CO/2607/2003 
Neutral Citation Number: [2004] EWHC 1470 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Friday, 21st May 2004
 
B E F O R E:

LORD JUSTICE AULD 

MR JUSTICE PITCHERS

 
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J
(CLAIMANT)

-v- 

DIRECTOR OF PUBLIC PROSECUTIONS
(DEFENDANT) 
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Computer-Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
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MR RUSSELL FORTT (instructed by Ashok Patel & Co) appeared on behalf of the CLAIMANT
MR JUSTIN COLE (instructed by the Crown Prosecution Service) appeared on behalf of the DEFENDANT
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J U D G M E N T 

1.	MR JUSTICE PITCHERS:  This is an appeal by way of case stated from a decision of the Middlesex Justices sitting in the Youth Magistrates' Court on 8th January 2003.  It involved two juveniles, B and J, who were charged with an offence of robbery.  The facts set out in the case stated are as follows:
"We heard the trial of the said charges on 8th January 2003.  At the close of the prosecution case each of the Appellants made an application under section 78 of the Police and Criminal Evidence Act 1984 that the Court exclude the evidence of Adam Khaffaf's identification of them as the two people who had attempted to rob him.  Further and in the alternative each made a submission that there was no case for him to answer.  The following is a short statement of the prosecution evidence.  
"i.  Adam Khaffaf, aged fifteen years, gave evidence that on the 30th March 2002 he was on his way to some shops in company with a friend Rachel.  On his way he was stopped by three youths, who were not known to him, of whom two were black and one of mixed race.  One of youths asked to use Adam's mobile telephone.  When Adam said he had no telephone the youth accused him of lying, but Adam proceeded on his way.  Ten minutes later Adam encountered the three youths again when one called him over to an alley where the other two were standing.  One of the black youths placed Adam in a headlock and searched his jacket whilst the mixed race youth removed a sovereign ring from Adam's finger.  The black youth then assaulted Adam.  Adam stated that the incident happened quickly.  
"ii. After the second incident Adam went to the house of another friend, at Haymill Close.  He stated that somebody else had tried to get his ring back.  At a time between four and four and a half hours after the incident Adam went with other occupants outside this house.  He recalled that the police were already there.  He stated that he spoke to a police officer who had come over to him with the two Appellants and had asked 'Are these the people?' to which he had answered 'Yes'.  The Court understood that by so doing Adam had identified the two Appellants as the two individuals involved in the earlier incident: of whom one had placed him in a headlock and the other had removed his ring.  Adam's evidence was that he had not spoken to the police before this.  He stated that he had not spoken to the police officers prior to the arrest of the Appellants.  
"iii. During cross examination by counsel for the Second Appellant, Adam Khaffaf conceded that he could not be sure that the person who had carried out the alleged robbery was the Second Appellant but shortly afterwards in re-examination he reaffirmed that he was sure that the person who had placed him in a headlock and punched him was the person he had identified to the police.  During cross examination by counsel for the First Appellant, Adam Khaffaf conceded that it was the police's idea that the Appellants were the people responsible for the robbery. 
"iv. PC Tooley and PC Foreshaw-Singh each gave evidence in broadly similar terms.  Namely that they had attended Haymill Close together in response to an allegation that a female was being attacked by twenty youths.  On arriving they had become aware of a commotion involving around ten people who were being noisy and possibly abusive outside 43 Haymill Close.  One member of this group had been Adam.  They had been directed to Adam Khaffaf and Adam had made an allegation that he had had his sovereign ring taken.  
"v. As PC Tooley was talking to Adam he stated that the Appellants had walked towards them.  When PC Tooley had first noticed them they were forty yards away.  
"vi. The officers each stated that Adam had pointed out the Appellants to PC Foreshaw-Singh stating 'That's them.  They're the ones who took my ring'.  PC Foreshaw-Singh had said 'Are you sure?' and Adam had said 'Yes'.  PC Foreshaw-Singh had said 'Who did what?' and Adam Khaffaf had indicated one of the Appellants and said 'He held me and hit me and the other took my ring'.  PC Tooley said that she had had her back to the two Appellants and had not been aware of them until Adam had pointed them out to her.  PC Foreshaw-Singh had been aware of them approaching.  As he had approached, the second Appellant was making loud repeated statements about the use of an axe saying 'Get your axe now'.  
"vii. PC Tooley had arrested the First Appellant, PC Foreshaw-Singh had arrested the Second Appellant."
2.	The case then adds, for reasons that are not entirely apparent, that PC Tooley had been a police constable for nine months on 30th March 2002.
3.	The case then finally records the formal admissions that were made and, as far as the factual matters are concerned, at the end of the case it records that these two appellants, when they had come to give evidence, had admitted presence at the scene.  At the end of the prosecution case, a submission was made on behalf of each of the appellants in a twofold form.  Firstly, that the evidence of identification should not be admitted because, having regard to all the circumstances of the case, including the circumstances in which it was obtained, its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted.  In other words, this was an application under section 78 of the Police and Criminal Evidence Act.  At the same time, a submission was made that there was no case for either of these appellants to answer.  
