Neutral Citation Number: [2004] EWCA (Crim) 1478 

Case No: 200304333 B2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT SITTING AT MIDDLESEX GUILDHALL
HIS HOUNOUR JUDGE MATHESON QC

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 16 June 2004
Before :

LORD JUSTICE THOMAS
MR JUSTICE ROYCE
and
HIS HONOUR JUDGE MICHAEL BAKER QC 
(sitting as an Additional Judge of the Court of Appeal)
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Between :

	SULIMAN HASSAN	Appellant	
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	THE QUEEN	Respondent	

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Mr Sean Enright for the Appellant
Mr Anthony Wadling for the Respondent

Hearing date: 24 March 2004
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JUDGMENT: APPROVED BY THE CROWN COURT FOR HANDING DOWN
(SUBJECT TO EDITORIAL CORRECTIONS)

LORD JUSTICE THOMAS : 
1.	On 11 July 2003 at the Crown Court at the Middlesex Guildhall before HH Judge Matheson QC and a jury the appellant was convicted of one offence of violent disorder; he was subsequently sentenced to a Community Punishment Order for 60 hours.  The appellant had been charged with 3 counts of wounding with intent and was acquitted on each of those counts. On the count of violent disorder (on which he was convicted) there were 2 co-defendants Edriss Hassan, the appellant’s younger brother and Mousad Halaimza who were both acquitted.  
2.	The appellant appeals by leave of the Single Judge; the sole issue pursued on the appeal related to the direction given by the learned judge in relation to identification and the failure to hold an identification parade. We have reserved judgment solely because we needed further information which was not available on the day of the hearing. It has taken some little time to arrive.
The facts relating to the violent disorder
3.	On 11 June 2002 there was a serious incident involving groups of Bengali and Afghan youths near the North Westminster Community School and the Westway underpass.  It was a running fight which occurred when children were coming out of school; the incident itself involved somewhere between 15 and 20 youths.  Four of those youths sustained stab wounds.
4.	It was the prosecution case that the three defendants, the appellant, Mousad Halaimzai and Edriss Hassan, became involved in a fight after Mousad Halaimzai had been teased and Edriss Hassan had called up his elder brother, the appellant, and others to help.  During the violent disorder that followed, the appellant had taken out a knife and stabbed three persons.  
5.	It was common ground that the appellant was wearing that day a black Avirex jacket and Moschino jeans; it was the Crown’s case that a person wearing these clothes and identified by some witnesses as the appellant had been present throughout and had inflicted the stab wounds.  It was also the Crown’s case that no one else wearing a black Avirex jacket and Moschino jeans was present.  Only one of the witnesses, Nazir Ali, knew the appellant; he identified him as being present, but without the knife.
6.	It was the appellant’s case that he had arrived at the scene after the fight had taken place; he denied participation.  He agreed to stand on an identification parade.
The failure to hold an identification parade
7.	No identification parade was held. At the trial, it was contended on behalf  of the appellant that evidence of identification should be excluded; it was accepted that if this submission succeeded there was no evidence against the appellant.
8.	At the material time, the provisions of Code D relevant to the proposed identification parade were set out in paragraphs 2.14 and 2.15.  They provided as follows:
“2.14 Whenever a suspect disputes an identification made or purported to have been made by a witness, an identification procedure shall be held if practicable unless paragraph 2.15 applies.  Such a procedure may also be held if the officer in charge of the investigation considers that it would be useful. When an identification procedure is required to be held, in the interests of fairness to suspects and witnesses, it must be held as soon as practicable.
2.15 An identification procedure need not be held if, in all the circumstances, it would serve no useful purpose in proving or disproving whether the suspect was involved in committing the offence.  Examples would be where it is not in dispute that the suspect is already well known to the witness who saw the suspect commit the crime or where there is no reasonable possibility that a witness would be able to make an identification.”
9.	After submissions which had lasted more than a day, the learned judge ruled that there had been a breach of the Code, but exercising his discretion under s. 78 of the Police and Criminal Evidence Act 1984, he permitted the evidence of the identification witnesses to be adduced notwithstanding the breach of the Code. 
