Neutral Citation Number: [1999] EWCA Crim 1309
Case No: 9901419/W5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2

Date: Monday 10th May 1999

B E F O R E :

LORD JUSTICE BUXTON

MR JUSTICE HIDDEN

and

MR JUSTICE ELIAS

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R E G I N A

‑ v ‑

Donal LENNON

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
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MISS S HOLLOWAY appeared on behalf of the Appellant
MISS D KARALLIS appeared on behalf of the Crown

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JUDGMENT
LORD JUSTICE BUXTON: Mr Donal Lennon appeals against a conviction in the Crown Court at Inner London before His Honour Judge Rountree and a jury on one count of affray, in respect of which he was sentenced to nine months' detention in a young offender institution.
      The facts of the matter were that Mr Lennon was taking what we are prepared to accept was an active part in a demonstration in south London.  We do not know what the demonstration was about and that is wholly irrelevant to this appeal.  The police had formed a line or cordon in an attempt to contain the demonstrators. The act upon which the charge of affray was based was an allegation that Mr Lennon had thrown a bottle at the police lines.  The defence was one of mistaken identity.  The appellant admitted that he had been present at the demonstration and indeed there was video evidence that he had taken an active part in it.  But he said that he had not been there when the bottle had been thrown and it was not he, therefore, who had thrown it. The issue for the jury was, therefore, a comparatively simple one.
      The police evidence of identification took the following form.  A PC Micklewright gave evidence that he  had seen the appellant between 9.00 and 10.00 in the evening taking an active and abusive part in the demonstration.  He had seen him throw the bottle and then duck behind the crowd, according to PC Micklewright in order to conceal himself. The officer said that he saw the appellant's right arm throw the bottle and he recognised the appellant's face.  When that occurred he had only seen the appellant's face for a brief period of time, described as several seconds.
      PC Turner also gave evidence that Mr Lennon had waved his arms and behaved abusively.  He had recognised or identified the appellant because of his distinctive clothing, apparently involving red braces and blond hair.  We interpose to say that PC Micklewright had equally noticed those features of the appellant.  PC Turner again saw the bottle thrown.  He started to chase the appellant but lost him in the crowd.
      It then appears that what happened was that there was circulated to police officers on their radios a description of the appellant based on what, presumably, had been reported by police constables Micklewright and Turner.  They were asked to look out for such a man. Officers attending the demonstration saw a person answering to that description, the appellant, and arrested him.  He was handcuffed and placed face down in  a police van.
      The normal practice when someone is arrested in these this circumstances would be to remove him to the police station.  However, the sergeant in charge of the police station deemed it better for Mr Lennon to be taken to the police lines.  It appears that his reason was that he could be produced to the officers who had originally identified him and if they were to say that he was not the right person he could be promptly released and the police could continue to look for the proper suspect.
      In our view, although apparently there was some complaint about police procedure in that respect, that was a perfectly sensible decision on the part of the sergeant.  However, it ended up, as we have said, with Mr Lennon being in the police van with a number of police officers.  At some point before the van left for the station police constables Micklewright and Turner entered it.  They immediately said that they could identify Mr Lennon, the man on the floor of the van, as the person who had committed the offence. It was that identification, together their evidence as to what had happened at the lines originally, upon which the Crown relied in this prosecution.
      An application was made to the learned judge that  the evidence of identification should be excluded because it had been obtained in breach of the PACE Code.  The particular part of Code D which was said to have been breached was, first of all, paragraph 2.1 which reads as follows
 
"In a case which involves disputed identification evidence, and where the identity of the suspect is known to the police and he is available the methods of identification by witnesses which may be used are:

(i) a parade;

(ii) a group identification;

(iii) a video film;

(iv) a confrontation."
  
It will be observed that in this case none of those formal means of identification were used by the police officers, in particular an identification parade did not take place.
      If we turn to Note for Guidance 2E to those provisions, there is this further assistance given:
 
"References in this section to a suspect being 'known' means there is sufficient information known to the police to justify the arrest of a particular person for suspected involvement in the offence."
  
It appears that before the learned judge, when he was considering his ruling on whether this evidence should  be admitted, that not only the defence but also the prosecution, on behalf of whom Miss Karallis has conducted the matter with commendable fairness, submitted to the judge that when the appellant was in the police van and identified there by the two officers Mr Lennon had indeed been a known suspect.  The judge did not agree with those submissions.  He said this at page 8 letter D of his ruling on that matter:
 
"Where police stop or possibly arrest a person on information of description, such, on the face of it, is not or is unlikely to be a known subject until and unless that person is subsequently identified either formally or informally."
  
It is conceded on behalf of the prosecution that the judge was in error in taking that view.  In our judgement, he confused the case of a person whose identity is not known, which at that point was the situation of Mr Lennon, with a person who is not known to be a suspect.  The latter was not Mr Lennon's condition.  He clearly was a suspect.  If he had not been a suspect there would have been no justification at all for his being under restraint.  This was, therefore, a case where paragraph 2.1 of Code D applied.
      We have been helpfully given copies of a very recent judgment of the court presided over by Laws LJ in  the case of R v Forbes where the implications of that finding are examined in detail.  We do not need to go to that authority, however, because it is clear on the basis of earlier authority that this was a case in which an identification parade was required to be held. That is clear from what was said by Hobhouse LJ in the case of Popat, at page 215 D of the report:
 
"The extracts from the Code, that which we have just referred to, outlaw the police attempting to attempt an identification of a known suspect other than by an identification parade."
  
