Lord Justice Longmore :
- Most recent cases about the Code of Practice for the Identification of Persons by Police Officers (Code D of the Police and Criminal Evidence Act 1984) raise the question whether an identification parade was required by the Code. This remarkable case raises the question whether an identification parade was not only unnecessary but wrongly held.
- Mr Patrick Delaney was murdered by a gunman’s shot to the head in daylight at 6.15 pm on 2nd July 1998 outside a small parade of shops, known as Cheriton Parade, between Queen’s Crescent and Malden Road in Kentish Town NW5. Mr Delaney was accompanied to the shops by his friend Mr Gideon Tsagane who had gone into a Chinese supermarket on the parade to ask for some change for a telephone call. Tsagane rushed out of the shop, recognised the gunman leaving the scene and named Anthony Nolan to the police later that day. Mr Nolan was arrested on 4th July 1998 and his trial for murder was fixed for 2nd February 1999. The gun used to commit the murder was never found. Gideon Tsagane was, of course, to be the main prosecution witness at the trial. Four days before the trial was to begin, while Mr Nolan was in custody, Mr Tsagane was himself shot and killed by a gunman who used the same gun as the murderer of Patrick Delaney.
- Although the trial of Mr Nolan was adjourned for four months so that it could be seen whether there was any link between the murders other than that the same gun was used, no one has been charged with the murder of Tsagane. The trial of Mr Nolan for Delaney’s murder opened on 7th June before His Honour Judge Gordon at the Old Bailey. At an early stage the prosecution applied for Mr Tsagane’s 3 statements to be read to the jury pursuant to sections 23 and 26 of the Criminal Justice Act 1988 on the basis that he was now dead. The judge allowed that application.
- On 8th July 1998 the police had held an identification parade for 3 potential witnesses in respect of Delaney’s murder. These were Stephen Smith who had been sitting in his nearby van filling in timesheets when the shooting occurred, Mr Cesista the owner of the Chinese supermarket and Mrs Swallow who had been visiting the off-licence on the parade of shops. All 3 had seen the gunman but only Mrs Swallow identified him. Mr Nolan’s counsel sought to exclude Mrs Swallow’s evidence of identification as inherently unreliable and the judge held a voir dire to assist him on that application in the course of which Mrs Swallow gave evidence to the court. Having heard that evidence, the judge on 10th June 1999 decided that it should not be excluded but should be placed before the jury. Mr Nolan then dismissed his counsel and another counsel had to be found. The judge had no alternative but to discharge the jury.
- New counsel agreed to take the brief to defend Mr Nolan at extremely short notice. The trial began again on 14th June. Mrs Swallow gave her evidence. Mr Nolan did not give evidence. The jury retired but were unable to agree and were discharged. A new trial began on 21st June. Once again Mrs Swallow gave her evidence; once again Mr Nolan did not give evidence. This time the jury convicted; from that conviction Mr Nolan sought leave to appeal. Mrs Justice Steel refused leave to appeal on 6th December 1999 but after fresh counsel (Mr Birnbaum QC) had been instructed and substantially revised the grounds of appeal, this court granted leave to appeal on 17th October 2000 and we heard the appeal on 6th and 7th February 2002.
Prosecution case
- Gideon Tsagane’s evidence, as read to the jury, was that on 2nd July 1998 he met up with the deceased (who was known as “Paddy”) at about 6 o’clock and they went together to a local off-licence. They selected some beer and outside the shop the deceased said that he wanted to make a telephone call. He did not have the correct change and asked Tsagane to go back into the off-licence for a 10p piece. Tsagane did so but there was a delay in getting served so he decided to go instead to the Chinese supermarket next door. The deceased waited outside by the window. As Tsagane was standing by the counter he heard a bang which sounded like a firework. He heard only one bang which was like a starting gun. He turned to look out of the shop window and saw the deceased slump to the ground He knew immediately that Delaney had been shot. He asked the assistant to telephone for an ambulance before running out of the supermarket. He then saw the appellant (also referred to as “Paddy”) walking away from the deceased. He was about 5 yards away and walking calmly away with his right arm fully outstretched pointing towards Tsagane. Mr Nolan looked directly at him and he was the only one in the street who did not look shocked. He was making some sort of gesture towards the deceased. Tsagane had a clear view of Mr Nolan and, having known him for at least 18 years, recognised him instantly. Mr Nolan walked off, out of sight. Tsagane noted that he was wearing a matching dark blazer and trousers and a white shirt. He had been wearing that suit or one similar recently. Tsagane, who lived opposite Mr Nolan, had seen him on about 5 occasions during the previous 2 weeks. He described him as white, 6’ tall, of slim build with mid-dark brown short hair in a side parting. His face ‘looked as though it had been through the wars’. He had a distinctive swagger in his walk.
- The deceased, who was still alive at that point, was trying to stand up. An elderly lady was attending to him. Tsagane ran into a shop and fetched some kitchen paper which they used to wipe the deceased. The police and ambulance had been called and when Tsagane heard the sirens he stepped into the road in order to direct them to the right place. When the police arrived Tsagane knew the deceased would be in good hands and, in a panic, left the scene. This was because Mr Nolan would know he had witnessed the shooting. He went home and changed his clothes as there were some blood spots on his cuff. He then went to the home of his ex-girlfriend and tried to compose himself. He then left to go to work at the Theatre Royal in Drury Lane. He worked his normal hours that evening and then returned to the parade of shops which had been the scene of the shooting. At about 11.15 pm he spoke to police officers and informed them that he was a witness. He said he had been nervous and did not want to speak to them at the scene. At the police station he identified the applicant as the gunman. He refused to provide firearm residue swabs, he said, in view of the late hour (2.45 am).