10.	In his careful and very clear ruling, based on the decision of the House of Lords in R v Forbes [2000] UKHL 66
i)	 The judge referred to the fact that:
“ I must say that looking through all the statements, so far as I can tell from the statements, with the possible exception of Miss Beattie and possibly Angar Meir, I think the others, if asked, would probably have said that if they went to an identification parade, they would have recognised the person they were describing.”
ii)	He next concluded that there should have been an identification parade: 
“I am with Mr Enright in his submission that this was a case in which an identification parade was required and should have been held.  I have to say that I perfectly understand the difficulty of a police officer having to make a decision about these things and I do not mean to be critical of him, but I believe that his, or someone’s decision, whoever’s it was, that no parade should be held was, in fact, mistaken and was a misjudgement.
“I cannot refrain from observing that had a parade been held, none of this argument would have taken place.  What the result would have been on a parade we will never know, but had a parade been held, none of these arguments, that we have been having yesterday and into this morning, would have been necessary or taken place.  So to that extent I am with Mr Enright in his submission.”
iii)	Nonetheless, he did not think that the admission of the evidence would adversely affect the fairness of the proceedings and therefore admitted it..
The course of the trial
11.	The evidence was then called, including the evidence of identification of the appellant.  In the evidence given by each of those called to give identification evidence, it was stated either during the course of the oral examination or in a statement which was read to the jury, that he would have been able to identify the person in the black Avirex jacket and Moschino jeans if an identification parade had been held. We were told by counsel that there was no evidence in relation to the issue as to why no identification parade had been held.
The summing up
12.	Counsel could not recall, when we asked them, whether there had been a discussion with the judge either as to the form of the direction to be given in respect of the failure to hold an identification parade or on the issue as to whether a Turnbull direction should be given.  
13.	In the light of the closing speeches (to which we shall refer in paragraph 15) and the summing up (to which we shall refer at paragraphs 16), we directed that the record be examined for any discussion between counsel and the judge and that if there were any such discussion, a transcript be provided.
14.	From the transcript of the proceedings which took place before counsel made their closing speeches, it was clear that there was a very brief discussion about whether a Turnbull  direction should be given and a much fuller argument as to whether a direction should have been given in respect of breach of the Code.  The discussion concluded with the Judge stating that he would reflect on whether a Turnbull direction should be given and that he would give a direction in relation to the breach of the Code.  Speeches then followed immediately without these issues having been resolved. 
15.	We were told by Mr Enright, who appeared for the appellant, that he considered the judge had formed an adverse view on the identification issue. It was for that reason that during the course of his closing submissions to the jury on behalf of the appellant he described the decision not to hold an identification parade as “shameful and disgraceful”.  This was in contrast to his submission during the course of the argument on admissibility where, as recorded in the ruling on the admissibility of identification evidence, Mr Enright did not say that the decision not to hold an identification parade had been made in bad faith, even though he criticised it. After Mr Enright’s closing speech, the Judge quite rightly expressed concern as to what had been said in relation to the failure to hold the parade and another matter not material to this appeal. 
16.	In his summing up the judge did not give a Turnbull direction; he directed the jury in respect of identification and the failure to hold a parade in a lengthy direction. It is necessary for us to refer to it in a little detail, in view of the criticisms made of it.
i)	First he directed the jury that there was no issue on identification, but an issue on whether the appellant participated in the incident:
“Well, there is a very important issue for you to try. As you will see --realise, members of the jury of course, if he says he was there and is seen, you know it may be that someone, it is not really a question of identification is it? It is a question of whether he was there doing as he said.
Because, if he was there and was seen, the sums of the identification in the sense of, "That is the person I saw" it has been mainly on the clothing has it not, the Avirex jacket and the Moschino jeans that have been referred to by numerous witnesses.
