Pre-trial Identification + Breach of Code D PDF

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Summary

My own notes prepared for Exam in May 2017...

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2. Pre-trial identification procedures Identification Evidence cover 2 areas: 

Turnbull warning – It is only relevant where the prosecutor case is based on identification of evidence by eyes-witness. R v Turnbull sets out the mandatory directions which should be given to members of jury in cases of disputed identification

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Pre-trial identification safeguards are governed by Code D under the Police and Criminal Evidence Act PACE (1984).

Code D of the Police and Criminal Evidence Act PACE (1984) is a second means of reducing the risk of miscarriages of justice deriving from mistaken identifications. Code D of Police and Criminal Evidence Act PACE (1984) contains the safeguards against mistaken identification and it is used as a pre-trial identification by police. Pre-trial identification by police:   

Tests the ability of witness to identify the suspect Provides safeguards against mistaken identification Provide a Turnbull warning

Why do we have identification? The answer is in paragraph 1.2 of Police and Criminal Evidence Act PACE (1984) Code D: Identification by an eye-witness arises when the witness who has seen the offender committing the crime and is given an opportunity to identify a person suspected of involvement in the offence in a video identification, identification parade or similar procedure. These eye-witness identification procedures done by police officers are designed:  

To Test the witness’ ability to identify the suspect as the person they saw on a previous occasion. To provide safeguards against mistaken identification.

Code D is meant for police about how to conduct procedures in prosecution case and code is used to rectify identification of procedures.

Why we use identification of procedure is found in paragraph 1.2 and when to use identification of procedure is found in paragraph 3.12. When to apply paragraph 3.12  when police refuses to conduct identification procedures.

Code D is meant up of important annexes:     

Annex A – Video Identification Annex B – Identification parade Annex C – Group Identification Annex D - Confrontation Annex E – Photograph: Identify suspect by mean of photograph.

Pre-Trial Procedures: Code D provides that the suspect will normally be offered a video identification parade electronic recording. The discretionary exclusion under s78 PACE applies to exclude prosecution evidence where the correct procedures have not been followed. The Code D sets out procedures (Annexes A- E) for 3 Situations:: 1. Where the suspect is known and available. 2. Where the suspect is unknown. 3. The suspect is known but is unavailable

3 situations to determine the types of identification procedures evidence to use: 1. Where the suspect is known and is available: as per Code D paragraph 3.4 First identification used by police is video identification – Annex A. Second identification used by police is parade – Annex B. Third identification used by police is group identification – Annex C. 2. The Suspect is unknown: as per Code D paragragh 3.2 + 3.3 The suspect is unknown and according to Code D paragraph 3.2, when the suspect’s identity is not known, the witness may be taken to a particular neighbourhood or place to see whether they can identify the person they saw on a previous occasion.  

The police takes the witness for a round in the neighbourhood to identify the suspect. The police has to show a collection of photographs in the police station gallery.

The witness can identify the suspect according to code D paragraph 3.3 by means of photograph as per annex E. The witness comes to police station and the police will then open the book known as “Roque Gallery”. It is a book where all accused are found in it.

3. Where the suspect is known but is unavailable: as per Code D paragragh 3.21 The police will conduct a video identification, group identification or confrontation (face-to-face and where no consent of suspect).

Annex A: Video Identification According to Code D Annex A Paragraph 1, the officer investigating the crime cannot organise an identification procedure. If he does so, it will be a breach of the code. According to Code D Annex A Paragraph 2, on that video, the set of image must include 9 persons at all in the footage that is the suspect and at least 8 other persons must be included in this footage video. Only one suspect shall appear in any set. If there are 2 suspects of roughly similar appearance in which case they may be shown together with at least 12 other persons. According to Paragraph 7, the suspect or their solicitor must be given a reasonable opportunity to see the complete set of images before it is shown to any witness. If the suspect has reasonable objection to the set of images or of any participants and in order to ensure fairness, the suspect will be ask to state a reason for objection and the police will take action to remove objection. The Accused/suspect has been given a right to object in order to ensure fairness. The suspect will be informed why the objection cannot be removed.