- The next day, at about 7 o’clock, he was leaving the house of a friend, Rodney Hayter (who lived next door to the appellant’s mother) when Mr Nolan approached him and said he wanted a word. As Tsagane was about to say ‘what about’ he saw DC Brown who shouted out to him. Tsagane made an excuse to go to the officer and Mr Nolan walked off. Police officers confirmed this chance meeting saying that they saw Tsagane with another man at about 7.00 pm on 3rd July. He had walked over to them and told them that the other man was Mr Nolan.
- Delaney died two days later. The cause of death was confirmed as a gunshot wound to the head. The entry wound at the corner of the left eyebrow was consistent with a handgun being fired from near range.
- The appellant was arrested at about 2.20pm on 4th July 1998 at a hostel in Camden Road, North London. When cautioned he made no reply but shook his head.
- He was interviewed on 3 occasions but, on the advice of his solicitor, declined to answer questions. Four days later he took part in the identification parade.
- No firearm residues were found on his clothing which had been seized by police.
- In a statement dated 15th September 1998 he denied being present at the scene of the shooting. He could not be more precise about his whereabouts at specific times, he said, since he had been drinking alcohol.
Eye witness evidence
- The applicant is 5’11½” tall, slim with short, brown hair.
- Steve Smith was sitting in his vehicle (a white van) filing out his time sheets when he happened to look up and see 2 men about 30 feet away walking slowly towards him. They were both of similar height and appeared to be approximately the same age. The first was about 30+ and was casually dressed. The second one had short, darkish-brown hair and was wearing a dark-blue suit jacket and trousers and a sky blue shirt. A few seconds later the man in the blue shirt held up his right arm and, at a distance of about 6 inches, shot the other man in the head. Smith did not see the gun, which was silver-coloured, until the gunman lowered his right arm. This man then continued walking towards Smith’s van; at a distance of about 15 feet he stopped as if to make eye contact with him. Smith, however, did not look at him. He saw him put the gun into his pocket. He then turned right and out of view. Smith waited a while and some 30 or 45 seconds later people began to emerge. He described the gunman as white, 6’, of medium build, about 30 with short, dark brown hair. He was wearing a dark blue jacket and dark blue trousers and a sky-blue shirt. When Smith got out of his van he saw an elderly woman attending to the deceased. He did not see a mixed-race man (‘Tsagane’). Smith left the scene when the police arrived as he preferred to talk to the police alone.
- Felix Cesista was working in the Chinese supermarket when he saw 2 men (Tsagane and the deceased) walking towards the off-licence. Shortly after he saw them walking back and then one of them, the ‘half-caste’ man opened the door and asked if he could give him a 10p piece. Cesista walked towards the till and as he did so he heard a loud bang. Tsagane immediately said to him ‘a man has been shot, dial 999’. Tsagane then left the shop and Cesista looked out of the front window. He saw a man trying to put something into his back trouser pocket. This man then walked off holding his right arm out with his palm facing outwards and pointing towards Cesista’s shop. There were people looking after the victim, including an elderly lady. Cesista stayed inside until he was sure the gunman had disappeared. The description he gave to the police was of a white man, 25-30, 5’ 8”/9”, slim with short blonde hair brushed back at the front and wearing a navy, possibly pin-striped suit. Before the police arrived, Tsagane ran off but before doing so made a comment like ‘that’s the chip’s man’ and ‘I did not think he could or would do it’. In a subsequent statement Cesista said, by ‘blonde’ he meant very light brown as opposed to bleached blonde.
- Margaret Swallow (68) had lived in the area for 23 years. She was entering the off-licence when she saw 2 men standing close together outside the shop. She did not pay them much attention and assumed they were having words. She had certainly seen the deceased in the area before and possibly the other man. As she opened the door she happened to look at them and one of them, who was wearing a blue suit, turned and looked at her. A ‘half-caste’ boy (Tsagane), she said, was coming out from the shop at the same time. She then heard a bang and the half-caste boy nearly jumped out of his shoes. She ran towards the victim, who was falling down from the doorway of the off-licence, while the blue-suited man started running off. Either before he did so, or after he started, he turned and she saw his face again. She started to tend to the victim and was joined by Tsagane. The victim said ‘Frank, help me and take me home’. He was trying to get up and Tsagane said to him ‘I think you’d better stay there’. They moved him into the ‘life-support position’ and she noticed that two £5 notes had fallen from his hand. She pointed this out to Tsagane who picked them up. She described him as a ‘very nice boy’. She said in relation to the identification parade that she believed number 7 was the right man. She was ‘very sure, no doubt at all’. The first time she wanted to be sure it was him, that is why she walked down the row a second time. She did not want to pick out an innocent man.
- This evidence was importantly different from Mrs Swallow’s previous statements.
- She gave a description of the gunman to a female officer at the scene. She said the man running away was a white man of 25 years or 30 and it was the back view she got. He was wearing a navy-blue suit had short hair at the back and sides and was slightly built. She repeated this in a statement the day after in which she said she saw a man running down the supermarket ramp. She only saw him from the back. He was white, 20-30, slightly-built, navy suit or navy jacket and dark trousers. His hair appeared to be dark, short back and sides although she could not be accurate about the hair colour since she only saw him through the trees. On the identification parade which occurred on 8th July 1998 she had said “the best I could say is near is number 7” which she then repeated quietly as “number 7”. That was Mr Nolan’s position on the parade. After the parade was over she said to Det. Sgt. Wright that the man who had run away from the scene “looked around at her and she saw his face”. On 9th July she then made what may be called her second statement in writing in which she added that she saw the man who ran away as she was going into the off-licence and had seen his face. She also said that when the gunman ran off he glanced back over his right shoulder and she could see the right side of his face.