4.	The stage at which an application under section 78 should be considered in the Magistrates' Court is set out in the cases of Vel v Owen [1987] Crim LR 496 and Halawa v Federation Against Copyright Theft [1995] Cr App R 21.  The findings of the court in Vel v Owen are conveniently set out at page 28, letter B of the judgment in the second of those two cases.  In the course of the judgment by Ralph Gibson LJ, at letter B on page 28, he said this: 
"In Vel v Owen ... Lloyd LJ, as he then was, noted that sections 76 and 78 apply to proceedings in the magistrates' court as they apply to proceedings in the Crown Court.  Section 78 is in very different terms from section 76.  Section 78 is discretionary whereas section 76 is not.  There is no burden on the prosecution to disprove unfairness under section 78 whereas under section 76 there is.  If, under section 76 the Crown is unable to displace the burden of proof, the evidence is automatically excluded.  There is no equivalent position in section 78.  Lloyd LJ continued at page 514:
"'It seems to me to follow from those distinctions between sections 76 and 78 that there is ... no right on the part of the defendant in a magistrates' court to have the question of the admissibility of the evidence in question determined under section 78 in advance of that evidence being given.  Certainly, nothing in section 78 confers any such express right, and I see no reason why in the magistrates' court any such right should be implied.  
"So, where the application to exclude evidence is made ... under section 78 and not under section 76, the procedure in the magistrates' court should be exactly the same as it has always been.  In other words, the guidance given by Lord Lane in F (An Infant) v Chief Constable of Kent and by Robert Goff LJ in ADC v Chief Constable of Greater Manchester are as applicable and accurate since the passing of the Act as there were before the passing of the act."  
5.	Then at page 29, letter B:
"'In relation to section 78 we would answer the question by saying that magistrates' courts should proceed as they have proceeded before.  In some cases they should deal with an application to exclude evidence when it arises.  In other cases they may leave the decision until the end of the hearing.  It is impossible to lay down any general rule, other than that the object should always be to secure a trial which is fair and just to both sides.  We do not find it necessary to answer the question in relation to section 76.'"
6.	In Halawa, the court said that the case of Vel v Owen was good law.  Accordingly, the magistrates' decision, in effect to defer the consideration of section 78, was an entirely appropriate way of proceeding in this case.  The decision they had to make, at that stage, was whether there was sufficient evidence for the case to proceed past the end of the prosecution case.  They heard submissions from both sides.  
7.	The defence argued (i) that there should have been an identification parade and that failure to hold one was such a serious breach of the codes that the identification should be excluded and (ii) in any event, the identification by Khaffaf was, on his evidence, so tainted by the behaviour of the police that it was unsafe.  The prosecution argued that the magistrates should prefer the evidence of the police officers to that of Khaffaf on this issue, and should admit the evidence and on the basis of it find a case to answer.  
8.	The magistrates, at that stage, had to apply the usual test where a submission is made at the close of the prosecution case.  The case must be dismissed when there is no evidence to prove an essential element in the alleged offence, or when the evidence adduced by the prosecution has been so discredited as a result of cross-examination, or for other reasons is so manifestly unreliable that no reasonable tribunal could safely convict upon it.  The justices did not, at that stage, have to come to a concluded view on the application under section 78.  
9.	Of course, in this particular case, as part of the normal process of deciding a submission at the close of the prosecution case, they had to consider the circumstances of the identification and the impact of any breaches of the Code on the reliability of that identification.  They had to consider, first, whether there were any breaches of the Code, and if so, as fact-finders, they had to consider the impact of those breaches in the way set out by the House of Lords in relation to directions for the jury, in the case of R v Forbes [2001] 1 AC 473.  
10.	Lord Bingham, in his judgment at page 488, said:
"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 parade 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."
11.	They also had to consider, whether there was a breach or not, the impact of any other evidence as to the conduct of the witnesses upon the reliability of the identification.  If the evidence of identification did not reach the required standard, it was agreed that there was no sufficient evidence of presence at the scene.  They also had to consider the broader question of the quality of the identification evidence and, having properly directed themselves as to the law, ask themselves could they find the defendants guilty if there was no more evidence in the case.  They were not, of course, deciding at that stage whether they were sure that the defendants were guilty. 
