Neutral Citation Number: [2008] EWCA Crim 1524
Case No: 2008/01184/C5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17/07/2008
Before :

LORD JUSTICE MAURICE KAY
MR JUSTICE PLENDER
and
THE RECORDER OF NOTTINGHAM (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
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	Regina		
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	B		

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Mr John Alban Williams for the Defence
Mr Tim Naik  for the Crown

Hearing date : 26 June 2008
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Judgment

Lord Justice Maurice Kay  : 
1.	We have given leave for this appeal by the prosecution pursuant to section 58 of the Criminal Justice Act 2003.  On 21 February 2008 in the Crown Court at Isleworth, B was to be tried for offences of kidnapping and robbery.  The evidence against her was essentially identification of her by the victim in the course of a video identification procedure.  At the outset of the trial, counsel on behalf of B made an application to exclude that evidence pursuant to section 78 of the Police and Criminal Evidence Act 1984.  Having heard submissions, the judge ruled that the evidence be so excluded.  There being no other evidence upon which the prosecution could seek to prove its case, the ruling was a “terminating ruling”.  Thereafter the procedure under section 58 was properly followed.  
2.	The offences of kidnapping and robbery occurred on 16 May 2007.  Charan Singh was walking along Southall Broadway when he was approached by a female who asked for the time.  He crossed the road to a better lit area and told her.  She then asked if he wanted to buy a mobile phone.  At this stage they were approaching a jeep-like vehicle which was parked on a corner.  Mr Singh declined the offer but was suddenly grabbed by two men who, together with the female, forced him into the jeep which was driven off by one of the men.  The female sat next to Mr Singh in the rear of the vehicle.  She had an arm around his throat and she gave directions to the driver.  Mr Singh was searched by the other man and various items were taken from him including £2,000 in cash, a mobile phone and a wallet containing bank cards.  A gold ring was forcibly removed from his finger.  The female then ordered him out of the vehicle.  A member of the public, who had seen Mr Singh being dragged into the vehicle, made a 999 call.  Police officers went to B’s house.  Outside the house was a blue 4x4 estate which belonged to B.  Arrangements were made for her to attend Southall Police Station on 22 May.  When she attended on that day she was arrested and interviewed about the offences but she denied involvement and said that, at the material time, she had been in the house of a neighbour.  On the following day, 23 May, Mr Singh attended Acton Police Station where he positively identified B in a video identification procedure.  
3.	The identification procedure was carried out by Inspector Winnett who completed a standard form document as the procedure progressed.  Mr Singh was assisted by an interpreter.  No complaint is made about the general arrangements.  We have had the advantage of seeing a video recording of what transpired.  
4.	At the outset the Inspector said to Mr Singh:
“You have been asked here today to see if you can identify one of the persons you saw on Wednesday 16 May 2007 at 10.20pm … who assaulted and robbed you.”
He then added (reading from the proforma):
“In a moment I am going to show you a film of nine people.  I want to make it clear to you that the person you saw may or may not be on the film.  You must view the film at least twice, but may see all or any part of it again if you so wish.  You may also have an image ‘frozen’ to study.  When you have finished I will ask you some questions.  If you cannot make a positive identification then you should say so.  Do you understand?”
Mr Singh confirmed that he understood.
5.	After Mr Singh had viewed the nine people once and prior to the second viewing, he volunteered:
“Its number one.”
6.	Number one was B.  There was a brief exchange involving Mr Singh, the Inspector and the interpreter which took place whilst the early part of the second showing was underway.  The Inspector told Mr Singh that he must watch the film a second time, expressing himself in similar terms to those used prior to the first showing.  After the second showing, the Inspector asked Mr Singh whether he wanted to see the film or any individual images again.  Mr Singh replied that he wanted to see number one.  When that was replayed and the Inspector asked again whether Mr Singh wanted to see the film or any individual images, Mr Singh replied:
“No.  I suspect number one and my suspicions are one hundred per cent correct.”
7.	The formalities required by the proforma were then completed.  
8.	Video identification procedures are covered by Annex A to Code D, Code of Practice for the Identification of Persons by Police Officers, issued pursuant to the Police and Criminal Evidence Act 1984.  Paragraph D11 includes the following:
“Furthermore, it should be pointed out to the witness that there is no limit on how many times they can view the whole set of images or any part of them.  However they should be asked not to make any decision as to whether the person they saw is on the set of images until they have seen the whole set at least twice.”
9.	Paragraph D12 then provides that once the witness has seen the whole set of images at least twice and has indicated that he does not wish to view them again, he “shall be asked to say whether the individual they saw in person on a specified earlier occasion has been shown and, if so, to identify them by number of the image”.  It is apparent from our description of the procedure which took place in the present case that, notwithstanding the final sentence of paragraph D11, Mr Singh was not asked not to make any decision as to whether the person he saw was on the set of images until after he had seen the whole set at least twice.  The Inspector was working from the proforma and, unfortunately, the proforma did not take cognisance of the final sentence of paragraph D11.  It is common ground, therefore, that there was a breach of paragraph D11.  
10.	Section 78(1) of the Police and Criminal Evidence Act provides:
“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.”
11.	By his ruling, the judge excluded the identification evidence pursuant to section 78 and by reference to the breach of the Code.
