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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> McKenna v Director of Public Prosecutions [2005] EWHC 677 (Admin) (08 April 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/677.html Cite as: [2005] EWHC 677 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		8th April 2005

1. MR JUSTICE NEWMAN: This is an appeal by way of case stated from the Crown Court sitting at Maidstone (Miss Recorder Peat and justices) on appeal from the Mid-Kent Magistrates' Court. On 28th January 2004 justices acting in and for the Petty Sessional Division of Mid-Kent found the appellant guilty of two offences, namely driving whilst disqualified, contrary to section 103(1)(b) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988, and driving without insurance, contrary to section 143 of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988.
2. The facts of the case were as follows, as taken from the case stated. The appellant was alleged to have been the driver of a Mazda motor vehicle, index number L173 UGT, at Barton Road, Strood, Kent, on 26th April 2003. The case for the prosecution turned on the evidence of an off-duty special constable, Pamela Newlyn. She was in premises off Barton Road on the day in question, namely the premises known as "Allround Cars". From that position she had watched the Mazda drive along Barton Road and park. She saw the driver alight from the vehicle and walk to the car repair shop where she was, namely "Allround Cars". She was present when the driver spoke to a mechanic within the workshop regarding damage to the Mazda's wing mirror. The driver did not appear to recognise her.
3. The police officer believed the person she saw driving the vehicle, alighting from the vehicle and coming into the premises to be someone she knew as Jason McKenna. She had known him some 14 years earlier when she had worked for a firm of solicitors in Chatham in Kent. She had seen him on numerous occasions at that time. In the witness box she explained that she had seen him "a couple of times over a two-year period" and that since about 1990 she had seen him in passing "possibly once" but she had not spoken to him. The sighting that she made led her to conduct police checks. She discovered that a person known as Jason McKenna was disqualified from driving.
4. Some weeks later, on 3rd July 2003, the appellant was arrested. When interviewed under caution, he denied that he had driven the Mazda on the date in question. He acknowledged that he had previously owned the Mazda and that he was a patron of Allround Cars, where work had been carried out on his vehicles. He stated that he had never known anybody known as Pamela Newlyn. After the interview he was charged, but no identification procedure was held, namely no identification parade.
5. As a preliminary issue in the course of the hearing in the Crown Court, the appellant sought to exclude the evidence of the police officer and the purported identification of Jason McKenna pursuant to section 78(1) of the Police and Criminal Evidence Act 1978.
6. The issues as they now are before this court on the case stated are, firstly, whether the failure to hold an identification parade constituted a breach of the code issued under PACE (D:3.12), and, secondly, whether the evidence should have been admitted.
7. The Crown Court determined the first issue in favour of the prosecution. It decided that there had been no breach of the Code. As a result it was not necessary for the court to go on to exercise its discretion as to whether or not to exclude the evidence under section 78.
8. The submission for the appellant is straightforward enough. It is that, in accordance with the Code, there should have been an identification parade. The relevant paragraph of Code D, paragraph D:3.12, under the heading "Circumstances in which an identification procedure must be held", is as follows:

"Whenever:

(i) a witness has identified a suspect or purported to have identified them prior to any identification procedure set out in paragraphs 3.5 to 3.10 [video identification, identification parade, group identification] having been held; or

(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 parade 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."

9. The appellant submits by Mr Stern, who has appeared for him today, that, on the facts as they were before the court, the court should have concluded that the person Jason McKenna was not well known to the witness, Special Constable Newlyn, because there were frailties surrounding the quality of her evidence which meant that she should not be regarded as a person who was so familiar with the suspect as to make him well known to her, because, as the evidence shows, she had known him 14 years earlier when she had worked for the firm of solicitors and had seen him on a couple of occasions over a two year period and possibly once since about 1990.
10. The submission advanced against that is that there is no frailty in the evidence of this police officer. Firstly, this was a recognition case and not an identification case, the evidence showed that she had known him over a long period of time, and this was recognition by a special constable. As a result it is submitted the court was entitled to conclude that no useful purpose would have been served by having an identification parade.
11. In my judgment, the matter can be very shortly considered by reference to the judgment of the House of Lords in the case of R v Forbes [2001] 1 Crim App R 430, and in particular by reference to paragraphs 26 and 27 at page 442 to 443 of the speech of Lord Bingham of Cornhill. The salient features to emerge from the case, which need to be emphasised, are that the Code must be regarded as imposing a mandatory obligation on the police: it is described as a "hard-edged mandatory obligation". It serves to provide protection to an individual to avoid miscarriages of justice as they have been recognised as occurring in the course of cases where the evidence for the prosecution depends, to a large extent, upon identification evidence. At paragraph 27 the following observations are made:

"If an eye-witness of a criminal incident makes plain to the police that he cannot identify the culprit, it will very probably be futile to invite that witness to attend an identification parade. If an eye-witness may be able to identify clothing worn by a culprit but not the culprit himself, it will probably be futile to mount an identification parade rather than simply inviting the witness to identify the clothing. If a case is one of pure recognition of someone well-known to the eye-witness, it may again be futile to hold an identification parade. But save in cases such as these, or other exceptional circumstances, the effect of paragraph 2.3 is clear: if (a) the police have sufficient information to justify the arrest of a particular person for suspected involvement in an offence, and (b) an eye-witness has identified or may be able to identify that person, and (c) the suspect disputes his identification as a person involved in the commission of that offence, an identification parade must be held if (d) the suspect consents and (e) paragraphs 2.4, 2.7 and 2.10 of Code D do not apply."