Other Evidence
- On 3rd July DC Brown saw 2 men, of whom she wanted to speak to the one who was Tsagane. She called out to him and he crossed the road to talk to her. He said to her ‘that’s him’ and she said ‘who’ and he then told her the applicant’s name. The applicant was arrested the next day, 4th July 1998, at a hostel in Camden Road, NW1. When cautioned he made no reply but shook his head. In interview he declined to comment but said that he would stand on an identification parade.
Defence case
- Mr Nolan did not give evidence and no witnesses were called. On his behalf it was submitted that the evidence of Tsagane could not be trusted. His reaction after the shooting – fleeing the scene, changing his clothes and going to work ‘as normal’ - was suspicious. Furthermore his clothes were washed within hours of the murder and he refused to give the police samples for forensic evidence. His involvement in the shooting could not be ruled out and he had named Mr Nolan as the killer in order to shift the spotlight away from him.
- The witness, Smith, had probably the best view of the killer, yet did not see him on the identification parade. Cesista, too, had seen the face of the killer and his description to the police – about 5’10” tall, of medium build with short blonde hair – was a description which did not match Mr Nolan. As for Mrs Swallow she was a poor witness. She had lived in the same area and had been a near-neighbour of his for about 20 years. She was a regular at that parade of shops which were a two-minute walk from the applicant’s address. She was certain that Tsagane was with her in the off-licence when the shot was fired and that the gunman had run (and not walked) from the scene. She also told the police that she could not be accurate about the gunman’s hair colour since she only saw him from the back as he ran through trees. In a statement, taken the following day, she repeated the comment that she had only seen him from the back as he fled. At the identification parade there was a possibility that she was recognising a neighbour, rather than making a true identification of the gunman.
Grounds of Appeal
- These were as follows:-
i) Mrs Swallow’s evidence of identification should have been excluded because in breach of Code D or of the Crown’s general duty to be fair neither Mr Nolan nor his solicitor had been told before the parade that Mrs Swallow’s evidence at that time was that she had only seen the back of the gunman. No application had been made to this effect at the trial because counsel had not then noticed the point; but if it had been the evidence would have been excluded because the appellant would never have consented to go on an identification parade for Mrs Swallow if he had known that Mrs Swallow had only said that she had seen the gunman’s back. Application was made to call Mr Kieran Moroney, Mr Nolan’s solicitor, for the purpose of saying what advice he would have given to Mr Nolan if he had known that Mrs Swallow had only seen him from the back.
ii) If this event was not enough in itself, the breach coupled with what were manifest weaknesses in Mrs Swallow’s evidence would have resulted in the exclusion of her evidence of identification.
iii) That would have left the evidence of Tsagane as the only evidence of identification and the jury might then have acquitted.
iv) Tsagane’s written evidence should not have been admitted pursuant to the Criminal Justice Act 1988 because (1) it contained a statement that must have been a lie and (2) its admission was unfair to the appellant once one had regard to the likelihood of his statement being unable to be controverted.
v) Counsel failed to cross-examine witnesses who could have undermined Tsagane’s evidence.
vi) The judge’s directions on the support that Mrs Swallow could give Tsagane’s written statement were confusing and unfair.
vii) The judge gave inadequate directions about the reliability of Tsagane.
viii) The judge gave no directions about the fact that the absence of forensic evidence favoured Mr Nolan.
Breach of Code D
- Code D in relation to Identification was introduced by the Police and Criminal Evidence Act 1984 and has been amended from time to time. D.2.0 provides:-
“A record shall be made of the description of the suspect as first given by a potential witness. This must be done before the witness takes part in the forms of identification listed in paragraph 2.1 or Annex D of this code. The record may be made or kept in any form provided that details of the description as first given by the witness can accurately be produced from it in a written form which can be provided to the suspect or his solicitor in accordance with this code. A copy shall be provided to the suspect or his solicitor before any procedures under paragraph 2.1 of this Code are carried out.”
Then D.2.3 provides:
“Whenever a suspect disputes an identification, an identification parade shall be held if the suspect consents . . . . A parade may also be held if the officer in charge of the investigation considers it would be useful and the suspect consents.”
- D.2.15 and 16 make further provisions for the first description to be provided to the defence before the parade. The first sentence of D.2.3 has been the subject of interpretation by the courts, since defendants have often complained that no identification parade has taken place when it should have done. R v Forbes [2001] 1 AC 473 has now held that an identification parade must be held even where a witness has already identified a suspect. The second sentence of D.2.3 has not been the subject of interpretation; no doubt it is much less usual for a defendant, in respect of whom an identification parade is not required, to complain that a parade has been held, when he has in fact consented to such a parade.
- The identification was arranged so that Mr Smith, Mr Cesista and Mrs Swallow could all take part. As required by Code D, details of the witnesses’ first description were provided to Mr Nolan’s solicitor, Mr Moroney. The witnesses were not named but it is common ground that the second description on the form was that first given by Mrs Swallow. It was in these terms:
“A white man aged 25 to 30 years, slight build. He had a navy suit short hair at the back and sides.”
