Ross Grier v Director of Public Prosecutions (DPP)

This is the judgment of the Court.

This is an appeal by way of case stated from District Judge Verghis sitting in the Magistrates’ Court on 30 November 2023. The issue relates to the admissibility under s.78 Police and Criminal Evidence Act 1984 (“PACE”) of identification evidence of an eye-witness police officer in circumstances where no “identification procedure” under PACE Code D, Code of Practice for the Identification of Persons by Police Officers (“Code D”) took place. That question has two parts:

There is also an issue as to timing, since the Appellant’s documents were served late.

On 29 March 2023 at 22:57 PC 3595 Adam Price (“PC Price”) was on duty in full uniform driving an unmarked police vehicle with a colleague. He became aware of a Nissan Qashqai vehicle, (“the Nissan”) in a BP petrol station forecourt on Wokingham Road in Early which was of interest to the police.

PC Price drove onto the forecourt of the petrol station to one of the petrol pumps under the canopy. The Nissan was approximately one metre away, on the other side of the same pump. It was dark and drizzling, but the lighting at the petrol station under the canopy was good and PC Price’s view was unobstructed.

PC Price observed the driver for about 15 seconds as a white male with distinctive curly ginger style hair on the top of his head. PC Price also noted that the driver appeared to be paying close attention to the police vehicle.

PC Price ran a check on the Nissan which showed that there was no registered keeper on record for the Nissan, but there was an insurance policy in place held by the Appellant.

Another male got into the Nissan which was driven off the forecourt onto Wokingham Road. PC Price followed the Nissan and attempted to stop it by illuminating his blue lights. The Nissan sped away; in pursuit PC Price noted that the Nissan was travelling at 43 mph rising to 70 mph in a 30mph limit. The Nissan went through a red traffic light and pulled into the path of a Toyota Prius vehicle which had to brake harshly to avoid collision.

PC Price then lost sight of the Nissan, which was found later with its engine running and damaged, outside Poacher’s Pub on Mill Lane house. A search for the driver was unsuccessful.

That night PC Price returned to the police station and started to write-up his note of the incident. He did not however complete this task at this point.

The next day, on 30 March 2023, there were enquiries by the Appellant and the Appellant’s mother seeking the return of the Nissan. In response to those enquiries, PC Price agreed to meet the Appellant at Loddon Valley Police Station. Immediately when the Appellant arrived at the Police Station and met PC Price, PC Price was sure that he recognised the Appellant as the driver. So sure was he that within five minutes he had arrested him.

PC Price subsequently interviewed the Appellant in the presence of a solicitor, and the Appellant answered “no comment” to all questions.

After completing the interview he completed his notes of the encounter the previous night.

The Appellant was charged, as follows:

“On 29 March 2023, at Lower Early in the County of Berkshire drove a mechanically propelled vehicle ... on a road, namely Rushey Way plus adjoining roads without due care and attention, Contrary to S.3 Road Traffic act 1988 and schedule 2 Road Traffic Offenders Act 1988;

On 29 March 2023, at Lower Early in the County of Berkshire drove a mechanically propelled vehicle ... on a road, namely Rushey Way plus adjoining roads, failed to stop the vehicle when required to do so by a Constable in uniform, Contrary to s.163 Road Traffic act 1988 and schedule 2 Road Traffic Offenders Act 1988.”

On 31 March 2023, the Appellant appeared in custody at Reading Magistrates’ Court and pleaded not guilty to both charges. In the case management section of the Preparation for Effective Trial form, in answer to the standard questions, the box was marked that it was “disputed” that “the defendant was present at the scene of the offence alleged”; that it was “disputed” that “the defendant [carried out] [took part in] the conduct alleged [drove the vehicle involved]”; and “disputed” that “the defendant was correctly identified”. In response to the question, “What are the real issues in this case?” someone had recorded that, “The defendant denies being the driver”. A Defence Statement was served in June which made clear that identification was disputed.

On 14 July 2023 the case was tried in front of District Judge Verghis sitting in Reading Magistrates’ Court. The Prosecution called PC Price as a witness and relied on his identification evidence. The judge notes in the case stated that it was never put to PC Price in cross-examination that the Appellant was not the driver of the Nissan.