Conducting Video identification:

According to paragraph 10, before the witnesses see the set of images, there must be no communication between witnesses. According to paragraph 11, not all witnesses together must see the image but one by one to see the set of the images at a time in order to ensure fairness of the witness. Witness may request to see video again and again. According to paragraph 12, the witnesses should be asked not to make any decision until they saw the set of image and until they had seen it at least twice. According to paragraph 17, all procedures have to be documented.

Annex B: Identification Parades Identification parades procedure is used to test the ability of witness and then witness must be able to identify the suspect they saw before. Important Paragraph: 1, 2, 3, 6, 8, 9, 11, 13, 14, 15, 20 Paragraph 20: After an identification parade, the witness makes an identification and then the suspect and his solicitor must be informed.

Annex C: Group Identification 2 situations:  

Where the suspect consent to the group identification. Where the suspect does not consent to the group identification

Important paragraphs: Paragraph 2, 3 – To ensure fairness, 4, 5, 6, 7, and 18

Annex D: Confrontation by a witness Paragraph 1, 3 & 4 As per paragraph 6, Confrontation must take place face to face in the police station as per paragraph 6.

Annex E: Showing Photograph

Paragraph 1 Paragraph 3: Only one witness shall be shown photographs at any one time since it is a private matter. Paragraph 4: The witness shall be shown not less than 12 photographs at a time. Paragraph 5: He can only give his version only after having viewed the photographs. Paragraph 6: Once an identification by witness has been made by means of showing photographs, the other remaining witnesses are not allowed to be shown photographs

Why and when the police organise an identification of procedures? We must look at paragraph 3.12 of Code D PACE (1984):   

Para 3.12 (i) Para 3.12 (ii) – In other words, the witness is asking an identification procedure. Para 3.12 (ii) - Or where there is a reasonable chance of the witness being able to do so and they have not been given a chance or opportunity to identify the suspect before.

Witnesses may be present that is they may be asking for identification procedure The police is under an obligation to hold an identification procedure unless the suspect disputes/ denies being the one that the witness claimed to have seen before (Turnbull). There is no obligation to hold an identification procedure if it is not practical. For example, the suspect is on holiday in England. It is also not required to hold an identification procedure if it would serve no purpose in proving or disproving whether the suspect was involved in the offence. For example: It is not disputed/ challenged that the suspect is already well known to the witness who claimed to have seen them committed the crime. It is further divided under paragraph 3.13 that an identification procedure may also be held if the officer in charge of the enquiry considers it to be useful.

 R v Gayle (1999):

An identification procedure is not required where evidence is of description. Identification procedure is not required where a witness had not formally or informally identified the suspect.

 R v Byron (1999): An identification procedure is not necessary where the witness observed the witness throughout the commission of the offence. Otherwise, the witness will have a good view of the suspect.

 R v Nicholson (2000): There is no need for an identification procedure where the witness states that he cannot identify the suspect and can give either no description or a description of such generality that a parade would not take the matter any further.

 R v Kelly (1992): Code D does not apply to identification procedures that are made at the crime scene only a short time after the commission of the offence.

 P v Popat (1998): This was approved in Popat No2 (2000). The CoA held that holding an identification procedures are not required where a suspect has already been properly and adequately identified by a relevant witness or where that witness has already made an actual and complete identification of the suspect. Where an identification procedure is not disputed that the suspect is already well-known to the witness who claimed to have seen the suspect committing or commanding the crime.

Consequences of breach of Code D:

Failure to comply with these provisions under code D can be the basis for an application under s78(1) of Police and Criminal Evidence Act PACE (1984) to exclude evidence on which the prosecution proposes to rely. Breach of Code D may lead to exclusion of unfair evidence under s.78(1) of PACE 1984. Breaches of Code D can result in the exclusion of identification evidence under s78(1) of Police and Criminal Evidence Act: PACE (1984).  This is because failure to observe the Code can affect or undermine the reliability of the evidence, and reliability is an important consideration in the application of s.78(1). Breach of Code D may be unreliance. Section 78(1) of PACE 1984: The fact that there has been a breach is not enough for the court to exclude evidence. The breach per say will not lead to the exclusion of evidence and will not make the proceeding unfair.