It did not say that she had a back view. It would normally be pointless to stage an identification parade for a witness who had not seen the face of the suspect. Since no point had been taken at trial about any breach of Code D, and since Mr Birnbaum wished to explore the question whether the relevant officers had deliberately concealed from Mr Moroney and his client the fact that Mrs Swallow had said she had only seen the back of the gunman, statements were taken from the officers. These statements revealed the following:
(1) Both Sergeant Woodbridge who dealt with Mrs Swallow at the scene of the shooting and DC Daniels, the officer to whom Mrs Swallow had made her 3rd July written statement, formed the view that she had been very frightened by the events she had witnessed and that she was holding back information about the shooting;
(2) in the light of the fact that these officers thought that Mrs Swallow might have been holding back information through fear and that Cesista, who had been in much the same position as Mrs Swallow, had said he had had a side view of the gunman, the Senior Investigation Officer Detective Chief Inspector Cater decided that it would be useful for Mrs Swallow to attend the identification parade being arranged for Mr Smith and Mr Cesista so that she could be given an opportunity to make any identification if she was able to do so; he gave instructions for the parade to be organised;
(3) Detective Constable Moore, who was temporarily on call for the Delaney murder inquiry while investigating another murder, was asked to complete the relevant first description form (Form 620X) for transmission to Mr Moroney. He cannot now remember details but thinks that, since he was not trained to operate the Holmes computer on which the relevant information was stored, he must, on 6th July 1998, have telephoned the incident room which housed the Holmes team at Becks House in Hendon and asked someone who could operate the Holmes computer to give him the required information. He wrote it on the form by hand and then faxed it to Mr Moroney. He cannot now remember the form but would not have deliberately omitted any information he had been given.
(4) Detective Sergeant Wright attended the parade and Mr Moroney signed the original 620X Form.
- Since the question of a breach of Code D had not been explored at the trial, we decided to give Mr Birnbaum leave to call Mr Moroney; in the light of his expressed wish to explore whether the police officers had deliberately decided to exclude from the details of Mrs Swallow’s first description the fact that she had a back view, we directed that the Crown should tender D/Sgt Wright and DCI Cater for cross-examination. Mr Birnbaum wished also to cross-examine DC Moore and Inspector Skinner who was the independent Identification Officer at the parade. Inspector Skinner had said that if he had known Mrs Swallow had twice said that she had seen the suspect from the back, he would need to be persuaded he would not be conducting a pointless exercise. If necessary he would talk to the Investigation Officer and establish if there were sufficient reason for the parade to go ahead. Any objection from the suspect’s solicitor would make no difference to his decision since any objection could be addressed in court at a later stage. (A later statement said that he would not have stopped the parade in any event). We did not think that cross-examination of DC Moore or Inspector Skinner could take the matter any further and declined to require the Crown to tender these officers for cross-examination.
- Mr Moroney then gave evidence. He said that if he had been told that the relevant witness (he did not then know it was Mrs Swallow) had only seen the suspect from the back, he would have said to the police that the witness should not be on the identification parade. If he had been told in terms that the officers in the case thought that she might be holding something back, he would have talked to the Identification Officer and have expected him to agree that the witness should not attend the parade. In cross-examination he said he would have asked for the witness to make a further statement or, if not that, he would at least have negotiated with the Identification Officer. He went on to say “I’d have put up a fight and there would have been the other two witnesses only”.
- In her evidence D/Sgt Wright said that it was DCI Cater’s decision to ask Mrs Swallow to come to the parade and she was aware that the reason was that it was thought she might be holding back information from fear and might be capable of identifying the gunman. She said she had no involvement in writing out the terms of the first description. She had attended the parade to give the Identification Officer any necessary information and had given Mr Moroney Form 620X to sign. It was not an issue in her mind whether the defendant or his solicitor should know that Mrs Swallow had only seen the back of the gunman. She did not think about it at the time. Had she thought about it, her view would have been that they were not entitled to know.
- DCI Cater said he had been told that Mrs Swallow had been frightened and distressed; in the light of what Mr Cesista had been able to say he saw, he thought that Mrs Swallow could have had a better view of the gunman than Mr Cesista. He agreed he did not document his reasons for asking Mrs Swallow to come to the parade nor did he think to ask her to make a further statement before the parade. His view was that either she would pick Mr Nolan out (in which case matters could be taken further) or she would not (in which case it would be the end of the matter). He could not say why the first description as given to Mr Moroney did not contain the information that she had only had a back view; that was not something in his mind at the time; he never considered whether the defence should have had that information. If he had considered it, he would not have thought it necessary.
- Having heard that evidence, we are entirely satisfied that there was no deliberate decision on the part of the police to suppress that part of Mrs Swallow’s statement saying that she had had a back view of the man running from the scene. It would have been a pointless act of suppression since Mrs Swallow’s statements would shortly be disclosed to the defence in any event and it would become clear that, in her first description to the police and in her first statement, she had said she only had a back view. So the point on breach of Code D (if it is a good point) would have been readily available to anyone who had thought about it, although, as a matter of record, Mr Birnbaum seems to have been the first person to whom the point occurred.
- It is, of course, a question whether the appellant should be allowed to take the point at this late stage. We will assume, without expressly deciding the matter, that Mr Birnbaum is correct in his submission that the question is whether Mr Nolan had a fair trial rather than whether there was any flagrant incompetence on the part of counsel in not taking the point at the trial.