At the close of the prosecution case the defence made a submission of no case to answer. The Defence submitted that PC Price’s identification evidence was flawed as it lacked detail as to initial observations and he did not complete his notes until after he had arrested the Applicant on 30 March 2023. Further, it was contended that the Police were under a duty in the circumstances to hold an identification parade in accordance with Code D. Accordingly, it was submitted that the identification evidence should be excluded under s. 78 PACE.

The District Judge having found a case to answer, the Defence did not call the Appellant to give evidence. The Defence relied on essentially the same arguments in closing. The Prosecution submitted that PC Price’s identification evidence was corroborated by evidence of the Appellant’s insurance of the Nissan and the Appellant’s intention to retrieve the vehicle within 24 hours of the incident. They also invited the judge to draw an adverse inference from the Appellant’s failure to give evidence in his defence.

On 18 July 2023 at Slough Magistrates’ Court District Judge Verghis gave her verdict orally. She found the Appellant guilty on both charges. After hearing mitigation evidence on behalf of the Appellant, DJ Verghis sentenced the Appellant for the offence of driving without due care and attention to a fine of £750, a surcharge of £300, costs of £775, and a discretionary disqualification from driving of 12 months pursuant to S.34(2) Road Traffic Offenders Act 1988. No separate penalty was imposed for the non-endorsable offence of failing to stop when required to do so by a police officer in uniform.

DJ Verghis directed that Reading Crown Court should be notified of the convictions as the Appellant had previously been placed on a 24-month suspended sentence order on 16 March 2023 in respect of two offences of possession of class A drugs with intent to supply.

On 30 November 2023 DJ Verghis decided to state a case for the opinion of the High Court on the following question of law:

“Was I as the District Judge correct not to exclude the identification evidence of PC Price under s. 78 of PACE?”

The decision to state a case by the magistrates’ court was served on the Appellant and the CPS on 22 January 2024. The Appellant filed the Appellant’s Notice at the High Court on 2 February 2024, a day after the applicable 10-day time limit set out in CPR Practice Direction 52E paragraph 2.2, without filing an application for an extension of time.

On 5 February 2024 the case was issued by the High Court. The Appellant served the case and the Appellant’s Notice on the CPS on 16 February 2024.

Section 78 of PACE 1984 states:

“(1)

In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. (2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.”

Although on its face section 78 confers a discretion, the true position was explained by the Court of Appeal (Criminal Division) as follows in R v Twigg [2019] 1 WLR 6533, at [42]-[43]:

“42.

The function of a judge under section 78 of PACE is often described as being the exercise of a ‘discretion’. That is how it was described in the present case. This is consistent with the use of the word ‘may’ in section 78 itself. However, as Auld LJ observed in R v Chalkley [1998] QC 848, 874, strictly speaking section 78(1) does not involve a discretion because, if a court decided that admission of the evidence in question would have such an adverse effect on the fairness of the proceedings that it ought not to admit it, it cannot logically exercise a discretion to admit it. Indeed, this position can only have been reinforced by the coming into force of the Human Rights Act 1998 (‘HRA’).

43.

The right to a fair trial is one of the rights enshrined in article 6 of the ECHR set out in Schedule 1 to the HRA; and section 6(1) of the HRA makes it unlawful for any public authority to act in a way which is incompatible with a Convention right. A public authority includes not only the police, the prosecution but also a court: see section 6(3)(a). In circumstances therefore where there would be an unfair trial that is unlawful under section 6(1) of the HRA. To that extent it is not appropriate to refer to there being a ‘discretion’ since it is not possible in law to admit evidence which would render a trial unfair.” (Singh LJ)

Nonetheless, although the terminology of “discretion” is not apt, the consequence of the evaluative, judgment-based nature of the decision is that it is one with which this court will not lightly interfere. The role of an appellate court was explained as follows in R v Bogie [2023] EWCA Crim 1280, at [56]:

We were referred principally to three authorities: R v Nunes [2001] EWCA Crim 2283, R v Gojra [2010] EWCA Crim 1939, and R v Fergus [1992] Crim. L.R. 363.

