

There was no subsequent identification parade of any person arrested. The other black male was not charged. The other two arrested pleaded guilty: one to robbery; the other to handling stolen goods.

The appellant stood trial initially before lay Justices at Grays Magistrates' Court on 4th April 2002. That trial was discontinued, due to two purported dock identifications taking place. Subsequent to that event, a police officer visited the victim and took a further statement from him dealing with material which went to identification. That statement was dated 21st June 2002 and I have it before me.

The trial of 23rd July commenced with a submission being made that the proceedings should be stayed on the grounds of abuse of process on the purported grounds that any evidence given by the victim would be tainted by the dock identifications and by the fact that a further statement had been taken from the aggrieved concerning identification.

Mr Sekar, who appears today, made that submission before the District Judge.

The first question posed for the opinion of this court is: (a) whether the trial should have been stayed as an abuse of process on the grounds of a dock identification in an earlier trial, and a further statement being taken from the aggrieved concerning identification.

The District Judge took the view that, as this was a fresh trial and he would be deciding the issue according to admissible evidence on the quality of the identification and any other relevant evidence, and there was nothing before him to suggest that there was anything improper arising from the further statement or any mala fides on the part of the prosecution, he considered that the submission was without merit.

I start with a consideration of the consequences of a dock identification having taken place. There are, of course, circumstances -- exceptional circumstances -- where dock identifications have been ruled permissible, for example Barnes v Chief Constable of Durham [1997] 2 Cr App R 505, where, in driving cases before Justices, identification has never been put in issue, or in the case of a particularly refractory defendant, neither of which exceptions applies here. The Justices took the obvious and conventional course and discontinued the proceedings and ordered a retrial.

A dock identification is, of course, far more significant as a potential irregularity in a case where no identification parade has taken place involving the witness in question. If there has been such a parade, with a positive identification, the dock identification may, depending on its form, be no more than an assertion that the person in the dock is the same person as the person viewed on the parade.

In the circumstances of the present case, after two dock identifications, there can be no questioning the decision of the Justices to discontinue. Generally, a retrial will be appropriate unless a fair trial is impossible thereafter.

Did the taking of a further statement render such a fair trial impossible? Circumstances in which it will be desirable to interview and identify the witness between one trial and the next may well arise. The witness may wish to impart further information. He may, for example, have seen the suspect in the meantime. It is important that any further information imparted to the police by an identifying witness is faithfully recorded in a statement. If, of course, the taking of a further statement did involve some improper manipulation of the court process, then it might successfully found an application to stay proceedings.

However, in the circumstances of the present case, it is plain that the statement given by the aggrieved person is entirely conventional in form, doing no more than to clarify certain details which had in fact already been given to the police.

It seems to me that the District Judge was entirely correct in deciding not to grant the stay and he was entirely correct in deciding to hear and determine the case upon admissible evidence. Accordingly, in relation to the first question, (a), the answer that I would give is: yes, he was correct.

The second question is whether he was entitled to find that the failure to hold an identification parade was not a breach of Code D.2.3 of the Codes of Practice. D.2.3 reads:

Paragraphs D.2.4 to D.2.15 deal with Video Identification and Identification Parades, Group Identification and Confrontation, and paragraph D.2.14 states:

D.2.15 provides that:

It was submitted on behalf of the appellant that the District Judge should exclude the evidence of the identification of the appellant by the victim by reason of the breach of D.2.3.

The District Judge also had in mind Code D, paragraph 2.17:

The District Judge expresses himself in the case as being of the opinion that the identification evidence was of high quality. He stated this at paragraph 9:

Having found that the identification was of good quality, he went on, however, to conclude that the issue was one of participation, rather than identification. At paragraph 10, he said:

The aggrieved noted at the time he identified the appellant that he was wearing a different top. The District Judge said this:

Having read the notes of the appellant's evidence, it seems to me that there was in this case an issue of identification. The appellant was identified as the man who asked the victim if he had money. He was identified as the person who took the wallet and the person who demanded the phone. He asserted that he was someone else and, accordingly, I conclude that there was an issue as to identification.