12.	For some reason, the ruling of the judge was given by reference not to paragraph D11 of the Code but to paragraph D16, which applies to identification parades as opposed to video identification.  The two provisions are expressed in different terms.  Whereas D11 says that witnesses at a video identification “should be asked not to make any decision … until they have seen the whole set at least twice”, D16 states that the witness
“must also be told that they should not make any decision about whether the person they saw is on the identification parade until after they have looked at each member at least twice.”
13.	We have not been able to discover any good reason for this difference in language.  However, it is a possible explanation for the hybrid wording of the proforma used by the Metropolitan Police in this case:
“You must view the film at least twice, but may see all or any part of it again if you so wish …  When you have finished I will ask you some questions.”
14.	What troubled the judge is expressed in this way in his ruling:
“The true answer, it seems to me, to the question whether the witness may have given a different answer had he been properly instructed is that we simply cannot ever know.  The fact is, though, that there is a possibility that he might have given a different answer had he been properly instructed.”
15.	The judge further considered that any cross-examination of the witness directed to that question would be pointless because “almost inevitably, looking at the matter realistically, the so-called identifying witness would say that which amounted to a confirmation of this original identification”.  For these reasons
“I withdraw or do not allow that evidence to be led because of the breach of Code D16 under the Police and Criminal Evidence Act.”
16.	He considered it to be a matter of incurable unfairness in the context of section 78.
17.	On this appeal, three points are common ground.  First, a breach of the Code will not necessarily lead to the exclusion of evidence pursuant to section 78.  Counsel are content to accept the proposition that it is only a “significant and substantial” breach that may lead to that conclusion.  Secondly, as Hobhouse LJ said in Popat [1998] 2 C App R 208:
“… it is always necessary to have regard to the purposes of Code D even in interpreting and applying the Code.  The overall purpose is one of adopting fair identification practices and adducing reliable identification evidence.  Where insufficient regard is had to these purposes, the discretion to exclude evidence under section 78 is likely to be exercised and convictions will be liable to be treated as unsafe.”
18.	Thirdly, whether an appeal is brought by the prosecution or by the defence, this Court will not lightly interfere with a trial judge’s decision under section 78.  It will only do so on Wednesbury grounds.
19.	It seems to us that the judge was right to consider whether the consequences of the breach could be cured and any unfairness in the proceedings alleviated by the trial process.  The submission of the prosecution at trial and in this Court is that, to put it at its lowest, there was scope for such cure and alleviation and that it was wrong for the judge to reach the contrary conclusion and to do so on the basis that Mr Singh might have given a different answer to the Inspector if he had been given the full instruction.
20.	We accept this submission.  We consider that the judge fell into error by concentrating on that point and the assumed answer to any question in cross-examination about it.  When one speaks of a problem being cured or alleviated within the trial process, one is not simply referring to the possibility, however remote, that a controversial witness will contradict his previous identification or account.  There are other ingredients of the process to be considered.  If, having heard all the prosecution evidence, the judge concludes that a defence submission on the basis of Galbraith and Turnbull should succeed, he will stop the case at that stage.  If he declines to do so, he will be obliged to give the jury cautionary directions drawing attention to shortcomings in the identification evidence, including reference to any breaches of the Code.  By that stage, the defendant will also have had the opportunity to give and to call evidence and counsel will have been able to address the jury, again inviting consideration of the significance of breaches of the Code.  This is not to say that a judge can never terminate a case in limine in the way that the judge did in this case.  However, he will fall into legal error if he does so without considering the full potential of the trial process to enable fairness and justice to be assured.
21.	One of the matters which a judge will have to consider is the existence or otherwise of other evidence which may be said to support the disputed identification.  There is some, albeit not overwhelming, evidence in this case.  In his statement, Mr Singh described the vehicle as a “sky blue colour car … not a saloon … a jeep type of vehicle … a very old model … a 4 door vehicle”.  When the defendant was arrested after the robbery, there was what the police described as a blue Vauxhall Frontera, registration number L847 NGS, parked outside her home.  In interview, she admitted that it was effectively hers and described some recent transactions in which it had changed hands for some £300-£400.  Although Mr Alban-Williams tells us that its colour, as described in the registration document, is green rather than blue, that is precisely the sort of issue that can be illuminated by evidence and cross-examination.  We mention the evidence about the vehicle because the judge, in our view wrongly, failed to consider it.  
22.	We also understand that the judge declined to view the recording of the video identification procedure.  In his skeleton argument Mr Alban-Williams submitted that it was essential that we should view it because it showed the demeanour of the witness to have been “impatient, petulant even”.  We have viewed it.  None of the three members of the Court agrees with that description.  There is nothing in the material before us that causes us to be critical of the witness.  We acknowledge that his identification of the defendant arose out of difficult circumstances but this, it seems to us, all goes to weight rather than admissibility and it is a matter for resolution at trial and not by us.
23.	For all these reasons, we consider that the judge did fall into error and ought not to have excluded the identification when and for the reason that he did.  We allow the appeal, reverse his decision and return the case to Isleworth Crown Court for the trial to be resumed.  Nothing we have said should be taken as encouragement to or discouragement from the making of a defence submission, if so advised, at the conclusion of the prosecution case.