- Mr Birnbaum’s submission had two parts; first that there was a breach of Code D in failing to include in the first description the fact that Mrs Swallow had only had a back view. The result of this was that the judge would have excluded her evidence of identification altogether or at the very least would have left it to the jury as part of their decision as to the reliability of Mrs Swallow’s evidence. The second submission was that even if there was no breach of the Code, common fairness required that it should have been revealed to the defence before seeking consent to the parade; not having been revealed, the consent was vitiated and the judge should have excluded the evidence for that reason pursuant to section 78 of the Police and Criminal Evidence Act 1984.
Breach of Code?
- The scheme of the Code is important. An identification parade must be held if identification is disputed. It was common ground that by virtue of his ‘No comment’ interview, Mr Nolan was at least not accepting that he was the gunman and that an identification parade was required for Mr Smith and Mr Cesista who had said they had seen the face of the gunman. Mr Birnbaum is, no doubt, correct to submit that an identification parade cannot be compulsory in relation to a potential witness who has not seen the suspect’s face. But the second sentence of D2.3 expressly says that a parade may be held if the investigating officer considers it would be useful and the suspect consents. Mr Nolan gave his consent in interview. It then became necessary to provide the first description of each witness who was to come to the parade. If the officer considers a parade would be useful and the suspect does not consent, the officer’s options are not exhausted because be can arrange for a group or video identification or a confrontation without the consent of the suspect.
- The requirement to provide the suspect with the first description of the witness is not relevant to the initial consent. The primary purpose of the requirement for a first description is that there should be a written description, available to both the police and the defence, before the witness makes an identification and thereafter becomes exposed to the risk of describing the person he or she has already identified. It may have a further purpose in assisting to ensure that the persons who are on the parade are comparable to (or at least not wholly different from) the suspect.
- In these circumstances we do not consider that it is a necessary part of a potential witness’s first description that the witness’s opportunity to see the suspect should be included. It cannot be required that the description should include, for example, the angle at which the witness saw the suspect’s face or the distance from which the witness saw the suspect or the fact that the witness is a short-sighted witness, even if the witness in his first statement has mentioned these things. No more is it a necessary part of the first description that the witness saw the suspect from the rear, if the witness has, in fact, given a description. Here Mrs Swallow had given a description and that description was correctly provided to Mr Moroney. It was not necessary to add that Mrs Swallow had seen the suspect from the back in order to comply with the requirement that a first description be provided to the suspect. Thus, in our judgment, there was no breach of the code.
- We consider that this conclusion accords with the general thrust of R v Forbes [2001] 1 AC 473 in which Lord Bingham (para. 20(4)) deprecated a construction of the Code which substituted a difficult judgmental decision for an apparently hard-edged obligation. Inclusion in a first description of the angle of vision, especially if it is from the back, would invite argument on the appropriateness of the identification parade when the decision on the appropriateness is expressly entrusted to the investigating officer. Mr Moroney’s evidence was precisely to the effect that he would want to argue about the parade at the time it was taking place. That would, in our judgment, be contrary to the true intent of the Code.
- Mr Birnbaum’s second argument was that, even if there was no breach of the Code as such, it was nevertheless unfair for the police not to reveal at the time of the parade the fact that Mrs Swallow had only seen the suspect from the back. He submitted that Mr Moroney had been deprived of the opportunity of trying to persuade the police to refrain from asking Mrs Swallow to participate in the parade and that Mr Nolan had been deprived of the option of withdrawing his consent to the parade if the police had insisted on the parade taking place. He relied on R v DPP ex parte Lee [1999] 1 WLR 1950 to submit that there was a general duty of fairness on the Crown at each stage of the criminal process eg (at 1962 G) to inform the defence of past convictions of prosecution witnesses before a bail application is heard. So here said Mr Birnbaum it was relevant to Mr Nolan’s continuing consent to the identification parade that he should know that Mrs Swallow had said she had only seen the gunman from the rear.
- This is a misunderstanding of the position for two reasons. First, Mr Nolan’s consent is not essential to the process of identification as such. It is only essential for a parade. Other (and from a defendant’s point of view less satisfactory) forms of identification can take place without his consent. Secondly, for the reasons we have given, it is no part of the requirement of fairness to the defendant that his representative should have the right to start arguing at an identification parade that it should not take place. The Code gives the power to decide its appropriateness to the investigating officer and there is, in this case, no doubt that he did consider it would be useful to ask Mrs Swallow to attend, that he had good reasons for so doing and that Mrs Swallow (whom the judge decided on the voir dire was an honest witness) was capable of making an identification because she had, in fact, seen the gunman’s face.
- This is not to say that there can never be unfairness to a defendant in an investigating officer deciding that it would be useful to hold a parade and obtaining a defendant’s consent to such a parade. If there were no grounds in fact for holding such a parade, there could indeed be potential unfairness to a defendant. We do not consider there to be any obligation on an investigating officer to inform the defendant or his representative of the reason why he considers a parade would be useful. But, as this case shows, his decision is liable to challenge at any subsequent trial. If such officer does think a parade would be useful in circumstances where it is not required, it would be good practice for the officer to make a note of the reasons for thinking it would be useful. That will then be disclosed before the trial and any attack on the decision can be made and rebutted on the basis of contemporary notes rather than later evidence.