It is convenient to consider the remaining two questions posed in the case: (c) whether, if the failure to hold an identification parade was in fact a breach of code D.2.3, I was entitled to admit the identification evidence and not exercise my power to exclude it under the provisions of section 78 of the Police and Criminal Evidence Act 1984; (d) whether, given the breach of code D.2.17 of the Codes of Practice, I was entitled to admit the identification evidence and not exercise my discretion to exclude it under the provisions of section 78.

The first breach in point of time is the breach of paragraph D.2.17. That breach was a breach acknowledged by the District Judge. The breach involved the last sentence of that paragraph:

What in fact the police officers did was to pull the suspect over to the car and to hold him at the window. It is difficult to conceive of a clearer breach of D.2.17 than that.

On behalf of the Director of Public Prosecutions, it is submitted that the learned District Judge quite properly exercised his discretion to admit evidence of that act of identification. It was said that the breach was not committed in circumstances of bad faith on the part of the officer and that the court was entitled to take into account, when considering all of the circumstances, that the appellant admitted his presence at the scene, also that he admitted having worn at the time of the offence a top which the victim described him to have been wearing, but which he was not wearing upon his arrest, a fact which the victim specifically adverted to.

It was asserted by Mr Ageros that section 78 was quite properly applied, that the District Judge had regard to the fairness of the proceedings and that he had considered all the circumstances of the case.

The difficulty which arises with that proposition is that, at the time when witness and suspect were permitted to view one another, the safeguards built into the statute and the Codes of Practice were simply not being observed. This was a clear case in which the victim should not have been directed towards the suspect.

The police officer sought to justify that course of action by asserting that he did not have sufficient evidence to make an arrest, notwithstanding the fact that he appears in fact to have made such an arrest by pulling the suspect towards the vehicle.

The fact of the matter was that a police dog had followed the trail. Three of the four people had been seen nearby and, with the guidance of the police dog, the police officers were able to focus upon this appellant.

Accordingly, I am of the view that there should at that stage have been no confrontation. They should have been kept apart and an identification procedure should thereafter have been commenced.

Having, however, permitted the victim to see the suspect at the police car, there should thereafter have been an identification procedure carried out under D.2.3, the circumstances of this case being very similar indeed to the facts in Forbes. That case is reported at [2001] 1 AC 473. The House of Lords held that paragraph D.2.3:

In the case of Forbes, what occurred in the street immediately prior to the purported identification was indeed different. Having been robbed at knife point, the victim made good his escape and joined his friend in his car. The two men drove around in the car and the victim saw his assailant in the street. The man spat at the car as it went by. The victim contacted the police and they then drove him round, before the victim saw his attacker for the second time. An arrest occurred, but no identification parade was held.

Whilst holding that an identification parade was mandatory, the House of Lords nevertheless concluded that nothing led them to consider the trial as unfair, nor the conviction as unsafe.

In the present case, the appellant had protested his innocence before he was told to walk to the police car. As I have already indicated, there was sufficient evidence to arrest the appellant and an identification procedure should then have been invoked. Thereafter, granted that such procedure was not invoked, the case of Forbes is authority for the procedure that an identification procedure was mandatory pursuant to D.2.3.

Having reached those conclusions, my answers to the questions posed in relation to (b), (c) and (d), I would answer no.

Of course, I must have regard to the fairness of these proceedings. Had the District Judge taken the view that I have taken in relation to these several matters, he ought, in my judgment, to have excluded the evidence of the identification procedure which took place close to the police vehicle. The effect of that would have been to bring the proceedings to an end, as the prosecution would simply thereafter not have been in a position to prove their case. Accordingly, I would quash this conviction.

LORD JUSTICE ROSE: I agree that, for the reasons given by my Lord, this appeal should be allowed, the questions in the case stated answered as he has indicated and the conviction quashed.

MR SEKAR: I am grateful. I would ask for legal aid taxation?

LORD JUSTICE ROSE: I understand you already have a representation order and we do not need to say anything, except that we make no order for recovery of defence costs.