12. The only other observation one would make in connection with this case is that this is not a case in which the suspect is presented by or would have been presented by the police to the witness; this is a case in which the witness, in effect, presented the suspect to the police. But that distinction has been held to be, whilst valid, of no import when considering the application of the Code.
13. In my judgment, the evidence here, stemming as it did from knowledge and familiarity with a person 14 years beforehand and refreshed only by limited occasions and maybe only once since about 1990, with no conversations having taken place, failed to establish a basis of contact which entitled the fact-finder to reach the conclusion that the suspect was well-known to the witness. I only add that the position may well have been different had the incident itself arisen at an earlier stage in the passage of years with which the evidence is concerned.
14. I therefore turn to the second issue. As is well-known, section 78 imposes a requirement on a court to consider whether the admission of evidence would have such an adverse effect on the fairness of the proceedings, that the court ought not to admit it. In this regard the factors which appear to this court to be relevant are as follows. The appellant was seen by police in July 2003, thus a matter of weeks after the alleged offence in April 2003. Such a period of time is not so long after the event as to make it obvious that a suspect would not be in a position to give some evidence as to where he was at the material time if he was not at, as it happened in this case, the garage. So far as the evidence went, it does not appear that he had any difficulty when it was put to him in denying that he had driven the Mazda on the date in question, thus there cannot be any suggestion that he was not able to remember the date in question which provided him with the basis for his denial. One would expect him to have been able to provide some material, or at least indicate that he was in a position to provide some material, to support the denial. His case by way of defence that he had owned the vehicle at one time and that it had been sold, one can infer, was something which was capable of being supported by some evidence - if not documentary evidence, evidence from someone disclosing to whom he had sold the car.
15. In terms, therefore, of the overall fairness surrounding the allegation which he had to meet, I am satisfied that considering the time at which he was given notice of the allegation and the nature of his defence to it, he was not deprived of a reasonable opportunity of establishing his defence. But one can go further. The court was entitled to consider that if the appellant was not at the garage, a number of coincidences followed: the car which he had owned was at the garage, being driven by someone who had occasion to go to that garage, to whom he had sold the car, who, it can be inferred, was likely to have looked like him and also who, like him, was a patron of the garage.
16. When one comes to consider the fairness of the position under section 78, one looks at all the evidence. As Mr Connolly submitted, one looks first of all at the fact that this was evidence of recognition rather than identification. It was thus capable of being regarded as more reliable than evidence of identification by a stranger. Looking at the quality of the recognition evidence, it can be fairly described as from its circumstances good recognition evidence because it was not a fleeting glance type of case or made under difficult conditions - it occurred in daylight over a period of time during which the witness was able to see and listen to the suspect. The recognition was made by a special constable, someone involved in the criminal justice system who is likely to have a greater appreciation of the importance of identification, by an honest police officer, where it can be inferred it is likely to be more reliable than otherwise, and where the training of police officers is something which is relevant to be taken into account. But more than that, and in my judgment most potently, the fact that the appellant admitted in interview that he had previously owned the vehicle which the police officer had seen being driven on the day in question and, even more, that he admitted that he did use the garage where the incident of driving and observation took place, all lead to the conclusion that this is not a case in which the admission of this evidence has led to an injustice to the appellant. The fairness of its admission is, in my judgment, borne out by the factors I have summarised.
17. It follows that so far as the questions posed on this appeal are concerned, the answer to the first question, whether the Crown Court was entitled to find that the failure to hold an identification procedure was not a breach of PACE Code D:3.12, is "no". The answer to the second question, "Whether, if we were not entitled so to find, we ought to have excluded the evidence of SC Newlyn's purported identification of Jason McKenna pursuant to PACE, section 78(1)", again the answer is "no". For those reasons, this appeal is dismissed.
18. MR JUSTICE NEWMAN: Any other consequential applications?
19. MR CONNOLLY: No, thank you.
20. MR STERN: Can I just, in an abundance of caution, confirm the position. I am acting for a publicly funded client.
21. MR JUSTICE NEWMAN: You mean, you need a certificate?
22. MR STERN: Yes.
23. MR JUSTICE NEWMAN: I do not think so.
24. MR STERN: I feel that, in a spirit, or perhaps degree of ignorance, as to whether I need it --
25. MR JUSTICE NEWMAN: I am not aware that this court needs to say anything about your entitlement. You have a certificate, no doubt, and that is the end of it.
26. MR STERN: Yes, I am obliged.