- We would therefore dismiss the first ground of appeal and the second and third grounds of appeal do not, therefore, strictly arise. Mr Birnbaum did, however, take us through the various ways in which he said Mrs Swallow’s evidence was unreliable in aid of an argument that her evidence of identification as a whole would have been excluded by the judge if he had known that the identification parade had taken place when Mrs Swallow had only said she had a rear view. Mr Birnbaum emphasised some points which he submitted were available but had not been taken in the submissions made after Mrs Swallow had given evidence on the voir dire. There was, in particular, the fact that she had said there for the first time that she had seen Mr Tsagane again when she went to the identification parade at Kilburn police station (which was not something that could have happened) and that she had described the gunman as running away when all the other witnesses described him as walking away from the scene. We think that in the context of admissibility there is nothing in the points made; the judge found that she was a palpably honest witness. He accepted her evidence that she was initially fearful and had held back information from the police. That is unfortunate but, regrettably, it is by no means unusual. It was right for Mrs Swallow’s evidence to go before the jury on what the judge knew of the matter. It is not arguable that, if the judge had known all that we now know, he would have made any different decision.
Admission of Tsagane’s statements
- Mr Birnbaum submitted that neither defence counsel nor the judge noticed that Tsagane’s first statement contained what must have been a lie. This was in relation to the fact that the deceased, Paddy Delaney, had lent a bicycle to Rodney Hayter who had failed to return it and that the deceased was now out looking for him. Tsagane’s statement referred to this in the context of the last time before 2nd July when he saw the deceased. He said:-
“It was early afternoon. I bumped into him outside the Robert Peel pub, he was with his girlfriend Dolores Cluff, they live together. They have a few kids, 2 or 3 but I don’t know exactly. Paddy told me he had lent a bike belonging to his kid, to a friend, he told me the friend’s name, I believe but I can’t remember who it was, he was trying to get the bike back, he was looking for the guy.”
Mr Birnbaum said that this was a reference to Rodney Hayter to whom Tsagane referred with some frequency in the later part of his statement and that Tsagane must have known perfectly well that it was to Hayter that Delaney had lent his bicycle and that he was, therefore, shielding Hayter from being seen to be hostile to Delaney. On the face of it it may not appear a particularly consequential lie but the Crown accepted, in the light of the unused material, that Tsagane must have known perfectly well that it was to Hayter that Delaney had lent his bicycle and that Hayter had not returned it.
- Mr Birnbaum relied on section 26 of the Criminal Justice Act 1988 which provides that leave to give in evidence a statement of a deceased person made for the purpose of criminal proceedings should not be granted by the court unless it is in the interests of justice so to do. The section continues:-
“and in considering whether its admission would be in the interests of justice, it shall be the duty of the court to have regard
(i) to the contents of the statement
(ii) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission . . . . will result in unfairness to the accused . . . .
(iii) to any other circumstances that appear to the court to be relevant.”
- Then Mr Birnbaum submitted that the judge had not had proper regard to the question whether it was possible to controvert the statement in the absence of its author. What the judge said about that is this:-
“So far as the central question for the jury the question of identification, I do not accept that this can properly be described as a fleeting glance case. It is longer than that and, in addition, on the face of it the information on the matters that a jury would have to consider under the Turnbull guidelines are dealt with in detail and would enable a jury properly to assess any question of mistake.
I turn to what I think is probably the central question here, which is the question of unfairness. Clearly nothing can be as good as having a witness present for cross-examination, whether that cross-examination ultimately diminishes or enhances the witness’s credibility in the eyes of the jury. But that is not the question. The question is whether there is any risk of unfairness. I have been in detail through the headings raised by Mr Germain in the course of his careful submissions and I have heard Mr Kelsey Fry in answer. Having looked at them individually I am firmly of the view that the inconsistencies and the other criticisms raised in relation to the statements can properly be placed before the jury by cross-examination of other witnesses, including those the Crown have undertaken to tender, if required, and by the use of Schedule 2 of the 1988 Act and by those means the risk of unfairness can be avoided. If it could not be, then the public interest in preventing attempts to silence witnesses to avoid evidence being given could not lead to the statement being read. But as in my view there is no unfairness, that is an additional reason why in my view the statements, edited where appropriate, should be admitted in the interests of justice and that is how I rule.”
We see no reason to say that the judge has exercised his discretion improperly. He could indeed have added that the most obvious way to controvert the statements of the witness would be for Mr Nolan to give evidence of his own movements at the relevant time. Mr Birnbaum suggested that it was not right to have regard to the Crown’s offer to tender for cross-examination witnesses whose evidence the Crown did not intend themselves to adduce because much of the evidence was in unusable form in that it was hearsay or double hearsay. But the evidence of Hayter was not hearsay at all and it was open to the defence to obtain non-hearsay evidence from the sources indicated in the statements if they wished to do so. We dismiss this ground of appeal.
- The next ground was that defence counsel should have cross-examined the witnesses tendered by the Crown and only did not do so because he wrongly assumed that the witnesses would be giving inadmissible hearsay evidence. In support of this Mr Nolan waived privilege in his then counsel’s advice which referred to the Crown offer and continued:
“The witnesses would have consisted of Delaney’s common law spouse, Delaney’s brother, Delaney and Tsagane’s best friends and fellow drug users. Those witnesses would then have been asked questions about
their own involvement with drugs
whether they, together with both deceased parties, were involved in the supply of drugs
whether they were involved in the setting up and eventual killing of Delaney
their knowledge of who[m] wanted to kill Delaney
It is extremely likely that these witnesses would either (a) lie or (b) be giving inadmissible hearsay evidence. The Crown indicated that only relevant first-hand knowledge would be admissible under this provision. With that I agree.”
Mr Birnbaum submits that counsel could and should have cross-examined these witnesses for the purpose of showing that the reason for visiting the shops was drugs related, that Tsagane had gone to the shops with Delaney and another man who was Rodney Hayter and/or Perry Wilson and that Tsagane had told lies to protect Hayter.