The real issue is not whether he was there at all or whether he was correctly recognised because he says he was. It was whether he was there in the middle of --- to the material incident, all of which took place in a relatively short space of time.” 
ii)	He then directed the jury as to the failure to hold an identification parade; in the passage set out, the decision in the House of Lords to which the learned judge referred was R v Forbes:
“Now, as you have correctly been told – he does dispute that he was there and to that extent there is an identification dispute. As you have correctly been told by Mr Enright, the law about this is that if identification is disputed then there should be an identification parade and we know that there was not and as Mr Enright again correctly told you, all this was governed by a code, it is part of code D, which is a code, which is amended in the light of experience from time to time, which is made under the provisions of the Police and Criminal Evidence Act 1984 and it owes its origin, this part of it anyway does, as no doubt you are well aware, there have been occasions in the past where cases depending upon identification evidence have turned out to be serious miscarriages of justice. 
And so that is one of the reasons why the code deals with this and it does, indeed say, in terms that "whenever a suspect disputes an identification made or purported to have been made by a witness, an identification procedure shall be held if practicable". Well, I know it was suggested that it was not practical to hold one, however, and that is a mandatory requirement and that has been recently affirmed by the House of Lords at the moment at any rate because you are aware of the fact that there are proposals that they should be replaced by a new supreme court. 
But the House of Lords is, at the moment, the highest court in the country, the House of Lords has reaffirmed that the basic rule is that it is mandatory to hold an identification parade in the circumstances envisaged. 
However, like virtually every rule that there ever was, it is subject to exceptions and in fact, code D, paragraph 2.14, which I have just been reading from says, "Unless paragraph 2.15 applies". 
So, what does 2.15 say? "An identification procedure need not be held if, in all the circumstances, it would serve no useful purpose of proving or disproving whether the suspect was involved in committing the offence. An example would be where it is not in dispute that the suspect is already well known to the witness who saw the suspect commit the crime or where there was no reasonable possibility that a witness would be able to make an identification." If it would be a pointless exercise you are not required to do it. 
Well the possible exceptions can, and the code does not set out to define exactly when the situation in which it would not be necessary, it says examples may mean. You have really to look at the individual situation. 
In the case that I have been referring to, the judgment in the House of Lords has this passage, ‘If an eyewitness 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." 
And then this sentence, "If an eyewitness 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." Then there are references to pure recognition of someone you know very well. 
Well now, as Mr Enright said, and so far as the clothing is concerned of course the basis of the Crown's case, with one or two exceptions, do not forget Nasir Ali knows him as Simon and he gave evidence of having come face to face with him and Suliman agrees that they did come face to face and they had some conversation, which I shall be dealing with when I remind you of the evidence but essentially the evidence on which the Crown relies is the clothing, the Avirex jacket and the Moschino jeans. 
But, and that is one of the examples given in the House of Lords in their judgments, of when it is futile to hold an identification parade if the witness is going to be able to recognise the clothes and not the person. 
But you may have picked up indications, ladies and gentlemen that many witnesses if asked the question, “Would you recognise this person again” would probably have answered, "Yes". 
Now, as Mr Enright has rightly said, it is not a one-way process, identification parades. It is not purely for the benefit of the prosecution to have the suspect picked out. If the witnesses do not pick out a suspect that may be of assistance to the defence. It is just as important to the defence and he says Mr Hassan said in terms, in his interview that he was willing to stand on an identification parade but no identification parade was held. 
Well, ladies and gentlemen, there it is. The point is taken, I have had to consider it and as I say, there is this element, of course that they recognise him by the clothing but that may not be all ---my conclusion, as a matter of law, is that the decision by the police not to hold an identification parade was a misjudgement and in fact it should have taken place. 
That is not to say, members of the jury that I do not suggest and all respect to him; that Mr Enright's description of the decision “shameless and disgraceful”, you may well feel that that is going way, way over the top. I think it was an error but there it is and the consequence is of course that we shall never know whether the witnesses were to pick out Suliman Hassan on the parade or not or whether they would not have done. 
All I can say to you is that you will have to decide the evidence of this case on the evidence that you have got and apply it on the burden and standard of proof but there it is; that point is made and there is --- it is right to say that identification parades are not entirely for the benefit of one side or the other. They can apply it on either side, as I have indicated.”
