Director of Public Prosecutions, R (on the application of) v Sweeney

1. MR JUSTICE MOSES: This is an appeal by way of case stated. It is on behalf of the Director of Public Prosecutions. It is unnecessary for me to outline in any detail the facts of this matter because the case stated will be annexed to my judgment and therefore form part of it.

2. The important aspect of the evidence and the context in which the issue arises, is that this respondent who, although notified, does not appear today, Michael Joseph Sweeney, was one of three men who visited the kebab shop where Mr Javed Iqbal was working. Javed Iqbal says that the man who drove the car, making a getaway, and who had previously thrown a battery within a plastic bag through the shop window, was the eldest of the three. Unlike the other two he was not clean shaven and had a scruffy beard. In those circumstances it was said that it could only have been this defendant who was guilty of the criminal damage and indeed of driving the car with an excess of alcohol.

3. However, as is noted in the case stated, that witness said that he knew that man from before and would recognise him. The issue therefore arose as to whether the Code of Practice D3.12(ii) applied. That states: "3.12 ... "(ii) there is a witness available, who expresses an ability to identify the suspect, or where there is a reasonable chance of the witness being able to do so, and they have not been given an opportunity to identify the suspect in any of the procedures set out in paragraphs 3.5 to 3.10, and the suspect disputes being the person the witness claims to have seen, an identification procedure shall be held unless it is not practicable or it would serve no useful purpose in proving or disproving whether the suspect was involved in committing the offence. For example, when it is not disputed that the suspect is already well known to the witness who claims to have seen them commit the crime."

4. It is accepted, on behalf of the Director of Public Prosecutions, that in the light of the evidence of Mr Iqbal that he knew the oldest man, had seen him before, and would recognise him, an identification parade should have been held. The mandatory clear words of the Code, described by Lord Bingham in R v Forbes [2001] 1 CrAppR 430 as a "black line rule", did apply. The only issue in this appeal is whether the justices properly put their mind to their discretion to say, pursuant to section 78, that notwithstanding a breach of the Code no unfairness to the defendant occurred.

5. In the case stated it will be noted that their attention was drawn to section 78 of the Police and Criminal Evidence Act 1984 and that the justices merely say that in those circumstances, for the reasons they gave: "... it would have been unfair to the Respondent to admit the identification evidence given by the witness Mr IQBAL. Section 78 of Police and Criminal Evidence Act 1984 gave us a discretion to exclude that evidence and we therefore excluded it."

6. In reality the justices ought to have looked at the Code and approached the question on the basis that they ought to have excluded the evidence unless they were satisfied that there was no injustice to the defendant by allowing the case to proceed and the evidence to be given, notwithstanding the breach of the Code.

7. In those circumstances they ought to have been reminded of the decision of the House of Lords in R v Forbes , to which I have already referred, and in particular the speech of Lord Bingham.

8. It appears from the way that questions are drafted that they did have in mind certain factors which would count against ruling that, because of the breach, the case should not proceed. They refer to the fact that the defendant admitted his presence at the scene of the incident. He admitted to being one of a group of three matching the description of the offender and that the defendant could be distinguished from the other two members of the group of three in that his appearance was markedly different from theirs.

9. They also refer to the fact that his defence in the taped interview was to assert that the throwing of the bag was committed by another person who was involved in a nearby gun fight. That would not explain why Mr Iqbal said that it was the same man who threw the battery through the window, who had got into the car, undoubtedly travelled in and driven by this defendant and the other two younger people, as the evidence of the police officers who had seen them nearby shortly afterwards confirmed.

10. In short, the justices do not grapple with the countervailing considerations for not excluding the evidence identified in the question they asked at paragraph 7. Nothing in the case explains why it was that there was any unfairness to the defendant, bearing in mind that the reason for his being accused of these particular crimes was because of the very different appearance he presented to the other two with whom he was at the kebab shop.

11. In other words, there was a factor which the justices ought to have taken into account which would have at least required very serious consideration as to whether it was right to exclude the evidence and whether in reality there was any unfairness to the defendant in not excluding it.

12. In particular they should have borne in mind what Lord Bingham said at paragraph 29 of the speech in Forbes , that there will be circumstances where it will not be right to exclude the evidence; in particular, where an eyewitness may be able to identify clothing or some particular peculiarity of the culprit that distinguishes him from others and which does not depend on any identification of his face (see paragraph 27).

13. But I need not say more because none of these issues appear, on the face of the case, to have been considered by the justices before they came to their conclusion. For all I know they may have been, but unfortunately the case does not set out any reasoning that enables this court properly to scrutinise or analyse the basis upon which they excluded this evidence.

14. In those circumstances, in my judgment, the right course is to allow the appeal and order that the matter be remitted to a fresh bench of justices to be reconsidered from the outset. Nothing in my judgment is to be regarded as in any way indicating to the justices how, at the end of the day, they should exercise their judgment as to whether the evidence is to be excluded or not. So long as they consider all the factors one way or the other, bearing in mind that, save in particular circumstances, the Code is to be complied with, they will have done all that is required of them.

15. MR WHITTAM: Thank you.