- It is difficult to imagine that any reasonable counsel would want to have cross-examined the witnesses tendered by the Crown. Such tactics would be almost impossible to justify. Establishing that the visit to the shops was drugs-related gets nowhere on its own. Counsel would either have to suggest positively that Hayter was the murderer in which case he would have to put that to Hayter or he would have to seek to establish obliquely that someone else was involved without suggesting whom. Either scenario would be most unattractive especially if, as counsel thought, the witness would be likely to lie anyway. There was also an obvious danger that evidence would emerge to damage the defence. It is wrong to suggest that counsel took the course he did from some wrong view of the law. To the extent that evidence he might have extracted from the witnesses was hearsay, no doubt the judge might have queried its value but in the light of his ruling he is unlikely to have stopped its adducement, contenting himself with making an appropriate comment in the summing-up. To that extent, counsel’s assessment of the legal position was correct. But not all the evidence from such witnesses would be hearsay and, to the extent that it was, the defence could always have gone to the alleged source of any hearsay evidence in order to controvert Tsagane’s statement. We reject the fifth ground of appeal.
Misdirection about support Mrs Swallow could give Tsagane
- The judge said that the jury should consider whether Tsagane’s identification of Mr Nolan as the murderer was a deliberately false identification and then whether it could be mistaken. In discussions before the summing-up, the Crown had invited the judge to tell the jury that they ought not to rely on Mrs Swallow’s identification as support for Tsagane’s identification when they were considering whether Tsagane could have been mistaken because, if Tsagane could have been mistaken, so could Mrs Swallow have been. But the Crown argued that Mrs Swallow’s identification could support Tsagane’s if the jury were considering whether it had been fabricated because it would be a remarkable coincidence that Mrs Swallow should pick out at an identification parade the very man whom Tsagane had falsely identified. The judge accepted that submission of the Crown. It may well have been a generous direction from the defendant’s point of view since if, as the judge had rightly held, Mrs Swallow’s identification evidence with its weaknesses should be before the jury, there is no obvious reason why it could not support the identification of another witness challenged by the defence as mistaken.
- Mr Birnbaum submitted that there was a logical flaw in the judge’s direction. If Mrs Swallow’s evidence was not sufficiently reliable to support an identification which might be mistaken so also it could not be sufficiently reliable to support an identification that might be deliberately false. We do not see the logical difficulty because the jury was being invited to embark on two quite separate exercises. They first had to determine whether Tsagane was deliberately lying. Secondly they had to determine if Tsagane might be mistaken (a much less likely possibility). On the issue of fabrication it was entirely fair for the Crown and the judge to ask the jury to bear in mind that Mrs Swallow had picked out Mr Nolan on an identification parade and to ask themselves whether that would be likely to have happened if Tsagane had fabricated his identification. We bear in mind that the learned judge was to direct the jury in the strongest terms not to rely on Mrs Swallow’s purported identification to refute the possibility of mistake by Tsagane. Here, in dealing with whether Tsagane may have deliberately and falsely nominated a man he knew not to be the gunman to that role, the learned judge was inviting the jury to consider, were that to be the case, the apparent coincidence which arose. That is that Mrs Swallow, having selected from the parade the one of those present whom she believed at least most resembled the gunman, happened to have selected the very man who Tsagane had falsely nominated. He was asking the jury to consider that likelihood. Even if it was the case that Mrs Swallow’s identification had certain weaknesses which should inhibit the jury from relying on it if the issue were one of mistake on the part of Tsagane, that does not mean that Mrs Swallow’s evidence was necessarily worthless for all purposes. If that were correct, her evidence ought to have been withdrawn from the jury completely but that contention rightly failed at trial. We therefore consider that the judge did not misdirect the jury about their approach to Mrs Swallow’s evidence.
Inadequate directions about Tsagane’s reliability and the forensic evidence
- The judge gave an entirely proper warning about the fact that Tsagane’s evidence was in written form and could not be cross examined. The complaint turned out to be that no specific direction was given about Tsagane’s double change of trousers. He changed his trousers when he went to work at Drury Lane on the night of the murder; he then changed them again when he got up the next morning. When the police asked for his trousers for forensic examination he gave the police the pair he had been wearing at the theatre; only later did he realise that these trousers were not the trousers he had been wearing at the time of the murder and by then his mother had washed them. That evidence was before the jury; the judge does not have to remind the jury of every bit of evidence and a failure to mention a specific bit of evidence does not constitute a misdirection.
- The same applies to Mr Birnbaum’s eighth ground of appeal. The judge did not specifically remind the jury that the fact that there was no ammunition residue in the pockets of Mr Nolan’s clothing was capable of being a point in his favour, since residues can last longer in pockets than on the surface of clothing. The point had been made in the forensic evidence and the jury were able to take it into account.
Conclusion
- In the result the grounds of appeal all fail. There is nothing unsafe about Mr Nolan’s conviction and his appeal will therefore be dismissed.
************************
LORD JUSTICE LONGMORE: For the reasons which we have set out in our written judgment which we have distributed to the parties, this appeal will be dismissed.PRIVATE
MR BIRNBAUM: Have your Lordships had an opportunity to look at the draft?
LORD JUSTICE LONGMORE: Yes, Mr Birnbaum. Thank you for giving us that opportunity. I think perhaps what troubles us about the idea of certifying a point is it has to be a point of law of general public importance, does it not, and this seems to be the only time in the history of the Code since 1984 that this sort of problem has arisen?
