R v Jones (Derek)

R v Nelson (Gary)

(1999) The Times, 21 AprilCourt of Appeal.

The Facts

LORD JUSTICE BELDAM, delivering the judgment of the court, said that a co-defendant had been convicted of the murder of one man and the attempted murder of another. Jones & Nelson were convicted of being concerned in that murder and attempted murder.

The prosecution had arranged for an identity parade to take place some 18 months after the event but Jones & Nelson had declined to attend on the ground that an identification made so long after the event would have no value.

The inspector in charge decided that the witness should be confronted with Jones & Nelson. Jones objected and put a garment over his head and generally refused to cooperate.

Three police officers then used a degree of physical force to make his face visible, to restrain him and at one point to close his mouth. There was a continuing struggle throughout the confrontation during which the witness looked through a viewing panel. Those events were recorded on video and were not in dispute.

Nelson, who was waiting in a room nearby, had heard the commotion, including shouting by Jones when he was being made to confront the witness. The inspector in charge told Nelson that, if he did not consent to a confrontation quietly, reasonable force would be used to compel him to do so. Nelson then agreed to be confronted and was identified.

It was submitted by counsel on behalf of Jones & Nelson that there was a clear breach of Code D of the Police and Criminal Evidence Act 1984 (s.66) Codes of Practice and that the trial judge should have ruled that evidence of identification in those circumstances was inadmissible.

The judge had accepted a submission that it was permissible for the police to use force to bring about the confrontation to ensure that the process was not frustrated and that the Codes permitted it.

Counsel for the Crown sought to justify the use of force by reference to the 1984 Act and the Codes made thereunder; particularly Code D and Annex C thereto which dealt with confrontation.

He also relied on Code C8, Conditions of Detention, where in paragraph C8.9 "Reasonable force may be used if necessary ... (i) to secure compliance with reasonable instructions, including instructions given in pursuance of the provisions of a code of practice..."

He then referred to section 117 of the 1984 Act which provided: "Where any provision of this Act - (a) confers a power on a constable; and (b) does not provide that the power may only be exercised with the consent of some person, other than a police officer, the officer may use reasonable force, if necessary, in the exercise of the power."

In their Lordships' view, section 117 was not to be interpreted as giving a right to exercise force whenever the consent of a suspect to a course of action taken under the Act by a constable was not required.

Code D with its annexes was made under section 66. There was no express or implied power to authorise a constable to use force in the Code.

On the contrary, it was to be presumed that any such power was exclusively contained in section 117.

The mere fact that the secretary of state had included in Code C a requirement that reasonable force might be used to secure conditions of detention did not, in their Lordships' view, authorise the use of force, reasonable or otherwise, to bring about a confrontation.

There had been a breach of the Codes of Practice in relation to each of Jones & Nelson. It was impossible to say what impact this identification evidence had on the jury and, accordingly, the appeals would be allowed.

The Decision.

There was no power enabling the police to use reasonable force to make a suspect submit to a confrontation by a witness.

The Court of Appeal, so held allowing appeals by Jones and Nelson against

their convictions in July 1997 at Crown Court of murder, attempted murder and violent disorder. Retrials were ordered.

Comment

This shows yet again the weakness of this method.

A confrontation must generally be carried out, if at all, in accordance with Annexe C to Code D. The procedure has the advantage of not requiring the suspect’s consent or co-operation (Code D, para. 2.13), but it is in some respects little better than a dock identification, and the courts may well exclude such evidence where the limited safeguards required under Annexe C have not been provided. See, for example, Powell v Director of Public Prosecutions [1992] RTR 270, where the identifying officer had apparently arranged his own confrontation in breach of Code D and the conviction was quashed. See also Samms [1991] Crim LR 197.

In R v Samms, officers witnessed an attempted theft and circulated the description of the suspects involved. The defendants were arrested by other officers and then seen by the observing officers in the station whilst being booked in. This was effectively a confrontation in circumstances where it had not been shown impracticable to hold a parade or group identification, and led to the evidence of the identification being excluded.

Judicial misgiving re confrontation can be seen in Joseph [1994] Crim LR 48,where the police had done their best to arrange for a parade, group identification or video identification, but without success (Joseph was tall, black and bearded, with shoulder length dreadlocks). The prosecution sought to proceed on the basis of other evidence, but Joseph demanded a confrontation immediately before the trial, in the hope that the witnesses would fail to identify him. This did not work out as he had hoped, as he was identified by two of the witnesses, and the trial judge admitted that evidence, on the basis that the defence had asked for the confrontation. The Court of Appeal took the view that, on balance, the weakness of such evidence still pointed to exclusion under the Police and Criminal Evidence Act 1984, s. 78, as the better course of action.