17.	The judge then proceeded to summarise the evidence of each of those witnesses who had given evidence of identification, pointing out where appropriate specific weaknesses in the identification evidence they had given.
18.	Nothing was said to the judge at the conclusion of his summing up as to the fact he had not given a Turnbull direction.
The submissions made
19.	The submissions made can be summarised under five headings:
i)	The issue before the jury. Counsel for the appellant contended that the summing up failed to identify what the issue was which was before the jury. As is apparent from the passage we have set out at paragraph 16.i) the learned judge told the jury that it was “not really a question of identification is it? It is a question of whether he was doing as he said”, but he also said “now as you have been correctly told – he does dispute that he was there and to that extent there is an identification dispute.”  It was submitted on the appellant’s behalf that a Turnbull direction should have been given. Counsel for the prosecution submitted that the issue in the case was one of participation by a person who admitted being present at some stage; there was no real question of identification.
ii)	The references to PACE and the Code. There had, we were told, been no references to PACE or to the terms of the Code during the course of the trial during which the jury were present.  It was submitted on behalf of the appellant that the passage in the summing up where the judge at some length referred to the terms of paragraph 2.14 and 2.15 was confusing to the jury.
iii)	The reference to paragraph 2.15 of the Code. It was submitted on behalf of the appellant that as the judge had already come to the clear conclusion that a parade should have been held and there had been a breach of the Code and as the issue had not been revisited in front of the jury, it was wrong of him to have introduced before the jury paragraph 2.15 of the Code. Therefore referring to the question as to whether a parade need have been held at all served no useful purpose; it must have confused the jury. As the judge had already ruled that a parade should have been held and the trial had proceeded on that basis, there was simply no issue for the jury as to whether or not it was practical to hold a parade.
iv)	The reference to specific passages from the speech in Forbes: The Judge, as is apparent from the passage we have set out above cited two passages from the speeches in the House of Lords in Forbes dealing with circumstances where it was unnecessary to hold a parade; the passages gave as examples the situation where an eyewitness had made it plain he could not identify the culprit and where the witnesses had made plain they might be able to identify the clothing, but not the culprit.  It was submitted that these were not issues, on the evidence, before the jury.
v)	The totality of the passage in the summing up set out in paragraph 16. It was submitted on behalf of the appellant that taking as a whole the passage in the summing up, which we have set out, it was extremely confusing for the jury as it did not identify the significant issue for them to understand.
  Our conclusions
20.	We should first point out that:
i)	This was not a case where a Turnbull direction was needed on the basis of the evidence before the jury.  This was not, on the evidence actually given, a case where there was a dispute as to the identification by the visual appearance of the appellant (though that might have been the case if a parade had been held);  the identification of the person holding the knife had been by  his clothing. A Turnbull direction was not therefore necessary – see  R v Gayle [1999] 2 Cr App Rep 131, and R v Doldur [2000] Crim LR 178. We therefore do not need to consider what form of warning should have been given if the issue had been a dispute over participation where the dispute turned on the identification by visual appearance: see the cases discussed in Archbold (2004 edition) at paragraph 14-16.
ii)	As to the direction on the breach of the Code, the judge did refer to the evidence given by the witnesses that, if they had seen the person again, they would have recognised him. He reminded them that, as a matter of law, the identification parade should have taken place and there had been a misjudgement by the officer. He told them that identification was not a one-way process and if a witness did not pick out a person, that was important to the defence; the jury would not know the consequences of the failure to hold a parade in that they would never know whether the witnesses were able to pick out the appellant.