 R v Kelly: The case shows that failure to comply with code D will not necessarily lead to the exclusion of the identification evidence.

 R v Grannel (1989) It was held that no unfairness arose from the failure to explain to the suspect prior to identification exercise, such matter as to the purpose of identification and the procedure for holding it Recall: under Annex B: explain the suspect of the identification procedure and here in this case an identification procedure was not done.

 R v Ryan: It was held a breach of the Code D, that is an officer involve in an investigation of the case to park the identification procedures, has caused prejudice to the Accused. It was an investigation officer in this case and there was no identification procedure.

Breach must render trial unfair if there has been a breach + the effect of that breach. No significant breach – Therefore, identification procedure evidence are allowed in.

Significant breach justifies excluding the identification evidence under s78 of PACE 1984. Rather significant breach can be remedied by giving a Forbes warning.

Forbes Warning Breach must render trial unfair if there has been a breach + the effect of that breach. No significant breach – Therefore, identification procedure evidence are allowed in. Rather significant breach can be remedied by giving a Forbes warning. Significant breach which justifies excluding the identification evidence under s78 of PACE 1984.

Forbes (2001): Even where breaches of Code D do not justify the exclusion of identification evidence, the judges may require appropriate warnings to be given to the jury and the leading case is Forbes (2001). This case concerns an attempted robbery. The victim of attempted robbery made a strict identification of the suspect. A request for an identification parade was refused. Accused was convicted and appealed. The appeal was dismissed as even though there should have been an identification parade. The conviction was safe in this case. HoL said that an identification parade should always be held where the identification is disputed/denied or challenged.

Forbes warning: The judge should tells the jury that it should give the breach such weigh as to forbid.

Consequences of Forbes:

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Even where the breaches of the code D do not lead to exclusion of an identification of evidence, it may require an appropriate warning from the judge to the jury if the evidence is adduced to the jury.

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Regarding Forbes warning, the judge should tell the jury that they should give the breach such weight as the forbes fit.

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Ratio: Following the decision in Forbes, ode D was amended to include more flexibility. The words “unless” has been used. – Flexibility: paragraph 3.12

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Even where there is a breach, the Judge must give a Forbes warning.

Cases where there is no observation and no compliance with Code D PACE 1984:  An important case on the consequences of non-compliance with the provisions of Code D is Gorja (Ranjit) (2010) : This case of Gorja is used where non-compliance with the provisions of Code D led to the exclusion of evidence. On appeal, the Court disapproved the 1st court of instance judgment. Two co-accused, Gojra and Dhir (tenant & landlord), were convicted for the number of offences. The victim was Mohammed Nawaz and his brother Haq Nawaz. The co-accused assaulted the 2 brothers. Gojra appealed against his conviction and so did dhir. The reason for Haq was not given to witness against Gojra. The court remarked and held a non-observation of Code D. The judge went wrong in failing to exclude identification evidence. The judge failed to give the jury the appropriate direction upon the omission by the police to hold an identification parade in the case of Haq Nawaz. The prosecution said that there was no need to organise an identification parade because the Accused never gave indication that they disputed/ denies their identification evidence by witnesses (M.Nawaz & H.Nawaz) It is only at the last minute that Gojra raised issues of identification so that there is insufficient evidence to hold it away.

In other words, Gojra had deprived himself of the safeguards of the code of practice since it holds identification procedures in certain circumstances, there has been no breach of code D. The police stated that no identification procedure was held since the police felt that the jury had enough evidence against Gojra. Court was of view that it constitutes a breach of the court which case prejudice to him.

The code is designed to safeguard against mistaken identity and to test the reliability of the evidence. Therefore, Gojra lost the chance that Haq Nawaz would either not have picked him out or would have picked out another volunteer in the identification procedure. Therefore, the jury ought to have directed the jury on the consequences of this breach of code. The court was of view that H.Nawaz should have been at the identification procedure. Gojra conviction was quashed as unsafe. He succeeded on his appeal.

 Where a non-observance of Code D led to the exclusion of evidence R v Hallam: The conviction was quashed and the reason is due to non-observance of code D....