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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Marcus, R. v [2004] EWCA Crim 3387 (23 November 2004) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2004/3387.html Cite as: [2004] EWCA Crim 3387 |
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CRIMINAL DIVISION
Strand London, WC2 |
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B e f o r e :
MR JUSTICE DAVIS
THE RECORDER OF CARDIFF
(His Honour Judge Griffith Williams QC)
(Sitting as a Judge of the CACD)
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R E G I N A | ||
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RUEL MARCUS |
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Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR M BURROWS appeared on behalf of the CROWN
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Crown Copyright ©
"The decision had been made that, in the event of a witness being unable to make an identification from the masked images, he or she would then be shown one of the unmasked compilations. Inspector Handley, the officer who conducted the procedure, informed Mr Marcus' representative of that intention. She objected, both then and at the end of the procedure, arguing that it was in breach of Code D and was tantamount to a confrontation. Inspector Handley overruled the objection.
The decision to proceed in this way had, it seems, been taken after discussion with the CPS, there having been some disquiet amongst operational police officers about the inadequacies of video procedures where the witnesses had found it impossible to make identifications from obscured images. The discussion had not arisen in the present case but was of a general nature. The police decided, having received that advice, to proceed in this way in this case and to leave it to the trial judge to determine whether the evidence should be admitted."
We find it wholly extraordinary, quite aside from anything else, that it was decided not to inform the defence of this remarkable procedure until immediately before it was actually undertaken.
"In cross-examination Inspector Hunt admitted that Mr Marcus's features were unusual and could not find similar volunteers on the database. He admitted that the unmasked procedure came about by operational officers claiming that masking led to poor results and as a result the CPS had advised acting Detective Styles to implement a new procedure of showing an unmasked tape to volunteers where no identification had been made. He accepted that the new procedure was not envisaged by Code D and that because of the appearance of the other volunteers Mr Marcus would, 'blatantly stand out'. He also was of the view that this procedure was 'blatantly unfair' to Mr Marcus. He was also of the view that this was the first attempt at unmasking and that the force would be waiting to see whether the judge concluded if it was lawful. Finally, he accepted that Mr Marcus had been denied his opportunity to choose whether to pull out of the procedure altogether."
As the judge said, it was common ground that the use of the unmasked images contravened Code D. Indeed that must be so. It was only necessary to resort to the device of the masked images for the very reason that otherwise there would not be images of at least eight other people resembling the suspect in age, height, general appearance and position in life. The unmasked images by definition failed to meet that criterion.
"The police were left with a choice between three options:
First to hold no identification procedure of any kind. To have taken that option was unthinkable and it is not argued that it should have been taken.
Secondly, to hold a video procedure, however flawed it might have been.
Thirdly, to move to a confrontation.
In reality, the choice lay between these two latter options. It does not take a moment's thought to see which of the two was preferable. Confrontation is a clumsy device, lacking in transparency and almost always likely to lead to a risk of unfairness to the accused."
Then at 7D:
"Whatever its flaws, the procedure adopted in this case had the virtue of transparency. It was conducted in the presence of the defendant's representative and, above all, it was recorded so that there is available an unimpeachable record of the procedure. A jury would thus be able to see exactly what was done and to hear, with a little difficulty, I accept, but to hear, nonetheless, exactly what was said."
Then at 9C:
"To the extent that the identification procedures in this case were imperfect, the trial process is fully equipped to expose those imperfections to the jury, not least because of the existence of the unimpeachable record to which I have referred.
Ultimately, the task of assessing the weight to be given to this evidence is preeminently one for the jury and I am confident that they can be entrusted to perform that task conscientiously and fairly.
In those circumstances and for the reasons which I have sought to give, I rule that this evidence ought to be admitted.
To rule otherwise would have an effect on the proceedings which section 78 is designed to avoid.
I perhaps should add this, that I have reached this decision on the particular facts of this case and, insofar as anybody has regarded this case as what is described to me as 'a test case', then they are wrong to do so. I understand this is the first time that a judge has had to rule on a matter of this kind and rule I have but I have ruled in respect of this case and in the particular circumstances and in the particular context of this case and I am not to be taken to, by giving this ruling, to have given some sort of blanket approval to this sort of procedure in all cases. The admissibility of the evidence of whatever kind in any case will depend on the peculiar and particular circumstances of that case and for it to be thought that I had ruled that this sort of parallel viewing, if I can so describe it, is always appropriate evidence, to think that would be to make a great error."