Practice and Procedure


PUBLISHED October 31, 2003

Where identification evidence in breach of Code D was admitted the jury should be directed specifically that there had been a breach of the Codes, however, failure to specifically mention breach of the Codes would not always inevitably render the conviction unsafe.Appeal, with leave of the single judge, against conviction for attempted robbery imposed on 8 October 2002 at Southwark Crown Court before HH Judge Robbins. The defendant ('W') was sentenced to four years' imprisonment. The victim of the offence ('V') was at a bus stop when D approached and demanded money and jewellery from her. V refused and D threatened to put a hypodermic needle into her hand. V managed to escape and call police, she described W as white, clean shaven, with a London accent, wearing brown shoes and a black jacket with a black zip. The police attended the scene and saw W, who ran away. Following a chase he was apprehended on the roof of a factory, he refused an identity parade. The police collected V, telling her they had found a man they wanted her to identify. They drove past where W was being held, he was handcuffed, standing by a police car and surrounded by police. V positively identified him as her attacker. In interview W denied the offence and said he hadn't been running away from the police but from other youths following an altercation. At the time of arrest he had two or three days stubble, spoke with a Glasgow accent, was wearing a black jacket but with a brass zip and brown shoes. At trial the prosecution conceded that there had been a breach of Code D2.26(b). The judge ruled that, in light of the situation the police were in with a recalcitrant suspect, the evidence should not be excluded. When summing up the judge directed the jury on how to deal with the identification and pointed out the discrepancies. W appealed conviction as unsafe on the grounds that: (i) the judge was wrong to admit the evidence in the first place, Code D2.3 applied and W should have been arrested and taken to the police station for formal identification; and (ii) the judge failed to adequately direct the jury as he had not specifically said there had been a breach of the Codes.HELD: (1) There had been an admitted breach of Code D and it did not matter whether the breach was of Code D2.3 or D2.26(b). In the circumstances the judge exercised his discretion within acceptable limits. The police were in an extremely difficult position. W was proposing to be wholly uncooperative and acted in a way that justified the police restraining him. (2) In R v Forbes (2001) 2 WLR 1 the court held that a jury should be specifically directed that there had been a breach of the Codes. However, in the present case the circumstances were unusual in that the Code itself formed no part of the debate before the jury, argument concentrated on the prejudice of the identification and the discrepancies. Whilst not seeking to dilute clear indications by the court in the past that specific reference to the Code had significant value in bringing the jury's attention to particular problems with the case it had to decide, the fact it was not mentioned would not always inevitably mean the verdict would be overturned as unsafe. It was dependant on the circumstances of each case. In the circumstances of the present case the verdict could not be said to be unsafe.Appeal dismissed.

[2003] EWCA Crim 3200