12.	Since this was an application at the close of the prosecution case, by definition what was later said in evidence by the defendants had no relevance.  It could only become relevant if they had been invited to reconsider the fairness of admitting the evidence of identification later.  That never arose.  
13.	Against that background, I look at the conclusions of the justices as set out in the case at paragraph 6.  Under the heading "The applications under section 78 Police and Criminal Evidence Act 1984" they said this:
"There was a clear inconsistency between the evidence of Adam Khaffaf on the one hand and that of the two police constables on the other concerning circumstances in which Adam Khaffaf had identified the two Appellants.  If Adam Khaffaf's account was correct it would almost inevitably follow that there would have been a serious and substantial breach of the Police and Criminal Evidence Act 1984 Code of Practice D such as could have justified the exclusion of that evidence.  However on the account of the police constables there had been no such breach and no unfairness to the Appellants.  
"The discretion under section 78 of the Police and Criminal Evidence Act 1984 to refuse to allow the prosecution to adduce evidence only arises where it 'appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it'.  Consequently, in so far as there was a burden to establish the facts that gave rise to the purported unfairness, this burden lay on the Appellants.  
"The police constables had given clear and credible evidence of the circumstances in which the identification took place.  At the close of the prosecution case it did not appear to us that their evidence was incorrect.  
"On announcing this decision we made it clear that we had not made a finding of fact as to the circumstances in which the identification had taken place, nor had we finally determined the Appellant's applications, but that we were keeping an open mind until we had heard all the evidence whereupon we would revisit the question.  
"The submission of no case to answer.  
"Adam Khaffaf had given evidence to the court that two people had attempted to rob him and that on that same day he had identified those two persons as being the two Appellants.  His evidence was not so inconsistent that no reasonable tribunal taking the most favourable view of the prosecution case could convict upon it. 
"Interaction between the application to exclude evidence and the submission of no case to answer.
"In the instant case the applications to exclude evidence and the submission of no case to answer interacted in an unusual way.  If at the conclusion of the trial we were to conclude, even on the civil standard of proof, that Adam Khaffaf's account of the circumstances in which he identified the two Appellants to the police was correct it would follow that the question of excluding the identification evidence should be revisited and that the evidence may need to be excluded.  Alternatively, if we were to doubt the accuracy of his account in that respect, this would tend to cast doubt also on the reliability of Adam Khaffaf's recollection of the day's events as a whole.  Either possibility might tend to seriously weaken the case against the two Appellants. 
"However, having addressed the two applications separately and having refused to grant either at that stage in the proceedings, it would not be appropriate to consider whether in conjunction they led to a conclusion that at a later stage in the proceedings the identification evidence against the two Appellants would inevitably either be excluded or fail to convince and that the case against them was bound to fail.  
"We declined to exclude the evidence of identification at that stage and found in respect of each Appellant that there was a case to answer."
14.	The issue concerning the relevance of the appellants' own evidence of presence, in my judgment, is not one that arises for us any more than it arose for the magistrates at the stage with which we are concerned.  This is not a case where we are considering a jury verdict and deciding whether it is safe or not.  We have to answer the question that is posed in the case, which is this:
"The question for the opinion of the High Court is whether a bench of magistrates could have come to the conclusion that there was a case to answer, based upon the evidence heard by the court and the submissions made by counsel?"  
15.	In relation to that question, both sides have advanced before us orally the arguments that were advanced before the magistrates, and in their written submissions.  
16.	In my judgment, this was a straightforward question of fact for the justices.  They had to consider the evidence of the complainant and the police officers, and what parts of the evidence they found, prima facie, to be accurate and reliable.  They had to decide whether any breaches of the Code, or other matters relevant to identification, meant that, applying the normal test at the conclusion of the prosecution, they could not rely upon the evidence that they had heard.  Their conclusions, as set out in the case, show that they approached the issues in the right way, although the wording of the paragraphs concerning the interaction between the different stages of the trial make it sound more complicated than, in reality, it is.  
17.	So far as the question posed for this court is concerned, I would answer that in the affirmative: that there was evidence in the case upon which a bench of magistrates could have come to the conclusion that there was a case to answer, based upon the evidence they heard and the submissions made by the counsel.  Accordingly, I would dismiss this appeal. 
18.	LORD JUSTICE AULD:  I agree.  The appeal is therefore dismissed.  Any consequential applications? 
19.	MR COLE:  No, my Lord.  
20.	LORD JUSTICE AULD:  We are grateful to both counsel for your assistance.