In Nunes a police officer attended a burglary in progress, saw a man inside the building, circulated a description, and then later an area search took place in which other officers detained a suspect matching the description and placed him under arrest. The officer attended shortly after this - and before the suspect was placed in a police van, and identified the suspect as the one he had seen committing the burglary. The Court of Appeal held that this was a breach of PACE Code D because the defendant was a known suspect and therefore a proper identification procedure should have taken place. At [20-22] the Court reviewed Lord Bingham’s speech in R v Forbes [2001] 1 AC 473 where he emphasised the practical nature of the Code and the need to read it as meaning what it says. At [22-23] it stated:

“…as Lord Bingham points out at page 13 of the report in Forbes, in the absence of exceptional circumstances of which he gives certain examples, the effect of paragraph D:2.3 is clear and mandatory….

What Forbes demonstrates is that in those cases to which the relevant provisions of the Code apply, the holding of an identity parade is not optional. It is, from the point of view of the police, mandatory. The choice whether an identification parade takes place lies not with the police but with the suspect. We would suggest that that is just as it should be.”

Gojra was relied on for the proposition that identity does not need to have been raised as an issue on arrest or during interview for the police to have been under a duty to consider it. However, that is not a proposition which is actually to be found in the case itself. That was a case where an identification procedure was held in respect of one witness but not another and it was argued that identity was not in issue until the defence statement was served. The Court disagreed at [72]:

“We have no difficulty concluding that Haq should have been invited to an ID procedure. We do not consider that the formality of the service of Gojra’s Defence Statement was the moment critique for the realisation that identity was in issue. It must have been apparent to the police long before then, and at the latest at a bail application presented by leading counsel long before the trial and well in advance of the service of Gojra’s Defence Statement.”

Fergus was cited to us by way of analogy. While there was no relevant statement of principle it was submitted that the facts were a useful parallel to the present case. In that case it was held that a formal identification parade or confrontation ought to have been held in a case where the witness had only seen the suspect once before and had been told the suspect’s name as hearsay by a third party.

The Appellant (via Mr Bibby who appeared below and for whose clear and focussed submissions we are most grateful), submits that PC Price’s evidence breached the applicable 2017 version of Code D as, at the time of being invited to the Police Station by PC Price, the Appellant was a known, named suspect (indeed the only known suspect) and it would have been practicable for another officer to have met the Appellant at the police station, effected the arrest, and arranged an identification parade. It was submitted that paragraph 3.12 of the Code confirms that this is a circumstance “…in which an eye-witness identification procedure must be held”.

The Appellant further submits that the breach of a mandatory provision of Code D, combined with the fact that PC Price’s statement was written in two stages - and not completed until after having arrested and interviewed the Appellant -increases the likelihood that it was tainted with confirmation bias.

The Appellant relies also on a passage of the judgment in R v Nunes [2001] EWCA Crim 2283; [2001] All ER (D) 445 (Oct) and the speech of Lord Bingham in R v Forbes [2000] UKHL 66, [2001] 1 AC 473. He contends that these confirm the mandatory duty on the police to hold an identification procedure in these circumstances. In relation to Gojra it was submitted that that case makes it quite clear that the issue of identity does not need to be raised on arrest or in interview for the police to be under a duty. It was also submitted that [32] of the case stated, where the District Judge emphasised the failure to raise the point in interview, shows that there had been insufficient consideration of Gojra.

On this basis it is said that as the admission of the evidence would have had such an adverse effect on the fairness of the proceedings, DJ Verghis erred in refusing the Appellant’s s. 78 PACE application. The essence of the submission was that absent ID evidence there could be only one decision (acquittal); hence the answer to the question as to undue prejudice was wrong in law.

The Respondent, via Mr Ray’s helpful and concise submissions, contends that the holding of an identification procedure is not mandatory in these circumstances and there was no breach of Code D. It contends that on the correct interpretation of the 2017 iteration of Code D the obligation to hold an identification procedure would only arise after the police became aware that there was a dispute concerning identification (either at the Appellant’s first appearance in Reading Magistrates’ Court on 31 March 2023 or later at trial). At that point any such procedure would serve no useful purpose in proving or disproving whether the suspect was involved in committing the offence.

Secondly, the Respondent submits that DJ Verghis correctly held that if there were a breach of Code D, admitting the evidence would not have caused any significant prejudice to the Appellant after assessing the quality of PC Price’s identification evidence with reference to the Turnbull criteria noting the identification evidence was supported by important corroborative evidence that (i) the Appellant insured the vehicle in question, and (ii) the Appellant intended to retrieve the vehicle within 24 hours of the incident.

Accordingly, the Respondent says that DJ Verghis correctly dismissed the Appellant’s application under s. 78 PACE.