21.	Furthermore, in the light of the speech made by Mr Enright to the jury, the Judge had to say something about the reason for the failure to hold the parade, even though it was not an issue before the jury. 
i)	First, Mr Enright had drawn to the Judge’s attention the passage in Forbes (which we set out at paragraph 22.i) in which Lord Bingham gave guidance to judges as to how to direct the jury where there has been a breach of the code. The Judge had agreed to give such a direction. 
ii)	Second, it was in these circumstances, in our view, wrong of Mr Enright to have characterised in his speech to the jury the decision of the police not to hold an identification parade as “shameful and disgraceful”. He candidly told us he made that reference because of the view he believed the judge had taken in respect of the identification evidence and wished to get his point in first before, what he believed would be, a hostile summing up. He accepted before us that he should have adopted a more measured approach.  However, as the judge had ruled that there had been a breach of the Code, and the question as to why there had been a breach had not been one canvassed in evidence and the Judge had agreed to give an appropriate direction, the question as to why there was no parade was not an issue in this case which was before the jury. He should not have said what he did, but in the light of his concession before this court, we need say nothing further. 
iii)	In the circumstances, the Judge was compelled by Mr Enright’s conduct to revisit the question of whether a parade should have been held. It was necessary for him to tell the jury that he had ruled that an identification parade should have been held; the trial had been conducted on the basis that that issue was decided and no evidence was called as to why no parade had been held. There was therefore no issue before them as to whether it would have been futile to hold the parade and they should therefore put out of their minds the issue raised by Mr Enright.
22.	However in our judgment although no Turnbull  direction was necessary and the points set out in paragraph 20.ii) in relation to the Code were covered, some criticism of the summing up can be made.
i)	The terms of the direction on the consequences of the failure to hold a parade were not as clear as they might have been. The guidance given to Judges in R v Forbes at paragraph 27 by Lord Bingham of Cornhill on how to deal in their summing up with cases where there had been a failure to hold an identification parade was very clear:
“The appellant also had a substantial complaint that the recorder did not direct the jury that there had been a breach of the Code or give any direction on the effect of that breach.  It is in our judgment important that the position should be clear.  In any case where a breach of Code D has been established but the trial judge has rejected an application to exclude evidence to which the defence objected because of that breach, the trial judge should in the course of summing up to the jury (a) explain that there has been a breach of the Code and how it has arisen, and (b) invite the jury to consider the possible effect of that breach.  The Court of Appeal has so ruled on many occasions, and we approve those rulings: see, for example R v Quinn [1995] 1 Cr App R 480, 490F.  The terms of the appropriate direction will vary from case to case and breach to breach.  But if the breach is a failure to hold an identification parade when required by Code D, paragraph 2.3, the jury should ordinarily be told that an identification enables a suspect to put the reliability of an eyewitness’s identification to the test, that the suspect has lost the benefit of that safeguard and that the jury should take account of that fact in its assessment of the whole case, giving it such weight as it thinks fair”.
ii)	In formulating the direction based on that guidance, the judge should simply have taken into account the facts that (1) there had been no evidence before the jury on the issue of whether there should have been an identification parade and (2) the evidence of each witnesses was that he would have been able to recognise the person if an identification parade had been held. Taking those two matters into account the direction of the jury could have been quite short:
a)	The judge could have referred to the purpose of an identification parade.
b)	He could have simply stated there had been a failure and that they should have put out their minds speculation as to why there had been a failure.
c)	He could simply have then explained the effect of the failure and reminded them of the evidence that had been given.
d)	He could then have stated that the appellant had lost that benefit and how they were to treat it was a matter for them.
iii)	In considering the passage complained of as a whole, we can see that with the benefit of a more focussed discussion before speeches and a clear identification and resolution of the issues at that stage, a shorter and more focused direction on the effect of the Code could have been given as we have suggested. 
iv)	However considering the passage which we have set out, all the points we consider should have been made to the jury were in fact made. The fact that the judge may have dealt with the reasons for the failure to hold the parade at a length that was clearly unnecessary was, as we have said, brought about by Mr Enright’s conduct in opening an issue which should not have been opened in the light of the discussion before speeches.  Thus, although some criticism can rightly be made of this part of the summing up, we do not consider there was a misdirection.
23.	We have considered, whether looking at the direction which we have considered at some length and the whole of the summing up, it could be said that the conviction was unsafe. We do not consider it was and therefore dismiss the appeal.