In this case it is not strictly accurate to say that the police attempted to obtain an identification otherwise than by an identification parade by the confrontation in the van because, we are prepared to accept, that happened quite accidentally.  But then, that adventitious identification having taken place, it was, as it were, adopted and relied on by the prosecution. It should not have been, in circumstances where the matter did not proceed to an identification parade. That is quite clear from Popat.  It is quite clear also from the further case of Forbes. As we have said, the learned judge misdirected himself on that point.
      He then went on to say, however, at page 10 letter D of his ruling: 
 
"However, if, as both counsel indicate, the defendant was a known suspect then that is clearly in flagrant breach of the Code.  That should not have occurred.  The defendant should have been taken back to the police station for a formal identification, which frankly is unlikely to have occurred for several months."
  
The judge, therefore, made a finding within his discretion on the law, as now properly understood, that there had been a flagrant breach of the Code.
      He, however, went on to say this, having explained that in the circumstances he did not consider the identification to be unlawful, at page 13 C:
 
"Therefore I come to the conclusion that there were no breaches here of the Code.  However, if there were breaches of the Code, the particular situation that arose in this case and the particular unusualness of the defendant's description were such that, for reasons I have already identified and need not repeat, I do not consider here that there was the unfairness which arises in section 78 that should preclude such evidence going to the jury."
  
That analysis seems to have two limbs.  First of all, the situation was particular and might, the judge seems to be saying, excuse in any event the fact that the Code had been breached despite the fact that the breach had been flagrant.  Secondly, and more substantially, that the identification was reliable in any event because of the nature of the defendant's description and its  unusual terms.
      In her realistic submission before us this afternoon Miss Karallis has recognised that she really can only oppose this appeal on the latter basis.  She says that the judge was right to take the view that whatever breach had taken place the identification was nonetheless reliable.  She points to the fact that Mr Lennon did have a distinctive appearance that reasonably could have imposed itself on the officer's consciousness.  Secondly, that they gave evidence taken from a contemporary note of his behaviour at the police lines which was entirely verified by a video film of that behaviour which they had not seen when they made their notes.  On that basis, therefore, it would be implausible to suggest that they had gone wrong only about the throwing of the bottle.
      We have considered those submissions but we feel quite unable to act on them.  There are a number of reasons why that is so.  First of all, this was a situation of confusion in which the crucial question was, who had thrown the bottle?  The officers very properly said that that had been a brief incident and they had only seen the man that they identified as Mr Lennon for a short period of time doing that; it being noted also in that context that the video film  does not depict that part of the events.  It would be difficult, we think, to rely upon description rather than identification to substantiate that action as being that of Mr Lennon.
      Secondly, so far as the distinctive appearance is concerned there was some evidence before the jury that Mr Lennon was not the only person at the demonstration at least with the particular hair style he adopted.
      Thirdly, the judge's error in not categorising this as a gross breach necessarily affected the terms of his summing up and also the terms in which the defence were able to put the matter to the jury.  When he dealt with it he dealt perfectly properly with identification in general and said that the best course would be to have an identification parade, but mentioned to the jury a number of matters that would indicate why such a parade had not taken place in this case.  We have to say that none of them, in fact, justifies in any way a parade not being held, granted that, however confident the police might have been in their identification, they were required to hold a parade by the terms of the Code.
      Then he said this at page 10 letter H, talking of the officers arriving at the van:
 
"They recognised him.  Therefore, that is an informal identification.  Not the equivalent, obviously of a  formal identification parade but, of course, there is always difficulty in a person of unusual appearance and description of clothing appearing in an identification parade.  If you have somebody ‑‑ not taking the defendant, albeit that those matters that he wore, the garments that he wore were, perhaps, unusual ‑‑ very unusual it would be very difficult to find eight or nine people of like description for the purposes of a proper identification parade in any event."
  
That, far from telling the jury that there had been a serious breach of the duty of the officers and of the prosecution, appeared rather to be exculpatory of what had occurred.  That matters because, even if the evidence went to the jury in a case where a breach of the Code has taken place, it is the judge's duty to drew the attention of the jury to that fact and leave it to them to decide what they make of it.  That was made plain in a judgment of this court delivered by the then Lord Chief Justice, Lord Taylor, in the case of Graham where it was made plain that the attention of the jury should be drawn, forcefully if needs be, to the fact that a breach of the rules for identification had occurred, that clearly being a matter that the jury should take into account.
      Putting all these matters together, both the difficulty that we have ‑‑ we have to say ‑‑ in accepting that the judge was justified in omitting this evidence at all, and also the serious distortion to the  summing up that was necessarily caused thereby and the protection of the defendant that should have appeared in the summing up and did not, we are driven to conclude that this conviction was unsafe.  We therefore allow the appeal and quash the conviction.
      Any submissions by anybody?

MISS HOLLOWAY: My Lord, I have been legally aided throughout and I was ‑‑

LORD JUSTICE BUXTON: You want legal aid taxation?  Very well. Thank you very much.