MR BIRNBAUM: It is the only problem that has come to the attention of the courts. The general importance of it is this. It is a matter that was adverted to in the case of Forbes, that matters of judgment of this kind should not be left simply to the officer in the case, who may have the interests of the investigation rather than the interests of justice in the forefront of his mind. In my submission if it becomes generally known to police officers that they are entitled in effect - if you will forgive the word - to 'edit' the disclosure that they make so as not to notify the defendant of what defendants would think to be a fundamental point, such as "I only saw him from there", if that becomes a current view among police officers then it may, as I sought to persuade you in my original argument, encourage negligent and sharp practice. In other words, it could be the beginning of a slippery slope and one could see more of these cases. So the mere fact that a case of this kind has not arisen before as far as we know --
LORD JUSTICE LONGMORE: That is a perfectly fair proposition.
MR BIRNBAUM: -- does not mean that it might not arise again. In my submission, if your Lordships' judgment is correct - and that is what I seek another view about - then it might encourage other such cases to arise.
If your Lordship looks at my (ii), which I have given alternative drafts of, the point of that is that one aspect that your Lordships' judgment does not touch upon is: whose decision is it under the second sentence of the Code where the parade may be held if the officer in charge of the investigation thinks it would be useful; whose decision is it? Does the identification parade officer have no say on it, when it is, in my submission, his obligation to ensure the fairness of the proceedings?
LORD JUSTICE LONGMORE: Would it not be better to wait until such a situation does in fact arise?
MR BIRNBAUM: My Lord, it should arise, because part of my argument is not only that the disclosure has to be made to the defence, but also that it has to be made to the parade officer, because if he does not have that disclosure he is inhibited in ensuring the fairness of the proceedings as an independent supervisor. So (ii) does have a general significance.
One of the things that is intriguing about the wealth of authority that one finds on identification parades is that nowhere does there ever seem to have been any consideration of what is to happen if, for example, the parade officer thinks that what the investigating officer wants is unfair and wrong. Whose decision is it under limb 2 of the relevant rule, which I think is rule B:2.3?
LORD JUSTICE LONGMORE: Yes. What is the difference between your two (ii)s? I see the difference in phrasing.
MR BIRNBAUM: Yes.
LORD JUSTICE LONGMORE: But if the second of your question (ii)s is answered, it would answer the first one.
MR BIRNBAUM: It would. Frankly I did not find it easy to formulate the point, so I thought I would give two alternative formulations without suggesting that one was better than the other. But the point of (ii) is to highlight the importance of the role of the identification parade officer in ensuring fairness.
LORD JUSTICE LONGMORE: Yes. Very well, you have given a copy to Mr Ellison, have you?
MR BIRNBAUM: Yes, I have.
LORD JUSTICE LONGMORE: We will ask Mr Ellison if he has any submissions.
MR ELLISON: I do not support the application that is made. In my submission in part it is soliciting a change in the Code, because the Code is expressly clear that the officer in the case is in a position to ask for a parade if he thinks it is useful; and in the second part it is a tangential question in the issue in the appeal as to who ultimately, if there was a dispute, has the right to say whether a parade occurs or not.
But in my submission the Code at present is clear: it has given the decision to embark on the procedure to the officer and it has given the conduct of the procedure to the inspector. So in my submission they do not raise questions of law of public importance.
LORD JUSTICE LONGMORE: I see. Of course you object to the whole procedure, but supposing we accepted what you said about (ii) as a question, is there anything you would wish to say about whether question (i) on its own should at least be certified?
MR ELLISON: It depends whether it raises a point of law of general public importance, in my submission. I can only submit, as I have, that the Code is expressly clear, that it is the officer in the case and that there is no obligation disclosed, the obligation to disclose being set out in the Code in the first description.
LORD JUSTICE LONGMORE: Yes.
MR ELLISON: I do not think I can help the Court further on that. It is a question for the Court's view.
MR BIRNBAUM: Might I mention one point? That is just to remind my Lord of a sentence you might have in mind at Forbes, as per my learned friend's address on the Code:
"We agree with the Court of Appeal in Popat that paragraph 2.3 should not be construed to cover all possible situations."
And the problem about this - as I was struggling to submit to my Lords originally - is that this is perhaps one of those cases that does occasionally occur which falls in between the cracks of the Code and where one has to look not only at the Code but what is required by the general obligation of fairness.
LORD JUSTICE LONGMORE: Yes, thank you. We will just retire for a few moments to consider the question of certification.
(The Court adjourned for a short time.)
LORD JUSTICE LONGMORE: We are asked to certify a point of law of general public importance for the purpose of seeking leave to appeal to the House of Lords. We have decided that we will certify the following question:
"Where an eyewitness to an offence has asserted that he did not see the face of the culprit and the officer in charge of the investigation wishes that witness to view an identification parade, is there any obligation upon him to inform either the suspect or the identification officer of that assertion arising under (a) the Codes of Practice; (b) the Crown's general duty of fairness?"
We do not propose to certify any other question, and we refuse leave to appeal to the House of Lords.
MR BIRNBAUM: May I mention a consequential matter? I am told via clerk, who got it from the Criminal Appeal Office, that your Lordships have power to order legal aid to cover an application for leave to their Lordships' House. If that be so, then I make the application.
(The Bench conferred.)
LORD JUSTICE LONGMORE: Like you, Mr Birnbaum, I am afraid I do not know whether we have that power. All we can do is to say if we have that power we will grant legal aid for such application.
MR BIRNBAUM: Thank you for granting my hypothetical application.
LORD JUSTICE LONGMORE: We are grateful to counsel for their assistance in this case.