In R v Long [1991] Crim. L.R. 453, police officers had taken the registration number of a motor car which they had previously chases for an offence of reckless driving (now dangerous driving again, s.2 Road Traffic Act 1991). The appellant subsequently attended the police station to report his car as being stolen. While he was at the counter the officers came into the station and recognised him as being the driver of the car they had chased. This is pure recognition and did not justify the evidence being excluded under s.78. However the Courts have drawn a fine line on recognition and the practicability to hold a parade as can be seen by the cases.

See also Samms above.

In R v Brown [1991] Crim. L.R. 368, the victim was robbed by a man whom she saw in limited street lighting only for the last few seconds of the assault. Some ten minutes later she made a positive identification of the robber who was walking in the street. The court stated that Code D, paragraph 2.1 is mandatory, failure to hold a parade when the defendant requests one is a breach of Code D.

In R v Kelly [1992] Crim.L.R. 181, "K" was convicted of attempted rape. The victim was walking home when she was dragged to the ground. "K" was disturbed and the police were called. As she was talking to the police she saw "K" and said, "I think that's him." While "K" was being questioned, the victim was brought nearer to him, where the light was better. She confirmed he was the attacker.

On appeal it was argued that "K" should have been arrested immediately and been given the benefit of a properly conducted identification parade, and, moreover, the identification in this case amounted to a "street identification" (Group). In short the correct "pecking order" had not been followed.

Held, dismissing the appeal, when a complainant made a tentative identification within minutes of her ordeal but in light and at a distance which made identification difficult, the natural and sensible reaction was to take her closer for a better look.

The situation was covered by the case of Oscar [1991] Crim.L.R. 778, in which a witness saw a man wearing distinctive clothing, attempting to break into premises. The police were called and a few minutes later the defendant was arrested nearby, crouching behind a car. The witness immediately recognised the defendant.

In R v Fergus (1991) The Times, 11 November 1991, the victim claimed to recognise his assailant as a person whom he did not know well but had seen just a few times before. The Court of Appeal held that it must be treated as evidence of identification and not recognition. In such a case an identification parade should be held and the prosecution should not be allowed to make a dock identification. The bottom line is that there is a difference between recognition and identification and where a victim does not know the offender well - an identification parade should be held.

In R v Ryan [1990] Crim.L.R. 50, the only evidence of identification was that "R" was recognised by a female witness as the brother of a classmate. She said she had seen him at the school gates on two or three occasions. No identification parade had been held. "R" was convicted. The Court of Appeal dismissed the appeal and expressed the view that in cases of personal recognition rather than identification, it would be rare for the Court to interfere.

It had been submitted that if the Court felt there should have been a parade and that its absence was fatal to the conviction, they would be laying down a principle that, whenever there was a dispute between witnesses and a defendant as to whether there was or was not a previous acquaintance, there had to be a parade. Their Lordships said they were not laying down any such principle.

More Recent cases are.

D v DPP, (1998) The Times, 7 August QBD, "Identification Parade was Not Necessary".

Where a witness had informally identified suspects by reference to clothing and approximate ages and where the suspect requested but was not given an opportunity to participate in an identification parade, in breach of paragraph 2.3 of Code D of the Police and Criminal Evidence Act 1984 (s.66) Codes of Practice and the informal identification evidence was admitted, such a breach did not have an adverse effect on the fairness of proceedings.

The Queen's Bench Divisional Court so held in dismissing an appeal by way of case stated against the conviction by Youth Court on March 19, 1998 of D of theft contrary to sections 1 and 7 of the Theft Act 1968.

R v Popat, (1998) The Times, April 10, Court of Appeal, Parade not required after proper identification. Popat is reported fully in Police Journal Volume LXXI, number 3, July/September 1998, page, 275, also an excellent article, the "Informal identification and the Perils of Oscar" is published at 163 JPN 24 (Number 2 January 1999).

Where a suspect had been properly and adequately identified by a complainant the identification was complete and there was no requirement for the police to hold an identity parade. There was therefore no consequent breach of paragraph 2.3 of section D of the Police and Criminal Evidence Act 1984 (s.66) Codes of Practice.

The Court of Appeal so held dismissing the appeal of Popat against his conviction on July 21, 1997 at the Central Criminal Court for one count of attempted rape and intimidating a witness, two counts of indecent assault.

Regina v Byron (1999) The Times, 10 March, Court of Appeal, "Description not Identification"

Evidence of a factually descriptive nature which in the context of other evidence in a case was highly probative did not make it evidence of identification.

Where the prosecution was unable to call identification evidence because of its failure to hold an identification parade, that did not prevent it from calling descriptive evidence.

The Court of Appeal, so held on February 12 when dismissing an appeal by Byron against his conviction before Mr Justice Astill on February 10, 1998 at Crown Court of murder, causing grievous bodily harm with intent and assault occasioning actual bodily harm.

• "Internet Law Book Reviews" Rob Jerrard