Practice and Procedure


PUBLISHED April 4, 2003

Although the procedure used by the police to obtain identification evidence was open to criticism, it did not have such an adverse effect on the fairness of the proceedings to warrant its exclusion.Appeal against conviction on 7 December 2001 by the appellant ('F') for the murder of his wife ('M'). M was last seen on 16 October 1981 and her remains were discovered during demolition work at a hospital on 2 June 1999. There was evidence of previous significant and ongoing violence by F towards M and there was considerable circumstantial evidence pointing to F as the killer. This evidence, however, was insufficient to convict F without further evidence connecting F to the site where the remains were discovered. In February 2000, the police conducted a search at F's home and discovered a passport belonging to him issued in August 1981. The photograph in the passport was enlarged and subsequently shown to five people who had worked at the hospital site when renovation work was carried out in 1981. The intention was to establish a connection between F and the site where the body was found. Three out of the five witnesses who were shown the photograph identified F. The sole issue raised on the appeal related to the manner in which the prosecution established F's connection with the site. F contended that: (i) the evidence was obtained in breach of Code D of the Code of Practice under Police and Criminal Evidence Act 1984; (ii) the quality of the identification evidence was poor and the adopted procedure had failed to follow principles of fairness ; and (iii) the identification evidence should not have been admitted and consequently the conviction was unsafe.HELD: (1) The procedures in the Code under the 1984 Act were never intended to apply to situations where it was sought to connect an individual to circumstances that occurred many years before. The Code presupposed that an identifying witness would be able to give a description of the suspect. This was a recognition case rather than an identification case. The combination of this and the passage of time made the identification procedures in the Code inappropriate. (2) There was failure to comply with some parts of Annex D of the 1984 Act but it was clear these errors did not lead to any injustice. (3) The only failure of any significance was that a single photograph rather than a frame showing at least 12 other photographs had been shown to the witnesses, but there was no evidence that this was unfair to F, particularly as some of the witnesses not only recognised F, but were able to give additional information. (4) Although the procedure used by the police was open to criticism, it did not have such an adverse effect on the fairness of the proceedings to warrant its exclusion. (5) It could not be concluded that the identification evidence ought not to have been admitted or that the conviction was in any way unsafe.Appeal dismissed.

[2003] EWCA (Crim) 908